Critics might also argue that the proliferation of silent concurrences diminishes the quality of judicial decisionmaking because silent judges lose the opportunity of fully exploring alternate bases for decision that might reveal themselves during the process of writing full concurring opinions, (80) and majority authors lose out on the possibility of learning from criticisms advanced by concurring judges' opinions.
Silent concurrences also provide an informational benefit by allowing judges to cast votes that more accurately reflect their doubts.
Some critics claim that silent concurrences violate litigants' right to a fully reasoned explanation of the judicial decision.
Silent concurrences are surely flawed, and may impose significant costs on both the parties to an individual case and the legal system in general.
Silent concurrences are a rare but stable feature of federal appellate judicial decisionmaking.
To determine the number of silent concurrences, I screened the results of Westlaw searches for all published cases in the federal courts of appeals during the ten-year study period using "'concur!' /3 'judgment'" and "'concur!' /3 'result'" as search strategies.
It is intriguing that the judges of the Court have invented language for separate concurrences that clearly indicates from the very start the nature and extent of their disagreement.
My argument is that these occasions clearly identify a "judgment swing" as deliberations after conference moved enough votes to allow the initial minority reasons to become a judgment and vice versa; this has happened sixty times for separate concurrences (and ninety times for dissents) since 1984.
To anticipate my conclusion, the frequency of the various types is heavily skewed toward those types reflecting significant disagreement: although some separate concurrences represent rather modest levels of disagreement within the panel, concurrences typically organize around much more substantive and deep-seated disagreements.
Concurrences in this category are never the second set of reasons for a judicial decision, but arise when a decision of the Court is in place and a set of minority reasons has been written (separate concurrences are more likely, but one-fifth of the time it is a dissent).
If a single judge is to be associated with this style of disagreement, it is Justice Gonthier: alone, he accounted for more than one-quarter of the fifty-one examples of this category of disagreement, and conversely, this category of disagreement accounted for roughly half of his own separate concurrences (Justices Cory, La Forest and Lamer were in an approximate three-way tie for second place, each with about half as many bridging opinions as Justice Gonthier).
However, it would be a mistake to write such concurrences off altogether.