The Unsoundness of Silence: Silent Concurrences and Their Use in Maryland

Shane M.K. Doyle

 This Comment will discuss the judicial practice of issuing a “silent concurrence,” and examine the use of silent concurrences in Maryland. A silent concurrence is when an appellate judge concurs only in the judgment, but does not write a separate opinion. Concurring only in the judgment means a judge agrees with the outcome of a case, but “refuses to join the majority opinion.” Or, more consequentially, the judge refuses to join the lead opinion in a plurality decision. Usually, a judge concurs only in the judgment because the judge believes the main opinion is wrong about why the outcome is correct. We know this because judges concurring only in the judgment typically write separate opinions explaining their alternative reasoning. A “silent” concurrence, though, is when a judge concurs only in the judgment without writing a separate opinion. In other words, the judge, without offering any explanation, votes in favor of the result but refuses to join the main opinion.

This Comment will explore the criticisms of, and potential justifications for, silent concurrences in general; specifically examine their use in Maryland; and make three ultimate conclusions. First, silent concurrences are a generally unsound practice because, notwithstanding their potential justifications, litigants and the public have the right to expect judges who vote for the result but do not join the main opinion to offer at least a brief explanation rather than no explanation at all. Second, the data suggest that regardless of whether the potential justifications for silent concurrences are valid, they do not explain the most recent silent concurrences in Maryland. Third, the Court of Appeals should promulgate a rule that nullifies the effect of silent concurrences on the precedential value of plurality decisions and by extension discourages the use of silent concurrences generally.