Document Type

Working Paper

Publication Date

9-20-2005

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; Philosophy Research Network; Law School Research Papers - Legal Studies; LSN Subject Matter eJournals; Law School Research Papers - Public Law & Legal Theory; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Humanities Network; Law Research Centers Papers

Abstract

This essay addresses some of the least analyzed words in Supreme Court separate opinions These are the words that follow the comma after the authoring Justices name such as concurring dissenting concurring in part concurring in the judgment or some combination thereof Specifically the question arises of what power these after the comma phrases should yield when an opinion is labeled as concurring but the text conflicts significantly with the opinion of the Court In other words should concurring in name trump dissenting in substance A recent example of this dilemma is found in the DC Circuit Court of Appeals reliance on Justice Powells concurring opinion in the Supreme Court reporters privilege case of Branzburg v Hayes In Branzburg as in other cases the proper interpretation of Justice Powells pseudoconcurrence is particularly important because it provides the fifth vote for the majority decision Yet confusion over how to read Branzburg has ensued some courts focus on the text of the Powell opinion rather than the concurring label and treat Branzburg as a mere plurality opinion while others rely on the after the comma label and declare Branzburg to be a fivejustice majority This essay concludes that the after the comma phrases are useful guidelines to the Justices positions but should not override the more detailed reasoning in the text of the separate opinion When the two conflict it should be viewed as an opportunity to return to the Courts seriatim roots where each Justices rationale is analyzed individually

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