Last week, we completed our analysis of which Justices of the Court have written the most (and least) dissents on both the civil and criminal sides of the docket since 2000, and which Justices tend to write the longest dissents. So the obvious follow-up is to look at concurrences. On the one hand, there are a number of examples on most appellate courts of last resort where an approach to a problem has originated in a concurring opinion before ultimately being adopted by a majority of the Court – so concurrences certainly have their uses. On the other hand, concurrences and dissents likely increase lag times since additional opinions have to be prepared and the majority opinion is likely revised to respond to the other opinions. And some scholars have argued that too many concurrences will tend to muddle the clarity of a Court’s guidance to lower courts on the law, as well as increasing conflict. We’ll begin with concurrences on the civil side between 2000 and 2007.
Concurrences on the civil side during those years were relatively equally spread between Justices Brown (17 concurrences), Kennard (18 concurrences), Werdegar (16 concurrences) and Moreno (16 concurrences). But for 2000, Justice Mosk was the most frequent “concurrer” on the civil side, with seven concurrences, followed by Justice Werdegar with five. There were less than half as many civil concurrences the following year court-wide, and Chief Justice George and Justices Brown, Kennard and Werdegar each wrote two apiece. In 2002, concurring jumped again, as Justice Brown led with seven, followed by Justice Kennard with five. For 2003, Justice Werdegar led with four, and Justices Brown, Kennard and Moreno each had three. The following year, concurrences were down again. Justice Moreno led with seven, but Justice Brown was the only other Justice with more than one (she had two).
Concurrences stayed low for the rest of the period. In 2005, Justice Moreno’s three civil concurrences were enough for the court lead; three other Justices wrote only one. The result was the same in 2006 – three civil concurrences by Justice Moreno, one each from four others. In 2007, there were only five civil concurrences – two each by Justices Werdegar and Baxter, and one by Justice Kennard.
Justice Chin averaged the longest concurrences in 2000 – 12 pages. Chief Justice George averaged six pages, Justice Brown averaged 5.67 pages, Justice Werdegar averaged 3.3 pages, Justice Mosk averaged 3.14 pages, and Justice Kennard averaged three page concurrences. In 2001, Chief Justice George averaged the longest concurrences at 6.5 pages. Justice Kennard averaged 2.5 pages, Justice Werdegar 2 pages, Justice Brown 1.5 pages, and Justice Mosk averaged concurrences of 1 page. For 2002, Justice Moreno led the Court, with concurrences averaging 7.67 pages apiece. Justice Kennard averaged 2.8 pages, Justice Brown 2.71 pages, and Justice Werdegar averaged 2.67 pages apiece. For 2003, Justice Baxter led with an average concurrence of 12 pages. Justices Kennard and Chin averaged six pages apiece. Justices Brown and Moreno averaged 3.5 pages each. For 2003, Justice Baxter led, averaging 12 pages per concurrence. Justice Brown averaged 7.33 pages. Justice Moreno averaged eight pages, Justice Brown averaged 7.33 pages and Chief Justice George averaged four pages.
In 2004, Justice Baxter led the Court, averaging concurrences of 14 pages. Justices Kennard and Chin averaged six pages, and Justices Brown and Moreno averaged 3.5 pages. For 2005, Justices Kennard and Chin led the Court, averaging four pages per concurrence. Justice Moreno averaged 2.67 pages, and Justice Werdegar averaged one page. In 2006, Chief Justice George led the Court, averaging seven pages per concurrence. Justice Chin averaged six pages, Justice Werdegar five pages, Justice Baxter four pages, and Justice Werdegar averaged 2.67 pages per concurrence. In 2007, Justice Kennard averaged three pages per concurrence. Justices Werdegar and Baxter averaged a page and a half that year.
Join us tomorrow as turn our attention to the Court’s concurrences in criminal cases during the years 2004 through 2007.