In Defense of Concurrences
There are many more concurring opinions lately, and that may be a good thing.
This past term at the Texas Supreme Court, the justices wrote a total of 30 concurring opinions. That’s 7 more than last term, 13 more than the term before that, and 11 more than the term before that.1 And, coincidentally enough, the first opinion issued for SCOTX’s 2023-24 term was an opinion concurring in the denial of a petition for review.2 I don’t want to infer too much from all this, but there seems to be an upward trend in separate opinions at the Court.
And I think this is a good thing. In fact, a few days ago, the Texas Review of Law & Politics published a short piece I wrote analyzing, and largely commending, a concurring opinion written by my former boss. This post is not a plug to read it (though I certainly won’t stop you). Instead, I wanted to use it as a brief opportunity to defend concurring opinions. They’ve been taking some heat lately, and most notably by Justice Elana Kagan, who thought that the increasing number of concurring opinions was "not a good thing for the Court." She explained:
It prevents us, I think, from giving the kind of guidance that lower courts have a right to expect, that the public has a right to expect. It muddies the waters of our decisions.
As a practical matter, I tend to agree. It’s a little overwhelming to open up an opinion like Vidal v. Ester and see a line up like this:
At the same time, though, I think it’s refreshing to see. Not because the law is clearer for it (probably the opposite), but because clarity is not a singular objective to be achieved at all costs. Separate opinions, including concurrences, can advance other values, like restraint and modesty.
Take restraint. Professor Richard Re has explained that writing separate opinions can build up “personal precedent,” a body of idiosyncratic views to which judges will “commit themselves, and their future votes.”3 Judges who write separately, Re explains, will presumably feel bound not only by “institutional precedent” (i.e., opinions receiving a majority vote) but also by the positions they have staked out in separate opinions. I agree. The draw of personal consistency can, at a minimum, serve as “an inoculant against arbitrariness and partisanship,”4 allowing judges to stay faithful to their preferred styles and methodologies.
Consider also modesty. Before Chief Justice Marshall introduced the “Opinion of the Court,” appellate judges would write seriatim opinions. When each justice wrote his own opinion in a case, the parties would have to read each one to figure out the disposition and the common rationale (if any).5 It wasn’t easy, of course, but it also forced the parties to focus on something that is basically an afterthought today: the judgment.
My tenuous theory is that we can probably draw a straight line from the discontinuation of seriatim opinions to the modern phenomena of reading judicial opinions as if they were statutes6 and mistaking opinion language for opinion holdings.7 I’m sure that somewhere along that line, too (certainly before Erie), it was much easier to say with a straight face what Sir Matthew Hale was able to utter before John Marshall took to the bench: that opinions are only evidence of the law, not the law itself.8 Indeed, when the Texas Supreme Court feels compelled to say, as recently as last year, that its “decisions are not themselves the statutes they interpret,”9 it’s evident that there’s a longstanding misperception about the nature of judicial opinions.
Anyway, this is all to say that more concurrences (or even dissents, for that matter) brings us closer to a time in which opinions were perceived as modest explanations for the underlying judgment that bound only the parties, not edicts applicable to society at large.
Whether one would prefer clarity over modesty and restraint is a separate and harder question for which I have no ready answer. It may depend on whether we’re talking about the Supreme Court or an intermediate appellate court—a point made by the “Great Concurrer,” Judge Kevin Newsom—who suggested that the Supreme Court has loftier obligations to the rule of law.10 It also may depend on the whether judges are using concurring opinions to opine on issues not properly presented, essentially end-running the prohibition on advisory opinions. Committing oneself to a position via “personal precedent” in the absence of adversarial testing may not be an exercise of restraint or modesty, in my view.
Whatever the variable or nuance to account for, though, I don’t think more concurring opinions is an intrinsically bad development. I’m of a different mind. There’s much to admire about it.
I drew the first number from my own records, and the second two numbers from the excellent SCOTXBlog, run by Don Cruse.
See 22-0730, Dickson v. American General Life Insurance Company (Young, J., concurring in the denial of the petition for review).
Richard M. Re, Personal Precedent, 136 Harv. L. Rev. 824, 827 (2023).
Ibid.
Ronald D. Rotunda, The Fall of Seriatim Opinions and the Rise of the Supreme Court, Verdict (Oct. 9, 2017), https://verdict.justia.com/2017/10/09/fall-seriatim-opinions-rise-supreme-court.
See Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979).
See Alexander v. Sandoval, 532 U.S. 275, 282 (2001) (“[T]his Court is bound by holdings, not language.”).
Sir Matthew Hale, The History of the Common Law of England 45 (3d. ed. 1739).
Brown v. City of Houston, 660 S.W.3d 749, 752 (2023).
See David Lat, The Great ‘ Concurrer’: Judge Kevin Newsome, Original Jurisdiction (Aug. 21, 2024).