WASHINGTON — Supporters of abortion access have long said birth control and same-sex relationships could also be at risk if Roe v. Wade is overturned—and a prominent voice on the court is now elevating their concerns.
Does a concurring opinion set a legal precedent?
No, but it can still be symbolically important and cited in future decisions.
WHAT WE FOUND:
Dobbs versus Jackson Women’s Health was decided with a majority opinion which says the decision is specific to the right to abortion. But this included concurring opinion by Justice Clarence Thomas brings up other issues: he writes that the court should reconsider precedents set by cases allowing for legal birth control and same sex relationships and marriage.
A concurring opinion can be included when a judge or justice sides with the final conclusion of the majority, but has different or additional reasoning for why.
US Court procedure explains: “If a Justice agrees with the outcome of the case, but not the majority's rationale for it, that Justice may write a concurring opinion.”
"That happens quite often," said Tillman Breckenridge, an appellate lawyer and partner at Stris & Maher.
Breckenridge explains, they’re a way for a judge to get on the record with their interpretation of the law and the type of arguments they’re open to in the future.
"It can be used as a signal to bring new cases on a similar type of issue using the same reasoning. It also can be an opportunity for a justice or judge to say to his or her colleagues, 'this is where I'm coming from on this.'"
However, the concurring opinion doesn't hold the same type of legal weight as the majority.
"They don't have precedential value," said Breckenridge, "they don't control the law in any way."
That doesn’t mean concurring opinions are unimportant: Cornell’s Legal information institute explains they "are not binding since they did not receive the majority of the court’s support, but they can be used by lawyers as persuasive material.”
Breckenridge says, like dissents, judges who publish concurring opinions provide justification for an alternative line of reasoning than what is ultimately decided. That reasoning might be legally helpful for someone in the future.
"They can be used and cited in later opinions to say, 'this justice made this point, however many years ago, and I agree with that,' and it's a foundational document sometimes for later decisions of the court," he said.
Appellate Courts can only make decisions on cases that are brought to them. That means while Justice Thomas said he thinks certain issues should be reconsidered, someone would have to take cases questioning the legality of birth control and same sex relationships all the way to the Supreme Court before they can actually weigh in on the topic.