In the Supreme Court, there is a hierarchy for listing opinions. The majority opinion always comes first. When the Court is split and there is no clear majority, the most supported opinion is usually listed first. When the case is an absolute group, sometimes the opinion of the most senior judge is listed first, but there is play in the joints. After the majority/controlling opinion, the competitions are classified by seniority. Next come the judgment-only competitions, which are also ranked by seniority. Finally, the dissents are listed, which are again sorted by seniority.
Where there are multiple dissents, the majority opinion will designate a particular dissent as the “main dissent”. But the term “main competition” is much rarer. A quick search of Westlaw reveals only one such use before 2021. In Morrison v National Australia Bank Ltd.(2010), Judge Scalia wrote the majority opinion, Judge Breyer wrote an opinion concurring in part and concurring with the judgment, and Judge Stevens wrote an opinion concurring only with the judgment. Justice Scalia referred to Justice Stevens’ opinion as a “primary concordance.”
More recently, the phrase “main competition” has appeared twice. In Lange v. California (2021), Justice Kagan wrote the majority opinion, Justice Kavanaugh wrote an agreement, Justice Thomas wrote an opinion concurring in part and concurring with the judgment, and Chief Justice Roberts wrote an opinion concurring with the jugement. Justice Kagan’s majority opinion called Justice Kavanaugh’s opinion a “primary concordance.”
And yesterday the Court decided Sackett v EPA. Justice Alito wrote the majority opinion, Justice Thomas wrote a concurring opinion, Justice Kagan wrote a judgment competition, and Justice Kavanaugh wrote a judgment competition. Justice Kagan’s dissent, again, referred to Justice Kavanaugh’s separate writing as “the primary agreement.” Kagan’s opinion, which had three votes, was ranked first because it has more seniority, but Kavanaugh’s opinion had four votes. I guess the number of votes makes this the “main contest”.
In two cases, decided over the span of two years, Judge Kagan referred to Judge Kavanaugh’s agreement as the “master agreement.” Not much to see here, but I like to follow these new nomenclatures on the Court.
Finally, I would be remiss if I didn’t point out an obvious pun, given that President Nixon signed the Clean Water Act: SCOTUS said Bag to me!
THE Lemon test was established in 1971, the Clean Water Act was passed in 1972, and deer was decided in 1973. The Nixon years don’t have a good time on the Supreme Court.
