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Concurring opinions

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Significance: Concurring opinions often alert the legal community to the significance of the opinion for the Court or to nuances in that opinion and can be particularly significant when only a plurality joins the opinion of the Court.


The Supreme Court produces an opinion for the Court in each case it resolves, but individual justices or groups of justices may file separately, setting forth the differences between their views and those stated in the opinion for the Court. The opinion written by a justice who agrees with the result reached in the opinion for the Court but disagrees on some other point is a concurring opinion. That written by a justice who disagrees with the Court's decision is a dissenting opinion. If the case raises several issues, a separate opinion can concur in part and dissent in part. A concurring opinion's author may join the opinion of the Court but often either joins only part of it or does not join it at all. Concurring opinions can serve many purposes. A justice may write one to influence the legal community's interpretation of the opinion for the Court. A concurring justice may seek to limit the implications or reach of the Court's decision or, conversely, may suggest that the opinion of the Court states too limited a rule of decision. Justices also write concurring opinions for more personal reasons, such as the desire to create a unique philosophy over the course of several cases. For example, in the 1990's Justice Antonin Scalia regularly wrote concurrences arguing that courts should not use legislative history when interpreting statutes. A concurring opinion may also simply state the justice's alternative reason for coming to the decision the Court reached. Concurring opinions have special significance when fewer than five justices join the opinion of the Court (making the decision a plurality decision) or when the votes of the concurring justices are necessary for the Court's opinion to have the support of five justices. Some concurring opinions, such as those by Justice Lewis F. Powell, Jr., in Regents of the University of California v. Bakke (1978) and Branzburg v. Hayes (1972), profoundly affect the development of the law because they are issued in the absence of a clear majority. When five justices (or more) join the opinion of the Court, any concurring opinion will probably carry less weight. Nevertheless, some such concurring opinions gain significance because they set forth a cogent approach that can be applied to other cases or because they may indicate the Court's future direction.



Further Reading

  • Flanders, Robert G. “The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable.” Roger Williams University Law Review 4 (Spring, 1999): 401.
  • Stephens, Richard B. “The Function of Concurring and Dissenting Opinions in Courts of Last Resort.” University of Florida Law Review 5 (Winter, 1952): 394-410.