What is the difference between a concurring opinion and dissenting opinion by the Supreme Court?

The Vote in the Case

Table of Contents Show

Types of concurring opinions
Concurring opinions by region
Terminology at the various courts
Notable concurring opinions

Variable Name
vote

Spaeth Name
HARV to BRYV

Normalizations
8 [ view ]

This variable provides information about each justice's vote in the case. It appears in the Justice Centered Datasets only. A regular concurrence is when the justice agrees with the Court's opinion as well as its disposition. A special concurence (i.e., a concurence in the judgment) is when the justice agrees with the Court's disposition but not its opinion. A jurisdictional dissent is when the justice disagrees with the Court's assertion or denial of jurisdiction. Such votes are counted as nonparticipations. Determination of how a given justice voted is by no means a simple matter of culling the Reports. The justices do not always make their options clear. Two problems, in particular, afflict efforts to specify votes: 1) whether the vote is a regular or a special concurrence, and 2) the treatment to be accorded a vote "concurring in part and dissenting in part." The first typically manifests itself when a justice joins the opinion of the Court "except for . . ." Because such exceptions typically tend to approach de minimis status, these are coded as regular concurrences. For example, Chief Justice Burger concurred in the opinion of the Court in New York Gaslight Club, Inc. v. Carey, except for "footnote 6 thereof." 447 U.S. 54, at 71. Similarly, Blackmun's agreement with the Court in Pruneyard Shopping Center v. Robins, except for "that sentence thereof . . ." 447 U.S. 74, at 88. Where the Reports identify a justice as "concurring" or "concurring in part" said justice is treated as a member of the majority opinion coalition (i.e., as = 3), rather than a merely concurring in the result (i.e., as = 4). Whereas the preceding problem pertains to determining which type of concurrence a vote is, the problem with votes concurring and dissenting in part is whether they are special concurrences (= 4) or dissents (= 2). This matter was addressed previously in connection with the variable voteUnclear (vote not clearly specified). A vote concurring and dissenting in part is listed as a special concurrence if the justice(s) doing so does not disagree with the majority's disposition of the case. This may occur when: 1) the justice concurring and dissenting in part only voices disagreement with some or all of the majority's reasoning; 2) when said justice disapproves of the majority's deciding or refusing to decide additional issues involved in the case; or 3) when in a case in which dissent has been voiced, the justice(s) concurring and dissenting in part votes to dispose of the case in a manner more closely approximating that of the majority than that of the dissenter(s). In cases where determination of whether a vote concurring and dissenting in part is the former or the latter is not beyond cavil, an entry will appear in the voteUnclear variable of the affected case to allow users to make an independent judgment, if they are so minded. Note, however, that listing such votes as dissents (= 2) or special concurrences (= 4) has no effect on whether or not an opinion is written (the opinion variable). See also notes under the majority vote (majVote) variable.
Values:

1	voted with majority or plurality
2	dissent
3	regular concurrence
4	special concurrence
5	judgment of the Court
6	dissent from a denial or dismissal of certiorari , or dissent from summary affirmation of an appeal
7	jurisdictional dissent
8	justice participated in an equally divided vote

Introductory

Introduction
Citing to the SCDB

Identification Variables

Background Variables

Chronological Variables

Substantive Variables

Outcome Variables

Voting & Opinion Variables

Justia Legal Dictionary Opinion

A judge's written explanation of the decision of the court. Because a case may be heard by three or more judges in the court of appeals, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based upon the view of the majority, and one member of the majority will write the opinion. The judges who did not agree with the majority may write separately in dissenting or concurring opinions to present their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers further comment or clarification or even an entirely different reason for reaching the same result. Only the majority opinion can serve as binding precedent in future cases. See also precedent.

Source: U.S. Courts

A judge's written explanation of the decision of the court in appellate cases. Because a case may be heard by three or more judges in the appellate court, the opinion in appellate decisions can take several forms. If all the judges completely agree on the result, one judge will write the opinion for all. If all the judges do not agree, the formal decision will be based on the majority view, and one member of the majority will write the opinion. The judges that do not agree with the majority may write their own dissenting or concurring opinions to state their views. A dissenting opinion disagrees with the majority opinion because of the reasoning and/or the principles of law the majority used to decide the case. A concurring opinion agrees with the decision of the majority opinion, but offers comment or clarification or a completely different reason for reaching the same result. Only the majority opinion can be used as binding precedent in future cases. (See also precedent.)

Source: California Courts.

Last reviewed October 2022

Written opinion by one or more judges

In law, a concurring opinion is in certain legal systems a written opinion by one or more judges of a court which agrees with the decision made by the majority of the court, but states different (or additional) reasons as the basis for their decision. When no absolute majority of the court can agree on the basis for deciding the case, the decision of the court may be contained in a number of concurring opinions, and the concurring opinion joined by the greatest number of judges is referred to as the plurality opinion.

As a practical matter, concurring opinions are slightly less useful to lawyers than majority opinions. Having failed to receive a majority of the court's votes, concurring opinions are not binding precedent and cannot be cited as such. But concurring opinions can sometimes be cited as a form of persuasive precedent (assuming the point of law is one on which there is no binding precedent already in effect). The conflict in views between a majority opinion and a concurring opinion can assist a lawyer in understanding the points of law articulated in the majority opinion. Occasionally, a judge will use a concurring opinion to signal an openness to certain types of test cases that would facilitate the development of a new legal rule, and in turn, such a concurring opinion may become more famous than the majority opinion in the same case. A well-known example of this phenomenon is Escola v. Coca-Cola Bottling Co. (1944).[1][2]

Concurring opinions may be held by courts but not expressed: in many legal systems the court "speaks with one voice" and thus any concurring or dissenting opinions are not reported.

Types of concurring opinions

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There are several kinds of concurring opinion. A simple concurring opinion arises when a judge joins the decision of the court but has something to add. Concurring in judgment means that the judge agrees with the majority decision (the case's ultimate outcome in terms of who wins and who loses) but not with the reasoning of the majority opinion (why one side wins and the other loses).

Concurring opinions by region

In some courts, such as the Supreme Court of the United States, the majority opinion may be broken down into numbered or lettered parts, and then concurring justices may state that they join some parts of the majority opinion, but not others, for the reasons given in their concurring opinion.[3] In other courts, such as the Supreme Court of California, the same justice may write a majority opinion and a separate concurring opinion to express additional reasons in support of the judgment (which are joined only by a minority).[4]

In some jurisdictions (e.g., California), the term may be abbreviated in certain contexts to conc. opn.

Terminology at the various courts

At the International Court of Justice, the term "separate opinion" is used and judges can also add declarations to the judgment.
The term concurring opinion is used at the Supreme Court of the United States.
The European Court of Human Rights uses the term concurring opinion and calls both concurring and dissenting opinions separate opinions. Judges very rarely add declarations to the judgment.[5]
Historically the Law Lords of the United Kingdom gave each an opinion of their own and no aggregated judgment was provided. However, the new Supreme Court of the United Kingdom allows for such aggregated judgements, and it is theoretically possible for such concurring opinions to now arise.

Notable concurring opinions

Whitney v. California (1927), Justice Louis Brandeis, free speech, became precedent 50 years later in Brandenburg v. Ohio.
Escola v. Coca-Cola Bottling Co. (1944), Justice Roger Traynor, strict liability for manufacturers, became precedent 19 years later in Greenman v. Yuba Power.
Youngstown Sheet & Tube Co. v. Sawyer (1952), Justice Robert H. Jackson, definitive test for the limits of Presidential power.
Katz v. United States (1967), Justice John Marshall Harlan II, formulated the "reasonable expectation of privacy" test for determining the reasonableness of a search.

References

^ Vandall, Frank J. (2011). A History of Civil Litigation: Political and Economic Perspectives. Oxford: Oxford University Press. p. 27. ISBN 9780199781096.
^ Goldberg, John C.P.; Sebok, Anthony J.; Zipursky, Benjamin C.; Kendrick, Leslie C. (2021). Tort Law: Responsibilities and Redress (5th ed.). New York: Wolters Kluwer. p. 981. ISBN 9781543821086. Retrieved 11 December 2021.
^ See, e.g., McConnell v. Federal Election Commission, 540 U.S. 93 (2003).
^ See, e.g., Cheong v. Antablin, 16 Cal. 4th 1063 (1997). Justice Ming Chin's concurrence began with these words: "Obviously, I concur in the majority opinion I have authored. I write separately to state another reason to reject plaintiff's argument."
^ According to Professor Frédéric Rolin, ECHR judges added declarations in only two cases: Papon v. France (25 July 2002) and Martinie v. France (12 April 2006) ("Note sous CEDH 12 avril 2006, Martinie c/ France", 18 April 2006 Archived 7 February 2009 at the Wayback Machine)