The Rise of the ‘Great Concurrer’
In the evolving landscape of the Roberts Court, the traditional methodology of Supreme Court influence is shifting. While historical figures like Justice William Brennan defined their legacies as “playmakers” through majority opinions, and Justice John Marshall Harlan became “The Great Dissenter,” Justice Brett Kavanaugh is carving out a distinct path as the court’s most prolific author of concurring opinions. As of July 2026, Kavanaugh has completed his eighth term on the bench, maintaining a 95% rate of alignment with the majority—a statistic that positions him firmly within the court’s center bloc alongside Chief Justice John Roberts and Justice Amy Coney Barrett.
Unlike Chief Justice Roberts, who frequently avoids writing separate opinions, Kavanaugh utilizes concurrences as a primary vehicle for his jurisprudence. Observers note that his approach serves three strategic functions: demonstrating respect for opposing arguments, educating the public on the limits of court rulings, and signaling future legal directions.
Strategic Jurisprudence
Kavanaugh’s concurring opinions often serve to temper the perceived radicalism of the court’s rulings. In the landmark 2022 decision Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade, Kavanaugh’s concurrence emphasized the “irreconcilable conflict” between competing interests, explicitly stating his respect for advocates on both sides. This diplomatic tone stood in stark contrast to the more assertive language of the majority opinion, suggesting a deliberate effort to maintain institutional legitimacy amidst intense public scrutiny.
Similarly, in New York State Rifle & Pistol Association v. Bruen, Kavanaugh joined with the Chief Justice to clarify that the court’s decision did not prohibit states from maintaining existing “shall-issue” licensing regimes. By defining the scope of the ruling, Kavanaugh sought to provide clarity to both the public and lower courts, potentially mitigating the political fallout of the decision.
Institutional Tensions
The practice is not without controversy. Critics, including academics like Professor Meg Penrose, argue that the proliferation of separate opinions creates “clutter,” which can obscure the actual holding of the majority. Furthermore, some legal scholars contend that Kavanaugh’s tendency to address issues not strictly presented in a case—such as his concurrence in NCAA v. Alston—amounts to an advisory opinion, straying from the principle of judicial minimalism.
The most visible tension arose in Noem v. Vasquez Perdomo, where Kavanaugh’s 10-page concurrence regarding immigration stops drew sharp, public criticism from Justice Sonia Sotomayor. Sotomayor criticized the opinion for failing to account for the real-world impact of such stops on hourly workers, a critique that underscored a deepening divide over the court’s role in addressing the practical consequences of its emergency docket decisions.
The Path Forward
Ultimately, Kavanaugh’s concurrences suggest a justice attempting to move the law in a conservative direction from the center of the court. By distinguishing his approach from the more dogmatic style of Justice Clarence Thomas, Kavanaugh aims to sustain the court’s institutional authority while simultaneously signaling his views on emerging legal questions. Whether this strategy succeeds in maintaining public confidence while implementing significant shifts in constitutional law remains the central question of the current court term.