I have heard more than one of my professors suggest an erroneous legal idea regarding the Supreme Court. Specifically, they have proposed that the most moderate Supreme Court justice to sign onto the official majority opinion is the justice whose position truly counts. Thus by their reasoning, if Anthony Kennedy writes another one of his idiotic “concurring” opinions contradicting the majority opinion, we should pay attention to his ideas just because he is the magical “swing vote.” A clue for the wise: Concurring opinions are just moral sermons. They carry no actual, legal weight. Get over yourself, Justice Kennedy!
If a judge isn’t fully satisfied with the majority opinion that he voted for, then he can feel free to write his own moral sermon critiquing it. But he shouldn’t pretend like his own opinion matters more than everyone else’s. If he really were willing to jump ship at not getting his way, he wouldn’t have even voted for the majority opinion in the first place!
Assume the following hypothetical:
1) Justice Scalia writes the official majority opinion, taking a hard conservative line during a five-four vote, while
2) Justice O’Connor votes for Scalia’s majority opinion but also writes a more liberal concurring opinion undermining the majority opinion.
3) Justice Thomas writes his own concurring opinion taking a more conservative position than O’Connor, perhaps even more conservative than Scalia.
Whose concurrence is more important, O’Connor’s or Thomas’s?
If you thought O’Connor’s opinion was more important because she was the swing vote — THINK AGAIN. They’re both equally important. If the majority opinion had been liberalized then for all we know Thomas could have bailed just as easily as O’Connor. Just because one judge likes to act like (s)he can jump ship from consistent legal theory at any moment (and frequently does so) doesn’t give him/her any additional power. One person, one vote.
There is no magic in being a moderate. If you’re a moderate, it just means you take emotional positions and lack a consistent, logical philosophy. You shouldn’t even be a judge at all.