Goodbye to Concurring Opinions

29 Pages Posted: 15 Oct 2019 Last revised: 26 May 2020

Date Written: September 12, 2019

Abstract

Modern Supreme Court opinions are too long. They are too fractured. And they often lack clarity. Separate opinions, particularly concurring opinions, are largely to blame. Today’s justices are more inclined to publish separate opinions than their predecessors. The justices do not want to read lengthy briefs but appear willing to publish lengthy opinions. Yet the justices owe us clarity. They should want the law to be understandable—and understood. In hopes of achieving greater legal clarity, this article calls for an end to concurring opinions.

The modern Court writes more separate opinions than past courts. It is becoming far too common that in a given term there will be more separate opinions than majority opinions. This is causing problems for judges, lawyers, law students, and ordinary Americans. Surely most cases do not necessitate separate writing. Whether these separate opinions are driven by ego, politics, law clerks, celebrity, a desire to be a part of the legal “conversation,” or the refusal to accept that a particular justice’s approach failed to garner sufficient votes to serve as the majority opinion, they should stop. A return to seriatim opinions poses institutional risks. Rarely do concurring opinions become future law.

Little is gained through concurring opinions. It is time to discard the myth that an add-on opinion will one day become binding precedent. It rarely happens. And the regular costs are not worth the rare advantages.

This article seeks Supreme Court reform. The justices should voluntarily agree to stop writing concurring opinions. My thesis is simple: it is time to say goodbye to concurring opinions.

Suggested Citation

Penrose, Meg Mary Margaret, Goodbye to Concurring Opinions (September 12, 2019). Duke Journal of Constitutional Law & Public Policy, Vol. 15, Iss. 1, 2020; Texas A&M University School of Law Legal Studies Research Paper 19-47. Available at SSRN: https://ssrn.com/abstract=3452729

Meg Mary Margaret Penrose (Contact Author)

Texas A&M University School of Law ( email )

1515 Commerce St.
Fort Worth, TX 76102
United States

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