Pamela C. Corley - Concurring Opinion Writing on the U.S. Supreme Court

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SUNY series in American Constitutionalism

Robert J. Spitzer, editor

Concurring Opinion Writing on the U.S. Supreme Court

PAMELA C. CORLEY

Published by

State University of New York Press, Albany

2010 State University of New York

All rights reserved

Printed in the United States of America

No part of this book may be used or reproduced in any manner whatsoever without written permission. No part of this book may be stored in a retrieval system or transmitted in any form or by any means including electronic, electrostatic, magnetic tape, mechanical, photocopying, recording, or otherwise without the prior permission in writing of the publisher.

For information, contact State University of New York Press, Albany, NY

www.sunypress.edu

Production by Ryan Morris

Marketing by Anne M. Valentine

Library of Congress Cataloging-in-Publication Data

Corley, Pamela C., 1967

Concurring opinion writing on the U.S. Supreme Court / Pamela C. Corley.

p. cm. (SUNY series in American constitutionalism)

Includes bibliographical references and index.

ISBN 978-1-4384-3067-6 (hardcover : alk. paper)

ISBN 978-1-4384-3066-9 (pbk. : alk. paper)

1. United States. Supreme Court. 2. Concurring opinionsUnited States. 3. Judicial processUnited States I. Title.

KF8742.C67 2010

347.73'26dc22 2009023198

10 9 8 7 6 5 4 3 2 1

To my husband Greg and my daughter Megan

Illustrations

Figures
Proportion of Cases with at Least One Concurrence Versus Proportion of Cases with at Least One Dissent
Proportion of Cases with Concurring and Dissenting Opinions, 19372004 Terms

Tables
Proportion of Cases with at Least One Concurrence Versus Proportion of Cases with at Least One Dissent
Summary of Hypotheses
Types of Concurrences, by Justice (19861989)
Results of Concurrence Model
Predicted Probabilities of Justices' Decisions to Write or Join a Specific Type of Concurrence Versus Joining the Majority Opinion (19861989)
Bargaining and Accommodation Between Blackmun and Marshall and the other Justices, 19861989 Terms
Distribution of the Types of Concurrences: Supreme Court Versus Courts of Appeals
Summary of Model of Impact of Concurrences on Lower Court Compliance
Predicted Probabilities of Positive Treatment by the Lower Courts
Summary of Model of Impact of Multiple Concurrences on Lower Court Compliance
Summary of the Impact of the Type of Concurrence on the Supreme Court's Positive Treatment of its Own Precedent
Predicted Probabilities of Positive Treatment by the Supreme Court
List of Cases, the Type of Concurrence, and the Justice Writing the Concurrence
Multinomial Logit Model of Justices' Decisions to Write or Join a Specific Type of Concurrence Versus Joining the Majority Decision (19861989 Terms)
Descriptive Statistics for Independent Variables in Multinomial Logit Model of Justices' Decisions to Write or Join a Specific Type of Concurrence Versus Joining the Majority Decision (19861989 Terms)
Logit Model of the Impact of Concurrences on Treatment of Supreme Court Precedent in the Courts of Appeals
Descriptive Statistics for Independent Variables in Logit Model of the Impact of Concurrences on Treatment of Supreme Court Precedent in the Courts of Appeals
Logit Model of the Impact of Multiple Concurrences on Treatment of Supreme Court Precedent in the Courts of Appeals
Predicted Probabilities of Positive Treatment, by Circuit
Logit Model of the Impact of Type of Concurrence on Positive Treatment of Supreme Court Precedent by the Supreme Court
Descriptive Statistics for Independent Variables in Logit Model of the Impact of the Type of Concurrence on Positive Treatment of Supreme Court Precedent by the Supreme Court

Acknowledgments

In writing this book I received a great deal of help and I would like to acknowledge those whose support made this project possible. First, I thank Bob Howard. Without his guidance and support I would not have completed this project. He was an incredible mentor when I was a graduate student and he still continues in that role. I also thank Dave Nixon and Scott Graves, both of whom provided a great deal of assistance in the beginning stages of this project.

I am also grateful to a number of scholars for their advice and comments. I am particularly grateful to Larry Baum, Paul Collins, Christian Grose, Suzanne Globetti, Marc Hetherington, Stefanie Lindquist, Kirk Randazzo, Neal Tate, and Chris Zorn. Special thanks to Art Ward for reading the entire manuscript and offering invaluable suggestions. For their research assistance, I thank Camille Burge, Sarah Hinde, Gbemende Johnson, Jennifer Selin, and Jenna Lukasik. I also thank Steve Wermiel, who has always given me support and encouragement.

Early versions of this research were presented at the annual meetings of the Midwest Political Science Association (2004, 2006) and the Southern Political Science Association (2005, 2006). Special thanks go to the many colleagues who offered comments and suggestions. Additionally, an earlier version of was published as Bargaining and Accommodation on the United States Supreme Court: Insight from Justice Blackmun in Judicature (90, pp. 15765, JanuaryFebruary 2007).

Finally, I thank my husband Greg and my daughter Megan, to whom I am grateful for their love and support.

1
Introduction

During his introductory remarks at Judge Samuel Alito's Supreme Court confirmation hearings, Senate Judiciary Committee Chairman Arlen Specter referred to Justice Robert H. Jackson's concurrence in :

This hearing comes at a time of great national concern about the balance between civil rights and the president's national security authority. The president's constitutional powers as commander in chief to conduct electronic surveillance appear to conflict with what Congress has said in the Foreign Intelligence Surveillance Act. This conflict involves very major considerations raised by Justice Jackson's historic concurrence in the Youngstown Steel seizure cases where [he] noted, quote, What is at stake is the equilibrium established in our constitutional system. ()

Jackson's concurrence has been called the greatest single opinion ever written by a Supreme Court justice (), establishing the starting framework for analyzing all future foreign relations and individual liberties problems.

Youngstown involved a labor dispute in the steel industry during the Korean War. President Harry S. Truman issued an executive order directing the secretary of commerce to seize the steel mills and keep them operating. Truman argued this was a necessary action to prevent a national catastrophe which would inevitably result from a stoppage of steel production (582). The Court overturned the order, holding that presidential authority must stem either from an act of Congress or the Constitution itself (585). According to the Court, the Commander in Chief Clause does not give the president ultimate power to take possession of private property in order to keep labor disputes from stopping production (587). That power belongs only to Congress.

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