Maybe they shouldn’t hear voting rights cases?

The September 21, 2009 Supreme Court opinion in Financial Federal v. Brown, 384 S.C. 555, 683 S.E.2d 486 (2009) contains an anomaly: Justice Beatty’s “majority” opinion received fewer votes than Justice Kittridge’s “concurring” opinion [a concurring opinion is an opinion that reaches the same result as the majority opinion but does it on a different or additional rationale].  While all five justices reversed the lower court’s ruling, only two justices joined the majority opinion while three justices joined the concurring opinion.

I assume that Justice Beatty was assigned to draft the majority opinion and then one of the justices (either Toal or Pleicones) switched from his opinion to Kittridge’s opinion.   Still, by my understanding of math, in a three to two vote the side with three votes has the majority.

This isn’t mere cheekiness.  Citing the “majority”opinion is problematic as it did not command a majority of the votes and therefore does not reflect the majority view of the Supreme Court.  However citing the “concurring” opinion requires one to note that it is the concurring opinion.  While a concurring opinion may have persuasive authority it is not considered binding precedent.  Neither opinion can be properly cited for the weight with which it should be granted.

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