A concurring opinion is a separate writing by a Supreme Court justice who agrees with the outcome of a case but wants to explain a different route to that result, add a point the majority left out, or warn against reading the majority’s reasoning too broadly. Most concurrences are persuasive rather than binding. But in fractured decisions a concurrence can become the controlling rule, and several concurrences in American history have reshaped entire areas of constitutional law years after they were written.
Where a Concurrence Sits Among the Court’s Opinions
The Supreme Court issues its decisions as a package: a majority opinion, any concurrences, and any dissents.1Supreme Court of the United States. Opinions The majority opinion is the one joined by at least five justices. It resolves the dispute and establishes binding precedent that lower courts must follow.
A dissenting opinion disagrees with the outcome itself. Dissents carry no binding authority, though they sometimes become the seed of a later reversal.
A concurring opinion sits in between. The concurring justice agrees with who wins and who loses but writes separately. That agreement on the result is what makes it a concurrence rather than a dissent; the separate writing is what makes it a concurrence rather than a quiet vote with the majority.
The Two Types of Concurrences
Not every concurrence expresses the same level of disagreement, and the type controls how much weight the opinion carries.
Regular Concurrence
A regular concurrence is filed by a justice who joins the majority opinion in full but writes separately to add context, emphasize an implication, or address an argument the majority chose not to discuss. This kind of concurrence doesn’t undercut the majority opinion. It functions as an addendum from a justice who agrees with everything and wants to add one more thought.
Concurrence in the Judgment
A concurrence in the judgment, sometimes called a special concurrence, is a sharper break. The justice agrees with the final result but rejects the majority’s reasoning, perhaps because the majority relied on the wrong constitutional provision, misread a statute, or adopted a legal test the concurring justice thinks will cause trouble later. Because the justice does not join the majority opinion, this kind of concurrence can weaken the precedential force of the decision by shrinking the number of justices who actually endorsed the majority’s legal framework.
Legal Weight: Persuasive, Not Binding
A standalone concurring opinion generally has no binding authority. Courts treat its reasoning the way they treat other commentary that wasn’t necessary to the outcome. Lawyers and judges study concurrences and cite them, but a lower court is not required to follow a concurring justice’s reasoning the way it must follow the majority opinion. The distinction is between the holding of a case, which is the legal rule necessary to reach the result, and everything else, which is persuasive but not controlling.
That label undersells the real-world influence. A concurrence from a Supreme Court justice carries significant persuasive weight simply because of its source. Lower court judges watch concurrences for signals about where the law may be heading, and litigators regularly build strategies around ideas first floated in a concurrence.
When a Concurrence Becomes Binding: The Marks Rule
The main exception to the nonbinding rule occurs in plurality decisions, where no single opinion commands five votes. In that situation, the Court applies the standard from Marks v. United States: “When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.”2Justia. Marks v. United States, 430 US 188 (1977)
In practice, imagine a 6-3 ruling that a police search was unconstitutional, with the six-justice majority splitting into two camps. Four justices say all warrantless searches of digital devices are unconstitutional. Two justices say only warrantless searches of locked devices are. Neither group alone has five votes. Under the Marks rule, the narrower position, limited to locked devices, becomes the binding holding because it’s the most limited principle a majority of the Court would accept.
This mechanism can turn a concurrence in the judgment, sometimes from a single justice, into mandatory authority that every federal and state court must obey. It also creates confusion. Lower courts frequently disagree about which opinion in a fractured decision actually represents the narrowest grounds, and the Supreme Court itself has acknowledged the problem without resolving it.3Supreme Court of the United States. 17-155 Hughes v. United States Identifying the binding rule from a plurality decision remains one of the harder problems in appellate practice.
Concurrences That Changed the Law
Several of the most consequential doctrines in American law trace not to majority opinions but to concurrences.
Presidential Power: Justice Jackson in Youngstown (1952)
When the Court struck down President Truman’s seizure of steel mills during the Korean War in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson wrote a concurrence setting out a three-part framework for evaluating presidential authority.4Justia. Youngstown Sheet and Tube Co. v. Sawyer, 343 US 579 (1952) Under Jackson’s framework, a president’s power is strongest when acting with congressional authorization, uncertain when Congress is silent, and at its lowest when acting against Congress’s expressed will. The framework has been described as having “canonical status,” and the Court has relied on it in evaluating claims of executive power ever since.5Congress.gov. ArtII.S1.C1.5 The President’s Powers and Youngstown Framework It is probably the most famous concurrence in American legal history.
Free Speech: Justice Brandeis in Whitney v. California (1927)
In Whitney v. California, the Court upheld a conviction under a state law criminalizing advocacy of political violence. Justice Louis Brandeis technically concurred in the result but wrote separately to articulate a far more speech-protective standard. He argued the government could not suppress speech unless the danger was so imminent “that it may befall before there is opportunity for full discussion,” and that when time for debate exists, “the remedy to be applied is more speech, not enforced silence.”6Justia. Whitney v. California, 274 US 357 (1927) The language had no binding force at the time. It profoundly influenced later First Amendment decisions and is now regarded as a foundational statement of American free speech philosophy.
Gun Rights: Justice Thomas in Printz v. United States (1997)
Justice Clarence Thomas wrote a brief solo concurrence in Printz v. United States, a Tenth Amendment case about the Brady Act’s background-check requirements. The majority said nothing about gun rights, but Thomas used his three-page concurrence to suggest the Court should someday consider whether the Second Amendment protects an individual right to bear arms. A decade later, the Court held in District of Columbia v. Heller (2008) that it does, vindicating the position Thomas had flagged in an opinion no other justice had joined.
How Concurrences Signal Future Legal Shifts
Justices often use concurrences as deliberate invitations to future litigants. A justice who believes the law should move in a particular direction but lacks the votes for a majority can lay the groundwork by publishing that reasoning separately. Future lawyers can then craft cases designed to present the exact question the justice flagged, knowing at least one vote is already sympathetic.
This is where concurrences matter most for readers outside the legal profession. A concurrence can preview a legal shift years before it happens. When a justice writes that a doctrine “deserves reconsideration” or that the Court should “address this question in an appropriate case,” experienced lawyers read those phrases as a signal that the issue is in play.
Concurrences also serve a limiting function. A justice who joins the result but writes separately to say the ruling should not extend to certain situations is drawing a boundary. That concurrence tells lower courts where the fifth vote starts to waver. If four justices signed a broad majority opinion and the fifth joined only through a narrower concurrence, the practical reach of the decision is limited to what the concurrence endorsed.
How To Tell What Kind of Concurrence You Are Reading
When reading a Supreme Court decision, concurring opinions appear after the majority opinion and before any dissents. Each one is labeled with the justice’s name and identified as either “concurring” or “concurring in the judgment.” That label matters. “Concurring” signals agreement with the majority’s reasoning, so the justice’s vote reinforces the majority opinion as controlling precedent. “Concurring in the judgment” signals agreement only with the result, which means the justice’s vote does not add to the majority’s legal reasoning and may, in a close decision, limit how far that reasoning actually reaches.
For a nonlawyer reading a decision, the key question when encountering a concurrence is simple: did this justice join the majority opinion, or only the result? The answer determines how much legal authority the concurrence actually carries, and whether the majority opinion is as solid as its headline vote count suggests.