What is a Concurring or Dissenting Opinion?

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It’s relatively frequent in the news that you hear about a “concurrence” or “dissent.” What does it mean when a Justice of the Supreme Court of the United States or a Judge of another Court issues a concurring or dissenting opinion?

To understand this, we have to look at a brief history of how higher court opinions came to be the way they are today in the United States.

Seriatim

In the early nineteenth century and before, the judges of higher courts (such as the Supreme Court) would issue their opinions “seriatim” (Latin for “separately”). This means that each judge would issue their own opinion about the case that had come before them, and it was up to the reader to figure out which opinion was the controlling, majority opinion to be followed in future cases.

Of course, sometimes this was difficult to do because judges about the same case may come to the same conclusion different ways or to slightly different conclusions. This was a confusing state of affairs, and it made it very difficult for lower courts to know which rule or which judge’s opinion they were supposed to follow.

When Chief Justice John Marshall joined the Supreme Court, he implemented a new policy whereby there was one Majority Opinion that was voted on or agreed to by the rest of the Justices who had voted in favor of the winning rule. Any other Justice was, of course, welcome to write their own opinion, either in support of the final judgment or expressing their displeasure with it. And thus, concurring and dissenting opinions were born.

What We Learn from Concurrences and Dissents

Today, concurrences and dissents carry no legal weight. They are typically not cited by lawyers in briefs arguing before any court, because they do not carry the force of law. They are however, persuasive in some cases, and especially so if written by a judge who has a good reputation among other judges and lawyers.

But primarily, concurrences and dissents tell us what the Justices think about an area of the law, and they often contain valuable clues as to what other cases they’re looking for, and what areas of law they wish to influence. Accordingly, these are heavily studied by appellate lawyers (that is, lawyers who handle appeals from a lower court judgment to a higher court), in determining what sorts of challenges in future cases might be appealing to one Judge or another.

This article has been part of our ongoing series about appellate law—the way in which lawyers and judges shape and influence the law by arguing before courts of appeals. If you have an appellate matter you wish to have reviewed, contact us today for a free consultation.

What is an amicus brief?

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An amicus brief is a legal document filed with a court by an organization or group that is not a formal party to an action, requesting a particular outcome. An outside group can petition the court for permission to be recognized as an amicus curiae—a “friend of the court”—who can help the court in its decision making by offering a unique perspective on a legal issue.

Amicus briefs (pronounced as “uh-MEE-cus” or alternatively, “AM-i-cus”) usually focus on a solution not proposed by either party to a lawsuit, or on a specific aspect of the proposal of one party. For example, let’s say that a dispute called Hot Dog Stand v. City reaches an appellate court over whether a hot dog is a sandwich, and thus subject to regulation in a large city. Let’s also suppose that the Hot Dog Stand owners might make two arguments: 1) that a hot dog is not a sandwich under the statute in question; or in the alternative, that even though a hot dog meets the definition of a sandwich under the statute, 2) that all regulation of sandwiches is unconstitutional under the state or federal constitution. What would a group of sandwich shops who are watching this case think? They might have a strong interest in asking the court for permission to file an amicus brief detailing the negative impact of regulations on their industry and asking the court to consider the hot dog shop’s second ruling. They might want to urge the court to rule in such a way as to help them also.

Or let’s consider a fictional case called Sultan of Middle Eastern Nation v. University in America, in which the court is considering whether a foreign ruler has to answer a civil lawsuit in the United States by a private university that claims their invention is being illegally reproduced and sold by the Sultan’s government. A non-profit group disgusted with the Sultan’s actions in his home country may file a brief detailing those abuses, urging the court to make the Sultan answerable here in America. The University can avoid bringing up an argument that will make it look like it is just crusading against the Sultan, but they may be grateful to an “unrelated” party who files such a brief, giving the court more moral support for a favorable ruling for the University.

In the legal industry, there are non-profits whose sole purpose is to advocate on specific issues, jumping into active cases to offer the court well-reasoned commentary on why a certain outcome is preferred. The Innocence Project often files amicus briefs on prisoners’ rights; the ACLU advocates for its views on the separation of church and state; the Alliance Defending Freedom advocates for broader First Amendment protections; and the Comic Book Legal Defense Fund looks for opportunities to advocate for broader protections for comic book authors and artists. You get the drift.

Amicus briefs perform an important function in our legal system, giving judges a unique perspective on an issue, and offering support for the rationale of one party or another. They also give non-profits and other groups a voice in our legal system that they might not otherwise enjoy.

At Cornerstone Law Firm, we offer to represent non-profits or other groups who form for the purpose of presenting an argument in an ongoing case of concern in state or federal court. Our appellate attorneys have experience advocating here in Pennsylvania state courts, and in federal courts. If you have an issue you wish to take up, we welcome you to reach out to us to discuss how we can help you be involved in an issue of public concern in the courts.