Dissents and concurrences without opinion date back to the early Supreme Court, with the Marshall Court (1801-1835) recording forty-one separate opinions without opinion.
Between 1997 and 2014, (24) an average of about twelve published cases per year (approximately 0.25 percent (25)) have included silent concurrences. (26) There is considerable circuit variation: The First Circuit never uses the silent concurrence; the Second, Third, and Seventh rarely do; and the Fifth and Eleventh use it most often.
Neither senior nor visiting judges use silent concurrences at a higher rate than active judges.
Judges can issue both "swing" and "non-swing" silent concurrences. (32) A swing silent concurrence provides a critical vote for the majority result (even as it withholds support for the opinion), while a non-swing silent concurrence is merely the third vote on a panel whose other two judges embrace the majority opinion in full.
Silent concurrences ought to be evaluated alongside other instruments of negative judicial agenda-setting.
Statistical analysis of the dataset presented above--encompassing all silent concurrences in the federal courts of appeals from 1997 to 2014--is consistent with this view.
Seeking rationales for separate concurrences, the author provides an empirical analysis of their use by the Supreme Court of Canada under Chief Justices Dickson, Lamer, and McLachlin.
This typology indicates that writing separate concurrences is a common and often rational strategy.
Nonetheless, judges of the Supreme Court of Canada continue to write separate concurrences. By 25 October 2007, the McLachlin Court, which began in January 2000, had already written eighty-seven separate concurrences--about eleven every year--and these have totalled just over 300,000 words.
It might be thought that concurrences do not need to be investigated very closely because they ultimately do not matter.
At least some of the time--indeed, as I will suggest, most of the time--separate concurrences express differences of opinion that are just as significant (and sometimes more so) as those expressed in dissents.
Information inputted into the database now includes the style of cause, the application and hearing and decision dates, the result, the type of law involved, whether the decisions are unanimous or include dissents or concurrences, which judges served on the panel and what reasons they wrote or signed, which court the case is being appealed from, whether the action was successful in that court and whether the decision's set of reasons were unanimous, and a word count for every set of reasons.