Legal Commentary

Clarity in Supreme Court Opinions, and the Role of Concurrences

By Orin Kerr

Adam Liptak has a somewhat puzzling critique of Supreme Court opinions in the New York Times. Two quick responses:

1. No matter what Supreme Court opinions look like, there will always be someone who criticizes them for not being clear enough. If an opinion is long, the criticism will be that the opinion has too much discussion that leaves the meaning of the decision uncertain. If an opinion is short, the criticism becomes that the opinion does not provide enough explanation and therefore leaves its meaning uncertain. If an opinion is based on a narrow ground, the criticism will be that it does not resolve enough to really clarify the law. On the other hand, if the opinion is broad, the criticism becomes that it resolves so much at once that it creates more questions than it answers and leaves the law muddied. (If an opinion manages to be of exactly average length and scope, then the criticism becomes that the opinion is too bland.)

2. I was surprised by this discussion in Liptak?s essay:

Concurrences present the bench and bar with a particular difficulty.

?A dissent tends to be a clear signal that this is one justice who is not on board with whatever scheme his or her brethren are concocting,? Sonja R. West wrote in The Michigan Law Review in 2006. ?Things become murky? where concurrences are involved, she went on, as ?closer inspection is needed to fully understand the justice?s position.?

Concurrences, except when they provide the court with a crucial vote, are not binding. But it is a rare judge or law clerk who pays them no heed, as they can explain, limit or amplify aspects of the court?s decision.

I have a different sense of things. In my experience, judges and lawyers in the lower courts know exactly what to do with concurrences in Supreme Court opinions that don?t provide the crucial vote. For the most part they just ignore them, unless the concurrences happen to have some language that the lawyer or judge needs to support the argument they?re making anyway.

One possible exception is a concurrence that purports to explain the majority opinion when the majority opinion is quite murky. In that relatively rare case, judges might rely on the concurrence to make sense of what the majority was trying to do but did not successfully articulate. But even then, it?s risky business to rely on such concurrences: Often such concurrences reflect what the concurring Justice wants the opinion to mean rather than what its author intended to say. (My sense is that Justice Breyer?s concurring opinions do this more often than those of other Justices: Breyer will write an opinion expressing his understanding of the majority opinion that will have a significant dose of Justice Breyer?s own normative view of what the opinion should have said but does not.) Either way, I don?t tend to think that concurrences are a significant source of confusion in the law.

Full post as published by The Volokh Conspiracy on November 17, 2010 (boomark / email).