Why does Justice Kavanaugh write Concurrences?

On Monday, Judge Kavanaugh spoke at Notre Dame Law School. I copied his remarks. At 38:20, Dean Cole somewhat jokingly asked if he would NCAA vs. Alston it would extend to the editors of law reviews.

Dean Cole: Since you’re using sports analogies, the next question is, do you think your concurrence in NCAA v. Alston might cover fields and bodies outside of college football, for example, like legal journals or the Notre Dame Law Review?

Kavanaugh, as is his wont, went far beyond the question asked. Indeed, he did just that in his NCAA vs. Alston Consent: Go beyond the question asked to address the legality of other NCAA compensation rules. And Justice Kavanaugh explained why decided to address issues that were not presented. Here is his answer, which lasts about two minutes.

Judge Kavanaugh: Definitely, you know, and I can, I can’t even understand the question. I’ll say, NCAA vs. Alston. If you asked me, you know, you’ve been on the field for four years. What is your favorite opinion? The opinion that you think, you know, you’d like the most is that it wouldn’t be a surprise that NCAA v. Alston, my concurrence, would be at the top of my list as well, probably with the Flowers v. Mississippi majority opinion as well. The Ramos and Louisiana matches are the ones that I look back on so far and say, you know, I think I contributed to those cases. And I think I did a pretty decent job. In those cases, the match and NCAA vs. Alston. I thought it was important to say because I was concerned, that’s probably the question, but why do you write matches? I always wonder the same thing. Is this really worth it? And I came I have a good book of unpublished opinions that I never thought about—that I threw away as worthless. That’s what I thought it was worth it because I thought there was you run the risk that you might read the majority opinion and think, “Well, everything else is bullshit.” And I didn’t think that, in terms of restrictions on student athletes, and I thought that should be said, and I thought that should be said clearly and directly and succinctly and I spent a lot, it’s five pages, but put a lot of time into exactly how to express things that are. And I just thought, you know, when a group of organizations get together and make a lot of money and agree to suppress the money that goes to the people, who are the actual athletes who generate all the money, many of whom are from low-income families, many of whom are African-American , that something is really wrong with that picture, both legally and otherwise. And I thought it was important to say that in the case of the NCAA.

I find this to be the most revealing aspect of the entire interview.

First, Kavanaugh says it openly NCAA vs. Alston was his favorite opinion. For a long time I suspected that this was his favorite opinion. We know he likes sports. And he loves antitrust law. And he managed to right what he considered an injustice. It’s a perfect match for Kavanaugh.

Second, Kavanaugh wonders internally if the match is “worth it.” Why was she his Alston match “worth”? Here, he says, there was a risk that Judge Gorsuch’s majority opinion could be interpreted too narrowly. Well, agreeing, he put things a little differently:

But this case involves only a narrow subset of the NCAA’s compensation rules—namely, rules that limit the education-related benefits that student-athletes can receive, such as scholarships after qualifying for graduate or professional school. The rest of the NCAA compensation rules are not at issue here and therefore remain on the books. Those remaining compensation rules generally restrict student-athletes from receiving compensation or benefits from their colleges for playing sports. And those rules have also historically limited student-athletes from receiving money from endorsement deals and the like. I add this concurring opinion to emphasize that the remaining NCAA compensation rules also raise serious questions under the antitrust laws. Three points require emphasis.

The concurrence then went on to explain why the NCCA “lacks such justification” for its “remaining fee rules.” Kavanaugh didn’t just express concern about Gorsuch’s opinion, which could be interpreted as supporting other rules. Instead, Kavanaugh reached out to decide the legality of these other rules. These were the rules not shown in this case. I see nothing restrained or minimalistic about this approach.

Third, why did Kavanaugh think it was “worth it” to decide the issues that weren’t presented Alston? Because he almost always does! His separate writings routinely address issues not presented, most recently in the Dobbs and the bridge. These matches, in my opinion, were not “worth it”.

Fourth, we learn that Judge Kavanaugh may actually have a “good book of unpublished opinions” that he never published. This is a smart practice. Believe it or not, I write a lot of blog posts that I never hit the “publish” button on. I write a lot of emails that I never send. I often tear apart early drafts of my articles and summaries, to remove lines I know I’ll regret. Some of the writing I’m most proud of is stuff you’ll never see. If only the bridge and Dobbs matches made it to the burning book.

Finally, I’m not so sure Kavanaugh’s opinion will help the vast majority of student-athletes. Recent profile in The New York Times The magazine suggests that name similarity contracts (NILs) will mainly benefit elite basketball and football players. Now boosters, who would normally donate money to schools, will give money directly to bluechip players through NIL contracts. Because of this, athletic departments will receive less money. And athletes in almost every other sport will lose funding. How will universities make up for this shortfall? Look at another Supreme Court case, NCAA vs. Murphy, which paved the way for online gambling. Now casinos are working hand-in-hand with sports departments to attract young, impressionable minds to gambling apps. I’ll admit, I’m not comfortable with the sudden shift toward facilitating addiction that can destroy lives.

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