Circumstance and Strategy: Jointly Authored Supreme Court Opinions

61 Pages Posted: 22 May 2012

See all articles by Laura Ray

Laura Ray

Widener University - Delaware Law School

Date Written: May 22, 2012

Abstract

The standard form of authorship for a Supreme Court opinion is a single author who then may be joined by any colleagues who are in agreement. There is, however, a significant and overlooked variant of this form, one used in a small cluster of major cases, most of them landmark decisions, over the past seventy years: the jointly authored opinion. In these cases, there may be as many as nine authors signing an opinion (as in Cooper v. Aaron) or as few as two (as in McConnell v. FEC). All the signatories may be credited with the entire opinion (as in Regents of the University of California v. Bakke) or separate Justices may make clear their authorship of separate parts of the opinion (as in Planned Parenthood v. Casey). And while in many instances a unified final product conceals the elaborate negotiations and compromises that preceded it, in others the opinion may deliberately reveal remaining differences among the authors. This article, the first to examine the jointly authored opinion as a form of judicial expression, explores the various circumstances leading to its use in seven Supreme Court cases and the strategies employed in its execution. It finds that the jointly authored opinion sends subtle messages that illuminate the inevitable tension on a collegial Court between the claims of individual judicial identity and the need for consensus to achieve a workable resolution.

Keywords: Supreme Court, judges, justices. authorship, opinions, legal writing, jointly authored opinions

JEL Classification: K10

Suggested Citation

Ray, Laura, Circumstance and Strategy: Jointly Authored Supreme Court Opinions (May 22, 2012). Nevada Law Review, Vol. 12, p. 727, Summer 2012, Widener Law School Legal Studies Research Paper No. 12-19, Available at SSRN: https://ssrn.com/abstract=2064927

Laura Ray (Contact Author)

Widener University - Delaware Law School ( email )

4601 Concord Pike
Wilmington, DE 19803-0406
United States

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