Concurring Opinion in the United States

Statement from a member of an appellate court that reflects agreement on the outcome, but differences in rationale for that outcome. Concurring opinions may vary quite widely in the extent to which they depart from the majority opinion. In some instances, it may be only a narrow difference. A justice may wish to mention, for example, one additional reason for arriving at the outcome, or place emphasis a little differently across several supporting points. On the other hand, a justice may disagree on virtually all the reasons upon which the rest of the majority bases its decision. In such a case, the justice may be among the majority “in result only,” and the concurring opinion would depart extensively from the reasons featured in the majority opinion.

Analysis and Relevance

A concurring opinion is optional. It is issued by judges on an individual basis when they wish to express different reasons for arriving at the same decision as the rest of the majority (or plurality). The role of the concurring opinion can be seen in the case of Furman v. Georgia (408 U.S. 258: 1972). The majority of the Court decided that Georgia’s practice of assigning total discretion to juries in death penalty cases was unconstitutional. The outcome was represented in a brief per curiam opinion. Justice Stewart concurred in this result and emphasized the arbitrariness of unstructured sentencer discretion. Justice White also found the practice defective, but because it was so infrequently imposed by juries. Justice Douglas found particular fault with the racially discriminatory impact of its application. Finally, the concurring opinion of Justices Brennan and Marshall asserted that capital punishment is unconstitutional under any circumstance. It is evident from this case that concurring opinions may represent a broad array of viewpoints. The only common ground is agreement by those justices writing the concurring opinions on which of the parties should win.

Notes and References

Definition of Concurring Opinion from the American Law Dictionary, 1991, California

Concurring Opinion in the United States