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.
Meg Penrose, Goodbye to Concurring Opinions, 15 Duke Journal of Constitutional Law & Public Policy 25-52 (2020)
Available at: https://scholarship.law.duke.edu/djclpp/vol15/iss1/2