Concurring opinions in the Supreme Court

DEFINITION: Opinions in which a Supreme Court justice agrees with the decision that a majority or plurality of justices reached in the opinion for the Court but sets forth different reasoning in support of the decision.

SIGNIFICANCE: Concurring opinions often alert the legal community to the significance of the opinion for the Court or to nuances in that opinion, and can be particularly significant when only a plurality joins the opinion of the Court.

The Supreme Court produces an opinion for the Court in each case it resolves, but individual justices or groups of justices may file separately, setting forth the differences between their views and those stated in the opinion for the Court. The opinion written by a justice who agrees with the result reached by the Court but disagrees with some other point is a concurring opinion. An opinion written by a justice who disagrees with the Court’s decision is called a dissenting opinion. If the case raises several issues, a separate opinion can concur and dissent in part. The author of a concurring opinion may agree with the Court’s judgment but often joins only part of the Court’s opinion—or declines to join it entirely.

Concurring opinions can serve many purposes. A justice may write to influence the legal community’s interpretation of the opinion of the Court. A concurring justice may seek to limit the implications or reach of the Court’s decision or, conversely, may suggest that the opinion of the Court states too limited a rule of decision. Justices also write concurring opinions for more personal reasons, such as the desire to create a unique philosophy over the course of several cases. For example, in the 1990s, Justice Antonin Scalia regularly wrote concurrences arguing that courts should not use legislative history when interpreting statutes. A concurring opinion may also simply state the justice’s alternative reason for coming to the decision the Court reached. Concurring opinions can also accompany unsigned per curiam rulings, as shown in TikTok Inc. v. Garland (2025), which included separate concurring opinions by Justices Sotomayor and Gorsuch. A 2023 legal debate highlighted that concurring opinions can create confusion rather than clarity, especially when readers treat them as if they were controlling law.

Concurring opinions have special significance when fewer than five justices join the opinion of the Court—making the decision a plurality—or when the concurring justices’ votes are necessary for the Court’s opinion to have the support of five justices. Some concurring opinions, such as those by Justice Lewis F. Powell, Jr., in Regents of the University of California v. Bakke (1978) and Branzburg v. Hayes (1972), profoundly affect the development of the law because they are issued in the absence of a clear majority. When five or more justices join the opinion of the Court, any concurring opinion will likely carry less weight. Nevertheless, some such concurring opinions gain significance because they set forth a cogent approach that can be applied to other cases or because they may indicate the Court’s next action. Modern concurring opinions can still shape debates; for example, in 2024, Justice Clarence Thomas wrote separately in Alexander v. South Carolina State Conference of the NAACP to argue that certain redistricting claims should not be decided by courts at all. Another example is United States v. Rahimi (2024), which produced multiple separate concurring opinions alongside the Court’s majority opinion.

Bibliography

Flanders, Robert G., Jr. “The Utility of Separate Judicial Opinions in Appellate Courts of Last Resort: Why Dissents Are Valuable.” Roger Williams University Law Review, vol. 4, 1999, pp. 401–25. DOCS@RWU, docs.rwu.edu/rwu_LR/vol4/iss2/2. Accessed 7 Apr. 2026.

Library of Congress, Constitution Annotated. “Concurring Opinions (Intro.9-2-29).” Constitution Annotated, constitution.congress.gov/browse/essay/intro.9-2-29/ALDE_00000089/. Accessed 8 Apr. 2026.

“Opinions.” Supreme Court, www.supremecourt.gov/opinions/opinions.aspx. Accessed 8 Apr. 2026.

Penrose, Meg. “Legal Clutter: How Concurring Opinions Create Unnecessary Confusion and Encourage Litigation.” George Mason Law Review Forum, vol. 31, 2023, lawreview.gmu.edu/forum/legal-clutter-how-concurring-opinions-create-unnecessary-confusion-and-encourage-litigation. Accessed 8 Apr. 2026.

“Reading a Supreme Court Decision.” Justia U.S. Supreme Court Center, supreme.justia.com/reading-supreme-court-decision. Accessed 8 Apr. 2026.

Stephens, Richard B. “The Function of Concurring and Dissenting Opinions in Courts of Last Resort.” Florida Law Review, vol. 5, 1952, pp. 394–410. scholarship.law.ufl.edu/ flr/vol5/iss4/3. Accessed 8 Apr. 2026.

TikTok Inc. v. Garland. Supreme Court of the United States, 2025. Slip opinion, www.supremecourt.gov/opinions/24pdf/24-656_ca7d.pdf. Accessed 8 Apr. 2026.

“United States v. Rahimi (2024), No. 22–915.” Supreme Court of the United States, 21 June 2024, www.supremecourt.gov/opinions/23pdf/22-915_8o6b.pdf. Accessed 8 Apr. 2026.