Supreme Court Decision Types


At the end of the voting in conference, the court has to decide how to tell the world of its decision. This is more complex than it might appear. If the decision is unanimous (9-0), the Chief will assign it to anyone on the court INCLUDING HIMSELF. It is not considered bad style for the Chief to assign the decision to himself, particularly when the court wishes to speak with one clear voice. The opinion writer will then draft an opinion and often circulate the draft to get the views of other justices. We most often call this type of opinion, the opinion of the court

From time to time, even in a unanimous decision one or more justices will feel that they wish to add reasoning or qualifying statements and will write a separate opinion even though they agree with the result. This is referred to as a concurring opinion. It agrees with the result of the case, but adds (or subtracts) reasons for the decision.


When the court is divided (8-1, 7-2, 6-3, 5-4 or any combination of votes larger than 5) the Chief will assign the opinion to one of the justices in the majority OR if the Chief is not in the majority the senior justice in the majority will assign the opinion to any justice in the majority including himself and the process with then proceed as described above. This will be call a majority opinion since it purports to represent the views of a majority of the court. Even in a close (5-4) decision, this opinion will represent the winning view on the court

What about those justices whose views did not prevail. They will decide among themselves who will write their views. This type of opinion is referred to as a dissenting opinion and it represents the views that did not prevail in the court, in short the views of the losers.

Similarly to the concurring opinion described above, a dissenter may wish to add more to the dissent (or give a different reason) and we call this less frequent type concurring in dissent i.e. agreeing with the dissenters that the decision is incorrect, but stating different or additional reasons.


Once in a very great while, the court will have difficulty deciding WHY it is making a decision. This does not refer to confusion in the minds of individual justices. though that does happen and can lead to a change of vote, but to the fact that from time to time the judges cannot come to a meeting of the minds on WHY they are deciding the case in favor of say BAKKE in the famous Bakke v Board of Regents of the University of California. This case was decided in favor of Bakke in a close 5-4 decision. BUT when it came to reasoning things got very complicated. Four justices thought that a specific numerical set aside based on race violated the constitution (Bakke's "equal protection"). One justice thought that it violated federal law and that he didn't need to decide the constitutional question. This constituted a 5 person majority, but a majority that didn't agree with itself as to why Bakke's rights were violated. So 4 justices wrote for themselves what is called a plurality opinion with one other just writing a concurring opinion which taken all together made a 5 person majority. All the dissenters wrote opinions and even the plurality justices wrote separate addition partial opinions. We ended up with 9 opinions. Its rare, but it happens!

Interestingly, Bakke has endured far longer than anyone imagined and constitutes the guidelines for many affirmative action programs today causing them to avoid anything that looks like a racial "quota", but allowing race to be taken into account in university applications along with other reasons.


If you look through the Supreme Court Reports in the library, you will find numerous decision which often are very brief, unsigned, and usually unanimous. The decisions are of less important cases or ones that are being "remanded" back to a lower court for re-decidiing. They will usually be a paragraph with the legal citation of the case (its number) and a statement instructing the parties to return to a lower court or review the reasoning in a previous case. There may also be "technical" reasons to send the case back and these are also often "per curiam" decision. PER CURIAM mean "by the court"


On decision announcement day (often Monday except at the end of the term), the court will assemble en banc and the decision will be announced by the Chief and he will typically ask the opinion writer to comment. Dissenters will follow with their comments. On occasion a dissenter will take the time to read her whole opinion to "emphasize" her disagreement with the majority. Simultaneous with all of this the wirtten opinions are being distributed to the waiting press.