I Concur! Do I Matter?: Developing a Framework for Determining the Precedential Influence of Concurring Opinions
Volume 84, No. 3, Spring 2012
By Ryan M. Moore

In the 2009 Term, over three-quarters of the opinions published by the Supreme Court of the United States included a concurring opinion written by an individual Justice; an astounding record for the High Court. What makes this high-water mark all the more surprising is that the Justices recognize the importance of issuing unanimous opinions in the name of clarity. Nonetheless, the Justices continue to issue separate opinions expressing their individual points of view. Some scholars say the practice does nothing but cause confusion. Others claim that it legitimizes the individual jurists on the Court. Regardless, the Justices continue to pen concurring opinions, and everyone continues to read them.

A concurring opinion, or concurrence, is a judicial opinion in which the authoring judge or justice agrees with the lead opinion on certain merits of the case, but writes separately for any number of reasons, which are usually articulated within the concurrence itself. Despite their prevalence, concurring opinions written by a single appellate-level jurist are not considered binding upon lower courts and have almost no dispositive impact upon the law on which they speak. Yet, tales of concurring opinions subsequently influencing real law are familiar to even first-year law students. How can we distinguish between those concurrences that may one day become highly influential and those that will be largely forgotten over time? With the increase in political polarization in the United States, the influence of individual opinions by United States Supreme Court Justices could prove substantial for those subscribing to theories of judicial decision makers as strategic actors. A particular concurrence, adhering to what a judicial actor views as a personally persuasive legal (or political) argument could provide activist judicial decision makers with an opportunity to alter Supreme Court doctrine at their will. As a result of this risk, a better position is to build some form of predictive framework for concurring opinions—where their precedential influence is based on pragmatic, as opposed to emotional or ideological, concerns.

Realistically, there may not be a sure way to predict whether any one concurrence will end up revolutionizing the law it touches. That being said, analogizing modern concepts of precedent and judicial decision making provides insight into possible factors that may affect the determination of a concurrence’s future influence. Because much of American jurisprudence is built on common law traditions, which allot a certain amount of creativity to judicial decision makers, the idea of a concurrence gaining significant influence as a legal precedent is not particularly foreign. It has occurred before and will inevitably occur again. Positive subsequent treatment, persuasiveness of the legal argument, the prominence or belovedness of the authoring jurist, or authorship by the essential swing vote may all influence the precedential strength of a particular concurrence.

Although no list could be exhaustive, the issue addressed in this Comment is whether some of the factors determinate in a concurrence gaining precedential influence can be identified, analyzed, and applied to a specific concurrence based on its form and interaction with the lead opinion. Due to the attention Justice Thomas’s concurring opinion in McDonald v. City of Chicago attracted in the legal academy, this Comment will use that concurrence as a test case, and focus on determining what, if any, precedential influence that concurrence could have, and the paths the concurrence could take in gaining and exercising that influence. In sum, this Comment argues that due to the persuasiveness of Justice Thomas’s argument, the relatively low risk of subsequent reversal any lower federal courts may face in applying that argument to alternate contexts, and Justice Thomas’s ever-evolving judicial reputation, it is quite possible that Justice Thomas’s McDonald concurrence will have a substantive impact on future legal precedents.

This Comment first lays out an historical account of concurring opinions, briefly explaining why a particular Justice may choose to draft a concurrence. Often, concurrences begin as persuasive attempts to rally a Justice’s colleagues to his viewpoint after conference of a particular case. Part II.A focuses on providing an historical background as to how the modern concurrence has developed and worked itself into Supreme Court jurisprudence. Part II.B then begins by articulating how modern concepts of precedent and judicial decision making support the idea of a concurrence having influence as precedent. Justification for such an occurrence results primarily from the fact that following the reasoning or rule embodied in a concurrence is a legitimate option available to judicial actors, just as the ability to write a concurrence is part of the judicial currency available in influencing future pathways of law.

Having established a foundation on which to stand, Part II.B.3 describes the six different classifications of concurrences articulated by several scholars. In turn, each concurrence type is viewed in light of the aforementioned concepts of precedent and judicial decision making, and several possible factors for determining future precedential influence are discerned for each concurrence type. With that, Part II.C further expounds on the posture, substance, and disposition of Justice Thomas’s McDonald concurrence and explains why it is an appropriate test case for the analysis suggested in Part II.B.3.

Part III begins by classifying Justice Thomas’s McDonald concurrence into one of the six concurrence types based on its form and interplay with the lead opinion. The future precedential influence of Justice Thomas’s McDonald concurrence is then analyzed based on three suggested factors: (1) whether Justice Thomas’s argument is compellingly persuasive in nature, (2) whether adherence to Justice Thomas’s argument presents a high risk of subsequent reversal to future judicial actors, and (3) whether Justice Thomas’s reputation as a jurist adversely or positively affects the persuasiveness of his legal argument. Finally, Part III.B.4 applies the three aforementioned factors to Justice Thomas’s McDonald concurrence and discusses the potential for its future influence as a legal precedent.

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