In today’s decision in Los Angeles County Flood Control District v. Natural Resources Defense Council, a line at the end of the five-page opinion reads:

Justice Alito concurs in the judgment.

That line signals that Justice Alito agreed with the judgment of the Court (to reverse) but did not join the majority’s reasoning. In a break from the norm, however, Justice Alito did not write an opinion explaining his decision to concur in the judgment only.

Concurrences and dissents without opinion used to be fairly common, but in recent years they have become increasingly rare. Here are a few of the more famous examples:

  • Justice Gabriel Duvall dissented without opinion in the landmark case Dartmouth College v. Woodward. As one commentator noted, “[d]issenting without opinion in one of the most important cases of his time somehow seems appropriate for Justice Duvall, who some have argued is the most insignificant Justice of all time.”
  • In Keyes v. School District No. 1 (1973), Chief Justice Burger concurred without opinion after some miscalculated maneuvering resulted in him losing a majority.
  • Justice Pierce Butler dissented without an opinion in the Court’s infamous 1927 decision, Buck v. Bell. In that case, the Supreme Court upheld a Virginia statute enforcing compulsory sterilization for the mentally retarded. Phillip Thompson discussed that dissent in excruciating detail a few years ago in a very interesting law review article.
  • From 1939 to 1973, Justice Douglas dissented without opinion in 25 tax cases, 20 of which were dissents in favor of the taxpayer. A fascinating book was written on the topic by Bernard Wolfman et al., Dissent Without Opinion
  • In McCain v. Lybrand (1984), Justices Blackmun, Powell, and Rehnquist concurred without dissent in a decision expanding the scope of Section 5 of the VRA. A year later, in NAACP v. Hampton County Election Commission (1985), Justices Powell and Rehnquist concurred again in the judgment without authoring an opinion. In these two Section 5 decisions, Justice Powell and Rehnquist could really see their view of the VRA slipping away, but the precedent just didn’t fall in their direction.
  • In the landmark First Amendment and gender discrimination case Roberts v. Jaycees (1984), Justice Rehnquist concurred without opinion. Justice Scalia did the same thing two years later in a related but less-known case, Rotary International v. Rotary Club of Duarte.

As far as why concurrences and dissents without opinion matter, John Kelsh provides an interesting hypothesis about the relevance of this practice during the Taney Court:

[T]he Taney period saw a dramatic increase in the use of dissents and concurrences without opinion. The Marshall Court had used these sparingly, registering a total of forty-one during its thirty-five year run. By contrast, the Taney Court, which ran for thirty-three years, registered 389. The dissent or concurrence without opinion is useful only as away of separating the individual Justice from the Court. It makes no effort to convince future courts to adopt a different course or to persuade the current majority to tighten its reasoning. It simply preserves for the public and for history that this Justice disagreed. The increased use of the dissent and concurrence without opinion demonstrates the Taney era’s increased emphasis on the role and opinions of the individual Justices.

The practice is plainly in decline today: there is only one concurrence or dissent without an opinion every two or three Terms. However, it’s harder to say why Justices choose to concur or dissent without opinion.

1 Response to “Concurring or Dissenting Without an Opinion”

  1. 1 Alito, J., Concurring & Just Saying | Josh Blackman's Blog

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