Document Type

Article

Publication Year

2020

Journal Title

Duke Journal of Constitutional Law & Public Policy

Abstract

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.

First Page

25

Last Page

52

Num Pages

28

Volume Number

15

Issue Number

1

FIle Type

PDF

Share

COinS
 
 

To view the content in your browser, please download Adobe Reader or, alternately,
you may Download the file to your hard drive.

NOTE: The latest versions of Adobe Reader do not support viewing PDF files within Firefox on Mac OS and if you are using a modern (Intel) Mac, there is no official plugin for viewing PDF files within the browser window.