In a post last June, I spelled out how the Court’s practice on labeling a separate opinion as a concurrence in the judgment or a dissent appears surprisingly chaotic. Today’s ruling in City of San Francisco v. EPA provides another example—more precisely, on the closely related question whether a separate opinion is a straight dissent or is a dissent in part.
My understanding of the long-established practice is that how a separate opinion is denominated turns entirely on whether and to what extent it reaches the same bottom-line judgment as the majority. If, say, a separate opinion disagrees vociferously with the majority’s reasoning and holding but comes to the same judgment of affirmance, then it is a concurrence in the judgment. If it agrees with ten out of eleven parts of the majority opinion but would reverse based on the eleventh part, it is a dissent. And if it agrees with the majority’s judgment of reversal but not with the judgment of remand, then it is a concurrence in part and dissent in part.
In today’s ruling, the Court divides 5 to 4 on whether the EPA is authorized to include “end-result” provisions in pollutant discharge permits. Justice Alito’s majority opinion reverses the Ninth Circuit ruling. In what she labels an opinion “dissenting in part,” Justice Barrett and the three justices (Sotomayor, Kagan, and Jackson) who sign on to her opinion “join Part II of [Alito’s] opinion.” But they disagree with his argument in Part III and thus would affirm the Ninth Circuit.
Perhaps I’m missing something, but it sure seems to me that Barrett’s opinion is a straight dissent.
Relatedly: As I understand the traditional practice, any opinion that is a dissent in part must also be a concurrence in part. But the fact that Barrett agrees with part of Alito’s reasoning does not mean that she concurs in any part of his judgment.