When a judge concurs in part and dissents in part, they are joining some portions of the court’s majority opinion while rejecting others. The judge agrees with the court on certain issues or on certain pieces of the reasoning, but refuses to sign on to the rest. The result is a single separate opinion that contains both agreement and disagreement, broken out by specific sections or legal questions in the case.
This is not the same as disagreeing with the outcome. A judge writing in this posture typically supports at least part of the final judgment. Their objection is targeted: maybe the majority applied the wrong legal test, or relied on a statute that does not really control, or reached the right answer through reasoning the judge thinks will cause trouble in later cases. Writing separately lets the judge put those objections on the record without preventing the court from issuing a decision.
How It Differs From a Full Concurrence or Dissent
Appellate courts produce several kinds of opinions, and the distinctions among them carry real weight. A full concurrence agrees with both the outcome and the reasoning. A full dissent rejects both. A partial concurrence sits between those poles, and even within that middle ground the specific label a judge chooses tells you something different.
A judge who “concurs in part” is joining specific sections of the majority opinion. Those sections pick up an additional vote toward majority support. A judge who instead “concurs in the judgment” is agreeing only with the bottom-line result and rejecting the majority’s analytical framework entirely. The difference is practical: when a judge concurs in part, the sections they join retain majority backing; when a judge concurs only in the judgment, none of the majority’s reasoning picks up that vote. Courts sometimes treat the label itself as a signal of how much precedential weight the majority opinion actually carries, even before looking at what the concurring judge wrote.
A judge can combine these moves in a single opinion. In the Affordable Care Act case, Justice Ginsburg filed an opinion “concurring in part, concurring in the judgment in part, and dissenting in part,” signaling three different relationships to three different pieces of the Chief Justice’s opinion.1Legal Information Institute. National Federation of Independent Business v. Sebelius
How These Opinions Are Structured
Appellate opinions, especially at the Supreme Court, are broken into numbered or lettered sections (Part I, Part II-A, Part III, and so on). A judge writing a partial concurrence usually opens by specifying exactly which parts they join and which they reject. In the ACA case, Chief Justice Roberts “delivered the opinion of the Court with respect to Parts I, II, and III–C” but wrote separately on the remaining parts.1Legal Information Institute. National Federation of Independent Business v. Sebelius
That section-by-section labeling creates a map. Lawyers, lower court judges, and clerks can trace which legal propositions commanded a majority and which did not. If five of nine justices join Part II-A but only three join Part III, the rule announced in Part II-A is binding precedent and the rule in Part III is not. The counting is sometimes straightforward and sometimes genuinely hard, but the labels are what make it possible.
Separate opinions appear right after the majority opinion in the published decision, with concurrences printed before dissents.
What It Does to the Precedent
The biggest effect of a partial concurrence is on how strong the court’s holding actually is. When every judge in the majority signs the opinion in full, the resulting precedent is clear. When one or more judges peel off, the rule announced in the majority opinion may lose majority backing on specific points. Those points become weaker precedent, easier to challenge in future cases and harder for lower courts to apply with confidence.
When the fragmentation runs so deep that no single rationale commands five votes, the result is a plurality opinion. The Supreme Court addressed this in Marks v. United States, holding that when “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, the “narrowest grounds” rule forces lawyers and judges to identify which concurring opinion occupies the most limited logical space that still supports the outcome and then treat that opinion as the controlling law.
That exercise sounds clean on paper. It is not. Federal circuits have split on how to apply the Marks rule to specific plurality decisions, with different courts identifying different opinions as the “narrowest grounds” in the same case. These splits can persist for years until the Supreme Court revisits the issue. Fragmented decisions create legal uncertainty that ripples through the system long after the original case is decided.
Cases With Multiple Issues
Appeals that raise several distinct legal questions are a common setting for partial concurrences. A case might involve both a contract claim and a fraud claim, or both a constitutional question and a statutory one. A judge can agree with the majority on one issue and part ways on another without any contradiction.
When that happens, the panel tallies votes issue by issue. A court might affirm the lower court on the contract claim 3-0 and reverse on the fraud claim 2-1. The mandate sent back to the trial court then reflects that patchwork, with different standards applying to different claims. Lower courts receiving mixed instructions have to read the separate opinions carefully to understand what they are being told to do on remand.
It gets more complicated when different judges concur and dissent on overlapping but not identical issues. If Judge A agrees on issues one and two but dissents on three, while Judge B agrees on one and three but dissents on two, working out which propositions actually have majority support takes careful vote-counting.
Why Judges Bother Writing Separately
A judge who mostly agrees with the majority could just sign the opinion. Writing separately is a deliberate choice, and it usually serves a purpose.
The simplest reason is intellectual honesty. If a judge believes the majority’s reasoning on a particular point is wrong, joining the opinion silently would misrepresent their view of the law. The partial concurrence lets the judge say they agree with the outcome but reached it by different reasoning, and the reasoning matters.
These opinions also function as signals to the bar. A judge who writes separately to express doubt about a rule is telling future litigants that the rule is vulnerable. Lawyers reading the opinion learn where the fault lines on the court lie and can craft arguments aimed at those cracks. A concurrence from inside the majority coalition can shift the law faster than a dissent, because it points to disagreement that is already present among the justices who agreed on the outcome.
And sometimes a concurrence lays out an alternative legal standard that becomes a ready replacement if the majority’s framework later falls out of favor. Doctrine evolves this way: separate writings accumulate, and the court’s center of gravity shifts over time.
Notable Fragmented Decisions
Several well-known Supreme Court cases show what partial concurrences look like in practice and how much they can shape the law that follows.
National Federation of Independent Business v. Sebelius (2012)
The challenge to the Affordable Care Act produced a sharply fragmented set of opinions. Chief Justice Roberts wrote for the Court on some parts and only for himself or a smaller group on others. Justice Ginsburg concurred in part, concurred in the judgment in part, and dissented in part. Four justices filed a joint dissent rejecting the law entirely.1Legal Information Institute. National Federation of Independent Business v. Sebelius The individual mandate survived as a valid exercise of the taxing power because five justices agreed on that point, but the reasoning on the Commerce Clause and the Medicaid expansion drew different coalitions, leaving those portions with less clear precedential force.
Planned Parenthood v. Casey (1992)
The case that replaced the trimester framework from Roe v. Wade with the “undue burden” standard was not decided by a traditional majority opinion. Three justices (O’Connor, Kennedy, and Souter) issued a joint opinion announcing the judgment. Justice Stevens concurred in part and dissented in part. Justice Blackmun concurred in part, concurred in the judgment in part, and dissented in part. Chief Justice Rehnquist and Justice Scalia each filed opinions concurring in the judgment in part and dissenting in part.3Justia. Planned Parenthood of Southeastern Pa. v. Casey, 505 US 833 (1992) Different sections of the joint opinion commanded different levels of support, and courts spent decades parsing which parts were binding.
Rapanos v. United States (2006)
In a case about the scope of the Clean Water Act, Justice Kennedy wrote a solo concurrence proposing a “significant nexus” test for federal jurisdiction over wetlands. Four justices would have adopted a narrower test and four others a broader one. Under the Marks rule, lower courts generally treated Kennedy’s concurrence as controlling because it represented the narrowest grounds for the judgment, though applying his case-by-case standard proved inconsistent across circuits. A single partial concurrence effectively became the law of the land despite lacking majority support.