The Kavanaugh Concurrence Is The New Kennedy Concurrence

For a generation, Justice Kennedy was the swing vote on the Supreme Court. In almost every major case, you could expect a concurrence by Justice Kennedy to moderate the holding. And they would always include the same message: I agree with the Court, but let me announce some limits that no one else agreed to. And invariably, the lower courts would treat those limitations as if they were controlling. Forget the Marks rule. Everyone follow the Kennedy rule.

Here are a smattering of those concurrences in cases large and small:

  • Trump v. Hawaii (2018): “I join the Court’s opinion in full . . . In all events, it is appropriate to make this further observation.”
  • Pereira v. Sessions (2018): “I agree with the Court’s opinion and join it in full. This separate writing is to note my concern with the way in which the Court’s opinion in Chevron USA Inc. v. Natural Resources Defense Council, Inc. (1984), has come to be understood and applied.”
  • Burwell v. Hobby Lobby Stores (2014): “It seems to me appropriate, in joining the Court’s opinion, to add these few remarks.”
  • Arizona v. Inter Tribal Council of Arizona (2013): “The opinion for the Court insists on stating a proposition that, in my respectful view, is unnecessary for the proper disposition of the case and is incorrect in any event.”
  • Kiobel v. Royal Dutch Petroleum (2013): “The opinion for the Court is careful to leave open a number of significant questions regarding the reach and interpretation of the Alien Tort Statute. In my view that is a proper disposition.”
  • Christian Legal Society v. Martinez (2010): “These observations are offered to support the analysis set forth in the opinion of the Court, which I join.”
  • US v. Comstock (2010): “The Court is correct, in my view, to hold that the challenged portions of 18 USC § 4248 are necessary and proper exercises of congressional authority. . . . This separate writing serves two purposes.”
  • Summers v. Earth Island Institute (2009): “I join in full the opinion of the Court . . . this case would present different considerations if Congress had sought to provide redress for a concrete injury ‘giv[ing] rise to a case or controversy where none existed before.”‘”
  • Parents Involved in Community Schools v. Seattle School Dist. No. 1 (2007): “I agree with THE CHIEF JUSTICE that we have jurisdiction to decide the cases before us and join Parts I and II of the Court’s opinion. I also join Parts III–A and III–C for reasons provided below. do not allow me to join the balance of the opinion by THE CHIEF JUSTICE, which seems to me to be inconsistent in both its approach and its implications with the history, meaning, and reach of the Equal Protection Clause.”
  • Hein v. Freedom from Religion Foundation (2007): “In my view the result reached in Flast is correct and should not be called into question. For the reasons set forth by Justice ALITO, however, Fast should not be extended to permit taxpayer standing in the instant matter. And I join his opinion in full.”
  • Randall v. Sorrel (2006): “Viewed within the legal universe we have ratified and helped create, the result the plurality reaches is correct; given my own skepticism regarding that system and its operation, however, it seems to me appropriate to concur only in the judgment. “
  • Rapanos v. US (2006): “Although both the plurality opinion and the dissent by Justice SEVENS (hereinafter the dissent) discuss the background of these cases in some detail, a further discussion of the relevant statutes, regulations, and facts may clarify the analysis suggested here. “
  • Hudson v. Michigan (2006): “Two points should be underscored with respect to today’s decision.”
  • Kelo v. City of New London (2005): “I join the opinion for the Court and add these further observations.”
  • Lingle v. Chevron (2005): “This separate writing is to note that today’s decision does not foreclose the possibility that a regulation might be so arbitrary or irrational as to violate due process.”
  • Rumsfeld v. Padilla (2004): “Though I join the opinion of the Court, this separate opinion is added to state my understanding of how the statute should be interpreted in light of the Court’s holding.”
  • Rasul v. Bush (2004): “The Court is correct, in my view, to conclude that federal courts have jurisdiction to consider challenges to the legality of the detention of foreign nationals held at the Guantanamo Bay Naval Base in Cuba. While I reach the same conclusion, my analysis follows a different course.”
  • Vieth v. Jubelirer (2004): “The Court is correct to refrain from directing this substantial intrusion into the Nation’s political life. While agreeing with the plurality that the complaint the appellants filed in the District Court must be dismissed, and while understanding that great caution is necessary when approaching this subject, I would not foreclose all possibility of judicial relief if some limited and precise rationale were found to correct an established violation of the Constitution in some redistricting cases.”
  • Georgia v. Ashcroft (2003): “With these observations, I join the opinion of the Court.”
  • Republican Part of Minnesota v. White (2002): “So I join its opinion. I adhere to my view, however, that content-based speech restrictions that do not fall within any traditional exception should be invalidated without inquiry into narrow tailoring or compelling government interests.”
  • Clinton v. City of New York (1998): “With these observations, I join the opinion of the Court.”
  • US Term Limits v. Thornton (1995): “I join the opinion of the court.
    The majority and dissenting opinions demonstrate the intricacy of the question whether or not the Qualifications Clauses are exclusive. In my view, however, it is well settled that the whole people of the United States asserted their political identity and unity of purpose when they created the federal system. “
  • US v. Lopez (1995): “history gives me some pause about today’s decision, but I join the Court’s opinion with these observations on what I conceive to be its necessary though limited holding.”

In 2018, Justice Kennedy was replaced by Justice Kavanuagh. And, in the process, the Kennedy Concurrence has been replaced by the Kavanuagh Concurrence. During Kavanaugh’s brief tenure, he has written many solo concurrences that purport to find limits on the majority opinion. By my count, Justice Kavanaugh often uses the same limiting language: underscore, emphasize, explain, add, and note.

  • Nielsen v. Preap (2019): “I write separately to stress the narrowness of the issue before us and, in particular, to stress what this case is not about.”
  • Bucklew v. Precythe (2019): “Under those precedents, I agree with the Court’s holding and join the Court’s opinion. I write to underscore the Court’s additional holding that the alternative method of execution need not be authorized under current state law—a legal issue that had been uncertain before today’s decision.”
  • American Legion v. American Humanist Association (2019): “I join the Court’s eloquent and persuasive opinion in full. I write separately to stress two points.”
  • County of Maui, Hawaii v. Hawaii Wildlife Fund (2020): “I join the Court’s opinion in full. I write separately to stress three points.”
  • New York State Rifle & Pistol Association v. City of New York (2020): “I agree with the per curiam opinion’s resolution of the procedural issues before us—namely, that petitioners’ claim for injunctive relief against New York City’s old rule is moot and that petitioners’ new claims should be addressed as appropriate in the first instance by the Court of Appeals and the District Court on remand.
    I also agree with Justice ALITO’s general analysis of Heller and McDonald.”
  • Uzuegbunam v. Preczewski (2021): “I agree with the Court that, as a matter of history and precedent, a plaintiff’s request for nominal damages can satisfy the redressability requirement for Article III standing and can keep an otherwise moot case alive. I write separately to note that I agree with THE CHIEF JUSTICE and the Solicitor General that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.”
  • CIC Services, LLC v. Internal Revenue Service (2021): “I join the Court’s opinion in full. I write separately to underscore what remains (and does not remain) of Alexander v. Americans United Inc. (1974), and Bob Jones Univ. v. Simon (1974), in the wake of the Court’s decision today.”
  • Caniglia v. Strom (2021): “I join the Court’s opinion in full. I write separately to underscore and elaborate on THE CHIEF JUSTICE’s point that the Court’s decision does not prevent police officers from taking reasonable steps to assist those who are inside a home and in need of aid.”
  • Cedar Point Nursery v. Hassid (2021): “I join the Court’s opinion, which carefully adheres to constitutional text, history, and precedent. I write separately to explain that, in my view, the Court’s precedent in NLRB v. Babcock & Wilcox (1956), also strongly supports today’s decision.”
  • Ramirez v. Collier (2022): “I join the Court’s opinion in full, and I write separately to add three points: one about the recent history of litigation involving religious advisors in execution rooms; a second about the difficulty of applying RLUIPA’s compelling interest and least restrictive means standards; and a third about state execution procedures going forward.”
  • New York State Rifle & Pistol Association, Inc. v. Bruen (2022): “I join the Court’s opinion, and I write separately to underscore two important points about the limits of the Court’s decision.”
  • Dobbs v. Jackson Women’s Health Organization (2022): “I write separately to explain my additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of today’s decision.”

In time, lower courts will seize upon the Kavanaugh opinions as the actual opinions of the court. I will write about the final two concurrences in Bruen and Dobbs in another post.

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