By Joan Biskupic, CNN Chief Supreme Court Analyst
(CNN) — The extraordinary number of dueling opinions in the Supreme Court’s tariff case, laying bare divisions among the justices, also became the basis for a punch line.
At the courtroom lectern this week in a dispute between an energy-pipeline company and the state of Michigan, lawyer John Bursch contended his position could lead to an easy decision: “I mean, it could be an opinion that’s 160 pages less than the tariffs opinion last week.”
“Well,” said Justice Samuel Alito as he and other justices began laughing, “That’s certainly a goal to aim for.”
Chief Justice John Roberts’ face brightened, and he appeared especially amused as the exchange played out. Roberts had written the court’s main opinion striking down the Trump administration tariffs, then waited weeks as colleagues finished their various additional opinions.
The seven separate opinions in the Learning Resources v. Trump tariffs case demonstrated how a case can become a forum for airing larger doctrinal differences.
Or, sometimes, the justices simply want to vent.
The result can be a lack of clarity in the law as the general public, along with lawyers and judges, navigate competing views.
The number of concurrences – writings by a justice who signs onto the majority’s bottom-line but adds a separate angle – has been rising at the contemporary court. That’s a reflection of increased polarization and shows that justices within the standard conservative and liberal blocs often splinter in their legal reasoning and approach.
Roberts’ opinion for the majority in the tariffs dispute was an efficient 21 pages. The principal dissenting opinion, written by Justice Brett Kavanaugh, stretched to 63 pages. But then four other justices, who’d sided with Roberts, wrote concurring opinions: Neil Gorsuch, Amy Coney Barrett, Elena Kagan, and Ketanji Brown Jackson. The most expansive came from Gorsuch, at 46 pages. Clarence Thomas added a separate dissenting opinion.
The writings totaled 164 pages, with another six for the accompanying syllabus.
“I felt very left out in the tariffs case,” Alito told Bursch drolly. “Justice Sotomayor didn’t write and I didn’t write.”
Rejoined Sonia Sotomayor, as the others chuckled, “Maybe we’ll have a chance here.”
Quips aside, the competing views in the dispute over Trump’s assertion of unilateral power for tariffs on foreign goods surprised the legal community.
“I was struck with just how many and how long the separate opinions were,” said University of Pennsylvania law professor Jean Galbraith. “Justice Gorsuch’s opinion was notable for pointedly throwing down the gauntlet, at his colleagues, which had the effect making all of them feel they had to write more in response.”
Why justices are writing more
In prior decades, justices tended to write concurring opinions to make clear the limits of a majority ruling, said Galbraith, an international law scholar who earlier served as a law clerk to the late Justice John Paul Stevens.
“Concurrences these days are often being used for big brush strokes,” she said, “for laying out and defending broad judicial philosophies. That’s what was going on in the tariff opinions.”
The extended debate in Learning Resources v. Trump concerned modes of statutory interpretation more than the nuts-and-bolts of tariff policy. Such seemingly abstract differences can often consume the members of the country’s highest court more than which side wins or loses.
Similarly, in a 2024 dispute