The Justices Write Separately: Uses of the Concurrence by the Rehnquist Court
Widener University - School of Law
UC Davis Law Review, Vol. 23, 1990
The concurrence is a neglected element of appellate jurisprudence. Although there is a substantial literature about the dissent, little has been said about the role of the concurrence. This article identifies and examines the ways in which members of the Rehnquist Court have employed this flexible device to serve a variety of purposes. The limiting concurrence, the most traditional use, allows a member of the majority to qualify agreement through the caveat that the Court's opinion should apply only to the circumstances of the present case. In contrast, the expansive concurrence, a much less common use, seeks to enlarge the applicability of the majority opinion. The emphatic concurrence seeks only to underscore its author's view of the majority position. Finally, the doctrinal concurrence offers its own alternate theory to reach the majority's result; it is the quintessentially right result, wrong reason opinion. The consequences of the use of the concurrence include a substitution of a plurality opinion for a majority opinion, an obstacle to a purely unanimous opinion, or a splintered decision that undermines the force of a more cohesive outcome. Although critics of the Rehnquist Court have complained that such uses weaken the Court's authority, they may also provide benefits by deferring resolution of a difficult issue to a more suitable case, by illuminating for bench and bar the implications of a majority opinion, or by placing an opinion in context. Used with restraint, the concurrence may contribute to a more finely tuned jurisprudence.
Number of Pages in PDF File: 55
Keywords: concurrence, Supreme Court, opinions, appellate jurisprudence, Rehnquist Court
JEL Classification: K1Accepted Paper Series
Date posted: December 4, 2011
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