I legitimately would like to know the answer to this question:
Why write a three-judge concurrence?
Justice Streeter authors a thoughtful 46-page opinion involving complicated details about certificates of appealability in state habeas cases. Then Justice Goldman adds a brief three-page concurrence that suggests helpful ways that the parties can help assemble the record in such cases, with a suggestion that the Judicial Council get involved.
All great thoughts.
But everyone joins Justice Streeter's opinion, and everyone joins Justice Goldman's concurrence.
So why not just issue one opinion with both thoughts? Particularly since everyone agrees?
Justice Streeter notes at the outset of the opinion that a three judge concurrence is a "rare but not unknown" occurrence. Sure enough. But why take that form at all?
I understand that concurrences sometimes involve suggested changes or critiques of existing law. But opinions can -- and often do -- contain those same things. Since everyone agrees, why not put them all together?
The only thing I can think of is that maybe the author of the opinion wants to give credit where credit is due and identify the author of the concurrence as the originator of whatever thoughts are expressed therein. Fair enough, I guess. But opinions are often products of a collaborative enterprise. That's why we have panels, after all. If everyone agrees, why not just get everyone to sign on -- who's listed as the "author" of the thing seems to matter little (to me, anyway).
Plus, it's perhaps a marginal point, but as a persuasive matter, a suggested change from an "opinion" might be a little more powerful than a suggested change from a "concurrence."
No big deal either way, I assume. I just wonder why the panel decided against simply plopping Justice Goldman's three pages into Justice Streeter's 46-page missive. Or if there's any special reason of which I'm unaware as to why a three-judge concurrence is the "proper" way to raise these sorts of things.
