Courts care about the difference between judgments and opinions, yet that boundary often blurs in significant ways. Consider the denotive language that prefaces most judicial opinions, such as “concurring,” “concurring in the judgment,” or “dissenting.” This kind of language not only indicates how a justice has voted with respect to the judgment in the case (judgment-denotive language), but also locates the judge’s opinion, if any, among other opinions (opinion-denotive language). In a legal system that relies on preclusive judgments and precedential opinions, denotive language is key to the everyday operation of courts.
On reflection, however, denotive language is often quite confusing—or confused. This post focuses on a recent and unusually interesting use of denotive language—namely, Chief Justice Roberts’s separate opinion in National Pork Producers Council v. Ross (2023). In brief, the Chief denoted his opinion as “concurring in part and dissenting in part,” but he was simply dissenting with respect to the Court’s judgment. The Chief’s denotive language may have been a bid to strengthen his opinion’s claim to precedential authority. And it could also reveal—or encourage—a view of the judicial role grounded in law-declaration.
I. Concurring in the Opinion–But Not the Judgment
National Pork involved a challenge under the “dormant” Commerce Clause. Two enumerated “claims for relief” appeared in the complaint: one grounded in principles of extraterritoriality and the other in interest-balancing. The complaint’s prayer for relief sought declaratory and injunctive remedies, along with fees. The district court dismissed the case, and the court of appeals affirmed.
The Supreme Court fractured along several axes, resulting in a partial majority opinion and no complete agreement on the proper rationale. Still, a majority agreed to “affirm” the lower courts’ dismissal for failure to state a claim. By contrast, the Chief Justice, joined by three other justices, sought to “vacate the judgment and remand the case for the court below to decide whether petitioners have stated a claim” under an interest-balancing test.
One might think that the Chief’s opinion—which was joined by Justices Alito, Kavanaugh, and Jackson—must be denoted a dissent, full stop. After all, the majority “affirms,” whereas the Chief would “vacate” and “remand.” These dispositions of course represent distinct and divergent judgments. In fact, however, the Chief’s opinion is designated as “concurring in part and dissenting in part”—an ambiguous denotation consistent with some judgment-level concurrence.
Yet the Chief apparently wanted to signal agreement only with certain aspects of the Court’s opinion. As he explained at the outset of his separate writing, the Chief agreed with the Court’s “view” of certain precedents on extraterritoriality, and he also agreed with the Court’s “conclusion” rejecting a certain extraterritoriality rule. The Chief favorably cited specific pages of the Court’s opinion on these issues. Was the Chief therefore “concurring,” not in any part of the Court’s judgment, but only in part of the Court’s opinion?
The key question here is how to understand the judgment unit that denotive language operates on. (Thanks to John Harrison for this term and related insights.) The Chief may have believed that each pleaded basis for relief generated its own judgment unit and so could separately be “concurred in” or “dissented from.” Again, the Chief agreed with the Court that the plaintiffs’ extraterritoriality arguments failed, but he favored continued litigation as to the balancing arguments. If the extraterritoriality arguments generated their own judgment unit, then the Chief may have joined in the Court’s affirmation of their dismissal. But is that way of understanding judgment units correct?
Different answers are available. For purposes of denotive language, potential judgment units include the following:
- Each argument or theory put forward by a plaintiff
- Each request to alter prevailing case law
- Each basis for relief enumerated as a “claim” in a complaint
- Each distinct legal principle invoked by a plaintiff
- Each distinct remedy adjudicated by the court
- Each decree formally issued by a court
- Each case decided by a court.
Options 1-4 would support the Chief’s use of denotive language in National Pork, but those views are probably incorrect. The fact that many different arguments, requests, listed claims, or principles are at play in a plaintiff’s request for relief does not mean that the plaintiff will ultimately obtain as many different judgments. The judicial power traditionally operates on the legal status of persons, not on law in the abstract. True, a judgment can affect a party’s ability to raise certain issues and arguments, such as when there is collateral estoppel; but that very point depends on the distinction between specific judgment and abstract law.
That leaves Options 5-7, none of which support the Chief’s denotive language. The Chief did not concur with respect to the remedies, the decree, or the case as a whole. Which among these potential judgment units is correct or most defensible is a harder question, but the strongest view is probably Option 5. Again, the judicial power operates on the legal status of persons, and that power is exercised every time a remedy is adjudicated. Still, one might think that courts can bundle remedies within a single decree or case (Options 6 or 7). Or we might combine or nuance various options. One might think, for instance, that a sufficiently distinctive legal principle can generate a distinct judgment unit; but even if so, different dormant commerce clause principles probably aren’t different enough.
In sum, the Chief appears not to have concurred in the judgment at all. As he correctly wrote in the body of his separate writing, he was agreeing only with a “view” or “conclusion” in the majority opinion. The Chief concurred in part of the Court’s opinion, but not in any part of the Court’s judgment.
II. Jockeying for Precedential Authority
Willingness to blur opinion and judgment, while in some respects technical or formalistic, can have significant practical implications.
The so-called “Marks rule” offers an example. Here is that rule, as originally stated by the Court:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds . . . ” (emphasis added).
Many lower courts have relied on the italicized language to disqualify non-concurring opinions from being precedential. Could dissenting justices circumvent that restriction by denoting their opinions as concurrences in part?
Something like this seems to have been afoot in National Pork. Because the opinions were so fragmented, the justices jockeyed for precedential authority. For instance, Justice Kavanaugh’s opinion, which imitated the Chief in being denoted as “concurring in part and dissenting in part,” argued as follows:
In today’s fractured decision, six Justices of this Court affirmatively retain the longstanding Pike balancing test for analyzing dormant Commerce Clause challenges to state economic regulations. Ante, at 1 (SOTOMAYOR, J., joined by KAGAN, J., concurring in part); ante, at 2-3 (ROBERTS, C. J., joined by ALITO, KAVANAUGH, and JACKSON, JJ., concurring in part and dissenting in part)[.]
This passage suggests that the Chief’s opinion contributes to a precedential rule in favor of a particular balancing analysis.
And, in debating that claim, the justices were attuned to denotive language. As Kavanaugh observed, “The portions of JUSTICE GORSUCH’s opinion that speak for only three Justices (Parts IV-B and IV-D) refer to THE CHIEF JUSTICE’s opinion as a ‘dissent.’” Having noted that denotive relabeling, Kavanaugh resisted its implication: “But on the question of whether to retain the Pike balancing test in cases like this one, THE CHIEF JUSTICE’s opinion reflects the majority view because six Justices agree to retain the Pike balancing test . . . .” Kavanaugh also suggested Option 3 above by positing that a non-majority part of Gorsuch’s opinion was the “controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim.”
The motive for wrangling over denotive language is clear. Whether under Marks or general practice, “dissents” generally have little if any authority. Thus, justices have an incentive to depict themselves as at least partly concurring in the Court’s decision. Readers should be aware of that incentive, its tendency to mislead, and its potential to undermine rules like the one associated with Marks. We usually trust denotive language, but we must also verify it.
More fundamentally, creative uses of denotive language put pressure on the dispute-resolution model of judicial authority. In cases like Haaland v. Brackeen (2023), the Supreme Court has lately insisted that federal courts have power only because, or if, they are resolving specific disputes by issuing judgments. Careful use of denotive language can help maintain that norm by focusing attention on how judicial opinions specifically relate to judgments.
But denotive language can also undermine the dispute-resolution model, or reflect its incomplete realization, by blurring the line between opinions and judgments. A view of judicial authority focused on declaring the law would follow Kavanaugh in emphasizing opinions, including dissents, independent of any judgment. Opinions, after all, shape legal practice far beyond the dispute at hand. National Pork shows the pull of that perspective. For instance, the Chief may have viewed the Court’s decision not to alter extraterritorial case law as a judgment unit.
Concurrence may even be incoherent unless it is partly a concurrence in the judgment. At least under the dispute-resolution model, the point of issuing a judicial opinion is to describe a particular resolution of the case at hand. From that standpoint, concurring only in an opinion is a jurisprudential non sequitur. A judge might agree with lots of ideas out there in the world, whether expressed in majority opinions, treatises, or law review articles. To concur, by contrast, is to join a court’s reasoning in support of a particular judgment.
Other uses of denotive language, too, put pressure on the dispute-resolution model. Examples include United States v. Zubaydah (2022) (which I blogged about here) and Justice Thomas’s opinion “concurring in part and dissent in part” in Grutter v. Bollinger (2003) (where he seemed to concur only in parts of the majority opinion, such as its “25 years” expectation, but not any part of the judgment).
* * *
If denotive language is sometimes ambiguous, there is a straightforward solution: make it clearer, especially in fractured decisions like National Pork. Rather than simply saying “concurring” or “concurring in part,” justices might specify what they are concurring in. That is, they might say, “concurring in the opinion and in the judgment” or (as the Chief apparently intended) “concurring in the opinion in part and dissenting from the judgment.” This precision would help reveal the justices’ understanding of their role, as well as their conception of precedent.
Denotive language is not the most pressing issue facing the federal courts today. But, here as elsewhere, we can sometimes start to get a handle on big issues by focusing first on what seems small.
Re’s Judicata 
Your rejection of option 3 as a way to characterize judgment units suggests that if a majority of justices had held the Pike claim survives but the extraterritoriality claim did not, while a minority voted to revive the extraterritoriality claim but affirm the dismissal of the Pike claim, you would say the minority concurred in the judgment, the judgment being vacatur of the dismissal and a remand. This does not seem right to me. The majority and dissent in that hypothetical are voting to instruct the district court to enter different orders, one dismissing Claim X but not Claim Y, the other dismissing Claim Y but not Claim X. They are not merely ordering the same thing for different reasons. If I am right about that, it seems to follow that Roberts correctly characterized his opinion as partially concurring in the judgment.
Thanks! As you suggest the key issue is when we have different things or the “same thing for different reasons.” I think your view is best understood along the lines of the hybrid possibility I flag at the end of that discussion, not as Option 3. Imagine for instance we have enumerated “claims for relief” in the complaint, one emphasizing text, another legislative history, another purposive factors, etc. Would you view a separate opinion as dissenting simply b/c it insisted on the first listed claim’s text-only analysis on remand? (And even if you would, then the better way to understand that position would be Option 1, since it would seem odd to treat differently a separate opinion that insisted on text-only analysis on remand when the complaint hadn’t broken out that argument into a separate enumerated claim.)
FRCP 54(b) refers to “judgment” in actions involving “more than one claim for relief.” That rule later refers to “the rights and liabilities” of parties; and it does so in a way suggesting that a “judgment” could be entered with respect to such “rights and liabilities” as distinct from “claims.” This suggests that a case judgment unit in such cases—even if singular (e.g., dismissed for failure to state a claim)—is divisible.
This question seems to cut to the core of your point: are singular judgments (e.g., affirming the lower-court’s decision) ever divisible such that a judge or justice could concur in some judgment part despite disagreeing with the overall judgment unit? If singular judgment units (e.g., affirmed) aren’t divisible, then it’s impossible for a judge/justice who disagrees with the overall judgment unit to concur in any part of the judgment. On this view, the Chief’s denotive language in National Pork, insofar as it is judgment related, is wrong and not just ambiguous.
But if singular judgment units can be divided, then the question becomes how so? Only after the divisibility is understood can we determine whether a judge/justice’s denotive language is right or wrong. Rule 54(b) certainly suggests that some judgments are divisible, and that they are divisible based on “claims for relief” and party “rights and liabilities.” This looks like Option 3 above.
Thanks! I have to think more about this, but my initial reaction is that, even if FRCP54(b) can control this issue, its text is indeterminate with respect to the key issue here. For instance, what qualifies as a claim or the rights and liabilities of the parties? Presumably there would be some limit on the power of the complaint to break apart judgment units — but what is that limit? It could be at the point of distinct remedies, but perhaps instead claim divisibility has something to do with principles of preclusion, leading to a hybrid option of the sort I note at the end of that section: different *enough* principles. Another option with similar flavor and foundation in preclusion would be to ask whether the different asserted claims correspond to sufficiently different factual foundations or factual nuclei.
I believe the answer is different enough principles. Everyone agrees, as far as I know, that you can enter a Rule 54(b) judgment on “one or more, but fewer than all, claims” in a situation where every claim seeks the relief of an injunction against enforcing a law as to the plaintiff, but the claims are different enough that, e.g., one claims the law is preempted and another claims a dormant commerce clause violation. I think everyone (or at least every reasonable jurist!) would also agree that even if a complaint styled a textual argument about Statute X and a legislative-history argument about Statute X as different claims, 54(b) would not authorize partial judgment on the legislative-history “claim.”
This might suggest a rule where ultimately relying on different legal sources controls whether claims are truly different, and that might in turn suggest that the extraterritoriality “claim” here was just a different legal argument in support of the same dormant commerce clause claim. I suspect what makes them feel like they may be different claims, where we would not say that of alternative arguments that a law is content-based and an invalid time-place-manner restriction, is that the textual substrate of our various flavors of dormant commerce clause doctrine is uncertain, or thought to be, making it more natural to talk about different dormant commerce claims in the air than different First Amendment claims. That may well be a confusion, in fact on further thought I am inclined to think it is, but I take Roberts to be acting on the premise that there is a valid form of judgment that says the Pike-balancing “claim” proceeds and the extraterritoriality “claim” does not.
With respect to Marks, I’ll just note that on the generally prevailing dissent-hostile view, it shouldn’t make any difference to the Marks holding on Pike that Roberts concurred on extraterritoriality given that he dissented on Pike.
Asher, below, says it’s different enough principles. That strikes me as a good option but perhaps incomplete.
Here’s why. When the district court enters final judgment, all orders and rulings necessary to that judgment merge into the judgment for appeal purposes. Suppose the final judgment is dismissal for failure to state a claim.
On appeal, the appellant can raise any reversible error. Reversible errors could take many forms, depending on how the case unfolded in the district court. To affirm, the court of appeals must consider and reject each properly preserved and presented potential reversible error. When the appellant presents more than one potential reversible error, it becomes possible for the panel judges to agree that one (or more) reversible error fails but to disagree that all presented reversible errors fail. And because all potential reversible errors must fail for the court of appeals to affirm, the court’s judgment affirming the district court’s dismissal must be divisible according to, at the very least, the potential bases for reversal. If that’s correct, then a panel judge could concur in part (i.e., to conclude that one potential reversible error fails) and dissent in part (i.e., to conclude that at least one reversible error exists and thus vote to vacate and remand for further proceedings not inconsistent with this opinion).
Under this view, all holdings essential to the appellate court’s holding merge into the appellate court’s judgment (in this example, to affirm). That then creates space for a judge to concur in part and dissent in part from the singular judgment to affirm the district court.
Following this account to the end, when SCOTUS grants cert, the Court must decide what to do with the court of appeals’ judgment. But unlike in the court of appeals, the petitioner cannot raise any potential reversible error but rather is limited to only those issues on which cert is granted. But as in the court of appeals, all holdings essential to the Court’s judgment merge into the judgment.
This suggests that the relevant judgment unit might be something like “each considered basis for reversible error.” (I say “considered” because appellate courts sometimes consider unpreserved or unpresented bases for reversible error.) Considered bases for reversible error could run the gamut. And each considered basis provides an opportunity for a judge/justice to agree or disagree.
Two more thoughts based on the new round of interesting comments.
First, Option 6 is also relevant here insofar as a court generates distinct decrees that break out parts of the case and could serve as a formal foundation for judgment.
Second, as indicated in the post I think that Asher’s latest comment reflects a plausible and attractive view centered on sufficiently distinct principles, though (as I think he also indicates) that view probably wouldn’t apply in CJR’s desired way in Nat’l Pork. I would just also note the possible relevance of preclusion principles to decide how different is different enough. There is a thoughtful opinion by then-Judge Ginsburg (Tolson v US 1984) relevant to this.
Thanks again for all thoughts!
Richard, I think you’re overlooking that there’s a difference between voting to affirm a dismissal (i.e., case is over), voting to reverse it (i.e., case proceeds past the pleadings to discovery), and voting to vacate it (i.e., case is remanded for further proceedings on the MTD). The majority voted to affirm dismissal, but the chief merely voted to vacate — thus, he disagreed with majority’s decision to affirm dismissal, but agreeing with majority’s not to reverse dismissal. Seems like a concurrence in part and dissent in part to me.
This I do not agree with at all. If you’re right, then even in a single-claim case, if a majority of the Court holds that, say, partisan gerrymandering does not violate the Constitution and affirms a dismissal, but the dissent says it does violate the Constitution and would vacate and remand to let the district court apply their proposed standard to the complaint in the first instance, you would say the dissenters have actually concurred in the judgment in part and dissented in part. I don’t think we ever see concurring in that kind of situation. Nor does it make sense that, just because the dissenters agree with the majority that the judgment of the Court should not be a reversal, they are partially concurring in the judgment. You might as well say that whenever one group of Justices votes to affirm and the other to reverse, those in the minority are concurring in part in the judgment not to vacate for lack of jurisdiction or anything else. The judgment is what the Court decides to do, not what it decides not to do, and in this kind of case the majority and dissent disagree, 100%, on what the Court should do.
PS. To illustrate my preceding post, imagine if the Supreme Court majority and dissent each issued judgment forms like juries do for verdicts — each form had rows for : “Affirm __”, “Reverse __”, or “Vacate __” (plus DIG, etc.), and each opinion author had to place a check-mark in the appropriate row and an X in the other rows. In Ross, the majority would have put a check in affirm, and an X in reverse and in vacate. The Chief would have put a check in vacate, and an X in affirm and in reverse. So comparing the two, there’s partial disagreement (on vacate vs. affirm), but partial agreement (neither voted for reversal outright). Hence a concurrence in part and dissent in part.
Hash: Thanks for this very interesting and heterodox view! Briefly given our exchange elsewhere: your view implies that, even if there were just one claim or remedy at issue, an opinion that would vacate is partly concurring with a majority decision to either affirm or reverse (at least assuming that all three potential dispositions were adequately live prospects in the case). That is a super interesting view, but I think it’s inconsistent with practice and intuitions. The reason for that, I suspect, is that we evaluate concurrence based on agreement with something that is done, not something that is not done. So, if someone isn’t agreeing at all with what is done (say, affirming), then the fact that they agree on not doing something (say, reversing) is not a legally meaningful form of concurrence (here, with someone who would vacate). Again, though, this is a really interesting take that I will have to think more about — and one that underscores the wide range of views out there!