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.Wahlbeck, et al.(1999) foundthat justices in a minimum winning, majority conference coalition are lesslikely to write or join a special concurrence.Because doctrinal concurrencesdisagree with the reasoning of the Court, and, consequently, are more likelyto be classified as special concurrences, a doctrinal concurrence probably isless likely to be written or joined in cases involving a minimum winningcoalition.7 Additionally, it is probably the case that a limiting concurrence isless likely in cases involving a minimum winning coalition.The reason forthis expectation is because in the case of Marks v.United States (1977), theSupreme Court formalized the narrowest grounds doctrine. According tothis doctrine, when a fragmented Court decides a case and no single rationaleexplaining the result has the vote of five justices, the holding of the Courtmay be viewed as that position taken by those Members who concurred inthe judgments on the narrowest grounds (193).Thus, in cases involving aminimum winning coalition, the majority opinion writer should be more likelyto accommodate the justice who wishes to limit the reach of the majorityopinion because if he does not, that justice may be in a position to controlthe policy promulgated by the Court.Additionally, the emphatic concurrence has been described as thesafety valve that permits a justice to join with or make possible a majority(Ray 1990).By allowing its author to clarify his or her understanding of theCourt s holding, the emphatic concurrence may in some instances work tocreate a fragile consensus.If this is true, the emphatic concurrence may beused more often in closely divided cases, such as cases involving minimumwinning coalitions.The measure I use for minimum winning coalition is from the Jus-tice-Centered Rehnquist Court Database (Benesh and Spaeth 2003) andis coded 1 if yes, 0 otherwise.If coded 1, this means the reported vote inthe case was decided by a one-vote margin or by a two-vote margin whenthe winning coalition has five votes or less.Therefore, minimum winningcoalitions are those decided by 5 4 and 4 3, or by a 5 3 or 4 2 vote thatreverses the decision of the lower court.Institutional FactorsThe chief justice is in a special position given his institutional role, and,consequently, is less likely to write concurring and dissenting opinions (seeBrenner and Heberlig 2002), perhaps because he is likely to believe thatwriting dissenting and concurring opinions will reflect a lack of leadership 30 Concurring Opinion Writing on the U.S.Supreme Courton the Court.O Brien (1999) explained that Rehnquist wrote fewer dissent-ing and concurring opinions after becoming chief.Additionally, research hasshown that chief justices are less likely to write or join special concurrences(Wahlbeck, et al.1999).Thus, given that limiting, doctrinal, and reluctantconcurring opinions do not support the majority opinion, I expect thatRehnquist is less likely to write or join those types of opinions.Further-more, the unnecessary concurrence, although it does not provide a reasonfor the disagreement, does not join the majority opinion, merely concurringin the outcome.Therefore, Rehnquist is less likely to note an unnecessaryconcurrence.8 I coded each observation for Chief Justice Rehnquist as 1,0 otherwise.Acclimation effects may influence the type of concurrence the justicechooses to write or join (see Hettinger, Lindquist and Martinek 2003;Wahlbeck, et al.1999).New justices do not have any Supreme Courtexperience to guide their behavior.They must acclimate themselves to theirnew environment, learning the expectations of the Court, and the differentnorms and procedures (see Hettinger, et al.2003; 2006).This means thatnew justices may be more likely to avoid conflict or vote more moderatelybecause they are unsure about their place on the Court.Thus, I expect that freshman justices will be less likely to write or join the concurrences thatare less supportive of the majority opinion: limiting, doctrinal, and reluctant.I created a freshmen variable, which was coded 1 if a justice had served lessthan two complete terms on the bench, 0 otherwise.Table 2.1 summarizes the hypotheses presented here.Table 2.1.Summary of HypothesesVariable Type of Concurrence InfluencedJustice-specificIdeological compatibility Limiting, expansive, reluctantTaught law Limiting, expansive, doctrinalCooperation Limiting, doctrinalCase-specificComplexity Limiting, doctrinal, emphaticImportance Limiting, expansive, doctrinal, emphaticMinimum winning coalition Doctrinal, emphatic, limitingInstitutionalChief justice Limiting, doctrinal, reluctant, unnecessaryFreshman justice Limiting, doctrinal, reluctant Why Justices Write or Join 31Estimating a Model of Concurring Opinion WritingHaving developed a comprehensive explanation of an individual justice s deci-sion to write or join a particular type of concurrence rather than joining themajority, I now test this explanation using empirical data.As stated earlier,the data to test these hypotheses come from the Justice-Centered RehnquistCourt Database for the terms 1986 through 1989 (Benesh and Spaeth 2003).The population is all orally argued, signed opinions.Because this studyfocuses on justices who agree with the result, I excluded the observations inwhich the justice dissented.I also excluded opinions concurring in part anddissenting in part, because they do not accept the Court s judgment in itsentirety (Ray 1990).9 Finally, I excluded the observations where the justicewas the majority opinion writer, given that I am explaining why justicesdecide to write or join concurring opinions.10Of the 3,033 justice observations, 2,646 (87%) joined the majorityopinion, whereas 387 (13%) of the observations involved a justice writing orjoining a concurrence.Of those 387 observations, 120 (31%) were limitingconcurrences, 16 (4%) were reluctant, 53 (14%) expansive, 51 (13%) emphatic,138 (36%) doctrinal, and 9 (2%) unnecessary.Although a majority of theconcurrences are expressing disagreement in some fashion with the majorityopinion, more than 25 percent of the concurrences are quite supportive ofthe majority decision.Thus, treating all concurrences as disagreement masksimportant differences and variations among the justices behavior.Table 2.2 (next page) presents the type of concurrence written orjoined by each justice.As shown in Table 2.2, limiting and doctrinal concurrences are usedmore frequently by a majority of the justices who choose to write or join aconcurrence.Thus, it appears that the concurrence is mostly used as a wayto contract and limit the reach of the majority opinion or used as a rightresult, wrong reason device.Chief Justice Rehnquist wrote or joined the lim-iting concurrence the most as a percentage of the total concurrences (35.7%)although he only wrote or joined fourteen concurring opinions.Scalia, on theother hand, wrote or joined seventy-six concurring opinions.Marshall andBrennan wrote or joined the doctrinal concurrence the most as a percentageof their total (53% and 45.2%, respectively).Clearly, concurrences serve as away for the justices to express their preferences not just with the dispositionof the case (who wins and who loses), but also over the substantive policythat the opinion represents.The dependent variable is the type of concurrence.I estimated a multi-nomial logit model on a seven-category dependent variable: justice joins major-ity opinion, justice writes or joins a limiting, reluctant, expansive, emphatic,doctrinal, or an unnecessary concurrence
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