From the abstract for Mary Margaret Penrose, Goodbye to Concurring Opinions, Duke Journal of Constitutional Law & Public Policy, Forthcoming:
Quick! List the U.S. Supreme Court’s 5 most impactful concurring opinions. Better yet, list the top 10. Do they readily come to mind? How long did it take you? Are these cases taught regularly? Have any more than the first 5 actually become the law? This article challenges the belief that separate opinions, particularly concurrences, are justified because they often become the law. That is factually untrue. And, it is even less likely for modern cases decided by the Burger, Rehnquist and Roberts’ Court.