CONCURRING OPINION

When a member of a multi-judge court agrees with the decision reached by the majority but disagrees with the reasoning of the opinion of the court or wishes to add his own remarks, he will customarily file a concurring opinion. The concurring opinion usually proposes an alternative way of reaching the same result. Once relatively rare, separate concurrences have become, in the late twentieth century, a normal part of the workings of the Supreme Court of the United States.

A concurring opinion may diverge from the majority opinion only slightly or only on technical points, or it may propose an entirely different line of argument. One example of the latter sort is found in rochin v. california (1952) in which the concurring opinions staked out a much bolder course of constitutional interpretation than the majority was willing to follow. In a constitutional system in which great issues of public policy are decided in controversies between private litigants, the principles of law enunciated in the opinions are usually of far greater importance than the decision with respect to the parties to the case. Sometimes dissenting Justices are closer to the majority on principles than are concurring Justices.

In the most important cases, several Justices may write separate opinions, even though there is substantial agreement on the grounds for deciding the case. dred scott v. sandford (1857) and the capital punishment cases (1972) are examples of cases in which every Justice filed a separate concurring or dissenting opinion.

Scholars generally agree that separate concurrences often diminish the authority of the court's decision and reduce the degree of certainty of the law. Some critics have suggested elimination of concurring opinions, especially when they are filed by Justices who also subscribe to the majority opinion. But concurring opinions, no less than dissenting opinions, provide alternative courses for future constitutional development.

Dennis J. Mahoney
(1986)