Concurring in Part & Concurring in the Confusion
10 Pages Posted: 20 Sep 2005
This essay addresses some of the least analyzed words in Supreme Court separate opinions. These are the words that follow the comma after the authoring Justice's name such as "concurring," "dissenting," "concurring in part," "concurring in the judgment" or some combination thereof. Specifically, the question arises of what power these "after the comma" phrases should yield when an opinion is labeled as "concurring" but the text conflicts significantly with the opinion of the Court. In other words, should concurring in name trump dissenting in substance? A recent example of this dilemma is found in the D.C. Circuit Court of Appeals' reliance on Justice Powell's "concurring" opinion in the Supreme Court reporter's privilege case of Branzburg v. Hayes. In Branzburg, as in other cases, the proper interpretation of Justice Powell's "pseudo-concurrence" is particularly important because it provides the fifth vote for the majority decision. Yet confusion over how to read Branzburg has ensued - some courts focus on the text of the Powell opinion, rather than the "concurring" label, and treat Branzburg as a mere plurality opinion while others rely on the "after the comma" label and declare Branzburg to be a five-justice majority. This essay concludes that the "after the comma" phrases are useful guidelines to the Justices' positions but should not override the more detailed reasoning in the text of the separate opinion. When the two conflict, it should be viewed as an opportunity to return to the Court's seriatim roots where each Justice's rationale is analyzed individually.
Keywords: Supreme Court, concurring, plurality, seriatim
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