In 5-4 cases when there are multiple concurrences, which opinion winds up being the controlling one? What if there are 3 opinions issued on the majority side, two of which are joined by one justice each? Which of those three sets the precedent? Is there a standard rule for this? Or is it decided on an ad hoc basis?
There isn’t a hard-and-fast rule. In recent history, the swing voter’s opinion (usually Kennedy or O’Connor) has carried the most weight because it is usually the most moderate.
I guess this illustrates a more fundamental confusion on my part. When people talk about stare decisis, it’s about respecting precedent, right? But does that mean precedent is really just a matter of which majority opinion you choose to cite (e.g. the narrower ones a la Kennedy v.s. the burn-it-down-and-start-over ones a la Thomas) at a given time? Or is there an accepted opinion to use when citing a decision in the future?
Concurring opinions are concurring with the majority opinion - they do not represent the majority. You could cite them as persuasive precedent, but they are not controlling. When reading a case with multiple “concurring” opinions, the first opinion represents the majority; the others will say something to the effect of “concurring opinion”.
IIRC, the chief justice, if his is in the majority, assigns a justice to write the majority opinion. If the chief justice is not in the majority, the most senior justice (among the majority) decides who will write the opinion.
This thread has several good discussions on plurality opinions and concurrences:What happens when SCOTUS is 3-3-3?
The majority opinion is controlling for the case, determining whether it is upheld or overturned. The concurring opinions come into play only when you’re thinking of future cases, and what might or might be allowable. Lower courts might look to concurring opinions (to the majority) to anticipate how the SCOTUS might rule in cases that are not quite the same as the one decided.
For instance, the SCOTUS recently ruled that 2 school districts’ plans for Affirmative Action were in violation of the constitution. Those plans were overturned. But Justice Kennedy’s concurring opinion noted that he thought it was OK to use race in placing students as long as it was just one factor among several that was being used to promote a broader diversity in the student body. The laws in question used race as the only factor. That tells the lower courts that even though 4 of the justices took a harder line than Kennedy, he (Kennedy) might side with the other justices to form a new majority if a future law comes to the court which conforms to the conditions in his concurring opinion.
This isn’t true. As John notes, whichever opinion has five or more votes is the controlling opinion. Often nowadays the majority opinion will be split up into different sections (Part I.A, Part I.B, Part II.A, etc.), and it will be indicated which justices join which sections. Any sections to which five or more Justices have signed their name are binding precedent; everything else is just persuasive or indicative.
According to, well, me, in the thread linked by Pravnik:
Marks v. United States, 430 U.S. 188, 193 (1977). But see, Thurmon, Mark, Note: When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Opinions, 42 Duke L.J. 419 (1992) (noting that Marks has not been uniformly applied and is often unhelpful).
Footnote one from Mr. Thurmon’s Note seems respond to the OP:
Um, I was responding to an OP who specifically asked about cases in which there is no opinion with five votes. As Gfactor points out below, I believe I am correct in saying that in that case, there is no rule on which opinion sets precedent. However, the narrowest opinion often gets the most weight.
At most, you’re objecting to my usage of “opinion” to designate separate concurrences. I was using the language of the OP.
In 5-4 cases, when there are multiple concurrences, the opinion with 5 votes (i.e., the “5” in a “5-4” case) is controlling. In other words, if there is any part of the opinion in which five justices agree, that part is controlling Supreme Court precedent. Otherwise, in any part of the opinion in which there are fewer than 5 votes, I defer to my learned brothers in this thread.
I think it’s clear how the OP was using the word opinion. But I suppose we’ll have to wait for his/her return to answer definitively.
The OP asked which decision set the precedent. **Campion **answered that correctly. 5 justices may agree to overturn or uphold a law or lower court decision, but that doesn’t mean that all 5 justices agree on the precise reason why. So, their decision stands as to whether they overturn or uphold, but lower courts need to look at who agreed to what when they are deciding future cases. The SCOTUS is often very careful to craft their decision narrowly, which means we have to come back and revisit the issue again if the parameters fall outside that narrow decision.
In the recent AA case I referenced, the court overturned the particular AA method used by those school districts. Thomas and Scalia both concurred with the majority decision, but if it were up to them (per their concurring opinion) race could never be used as a factor unless it was to correct a past wrong. But that opinion is not binding since they were the only two to express it. All 7 of the other justices saw more leeway in the constitution than that. If a lower court is to decide a future case, they won’t look to Scalia and Thomas’ decision, even though those two were in the majority wrt overturning the AA plans in question.
“His,” in this case. As it turns out, when I asked the question I hadn’t fully thought through the difference between the two situations (the ones addressed by Campion and yourself), but the answers to both cleared up any confusion I had