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Vol. 103, Issue 4


Divide & Concur: Separate Opinions & Legal Change

Thomas B. Bennett, Associate, Kellogg, Hansen, Todd, Figel & Frederick, P.L.L.C.

Barry Friedman, Jacob D. Fuchsberg Professor of Law, New York University School of Law

Andrew D. Martin, Chancellor, Washington University in St. Louis, School of Law

Susan Navarro Smelcer, Assistant Professor of Law, Georgia State Law

29 Jul 2020

To the extent concurring opinions elicit commentary at all, it is largely contempt. They are condemned for muddying the clarity of the law, fracturing the court, and diminishing the authoritative voice of the majority. But what if this neglect, or even disdain, of concurring opinions is off the mark? In this article, we argue for the importance of concurring opinions, demonstrating how they serve as the pulse and compass of legal change. Concurring opinions let us know what is happening below the surface of the law, thereby encouraging litigants to push the law in particular directions. This is particularly true of a type of concurrence we identify here for the first time: the “pivotal” concurrence. Pivotal concurrences occur when one or more members of a court majority also choose to write separately, undercutting the majority’s rule in the case. Under the Supreme Court’s “rule of five,” lower courts ought to disregard pivotal concurrences and adhere to the majority opinion. But as we show here, that is hardly the case.

Utilizing a dataset created for this purpose, we demonstrate that pivotal concurrences are more common than one might think, are becoming yet more so, and-despite the Supreme Court’s admonition to the contrary-are taken quite seriously by lower courts. Especially in constitutional, salient cases, lower courts appear to disregard a binding majority opinion in favor of the path offered by the concurrence. Rather than condemning this, we rely on the historical development of concurrences to show the vital function they play in motivating and smoothing the way for legal change. Contrary to conventional wisdom, we argue, there is beauty in a fractured court. Precisely in those cases that are most high-stakes and most contentious, it is important that the Justices reveal their individual views. Those views send essential signals to litigants and lawyers about where legal change is possible and where it is not, helping both to temper expectations and to move the law itself.

To read more of Divide & Concur: Separate Opinions & Legal Change, click here.