The Wisdom of Soft Judicial Power: Mr. Justice Powell Concurring

10 Pages Posted: 4 Nov 2008 Last revised: 9 Nov 2008

Samuel Estreicher

New York University Law School

Tristan Pelham-Webb

NYU School of Law

Date Written: November 2, 2008

Abstract

President Theodore Roosevelt was famous for remarking that one should "talk softly and carry a big stick." Justice Powell did not need a big stick, garnering long-term acceptance of his views by writing soft-spoken concurrences that served to limit the reach of broadly framed majority and plurality opinions. This paper focuses on Powell's ability to influence the path of the law through arguably precedential concurrences as opposed to withholding his vote from the majority and then dissenting. We examine cases during the 1975-1981 Terms when his vote was the fifth vote necessary to form a majority and when his was but the sixth or seventh vote; in our data set, the Powell opinion often was taken by lower courts as stating the holding of the Court. Powell's preference for concurrence and his position as the swing vote during much of his tenure on the Court allowed him to have a significant impact on future courts and cases, and may serve as a salutary example for judges on multimember courts.

Keywords: Constitutional Law, Supreme Court, Judicial Behavior, Multimember Courts

JEL Classification: K10, K40, K41

Suggested Citation

Estreicher, Samuel and Pelham-Webb, Tristan, The Wisdom of Soft Judicial Power: Mr. Justice Powell Concurring (November 2, 2008). NYU School of Law, Public Law Research Paper No. 08-33. Available at SSRN: https://ssrn.com/abstract=1293950 or http://dx.doi.org/10.2139/ssrn.1293950

Samuel Estreicher (Contact Author)

New York University Law School ( email )

40 Washington Square South
New York, NY 10012-1099
United States
(212) 998-6226 (Phone)
(212) 995-4341 (Fax)

Tristan Pelham-Webb

NYU School of Law ( email )

245 Sullivan Street
office 626
New York, NY 10012-1301
United States

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