When a Justice contributes the necessary fifth vote to a majority opinion but also writes a concurrence interpreting that opinion, should lower courts disregard the concurrence and rely exclusively on the majority opinion to discern the holding in the case?

QUESTIONS PRESENTED FOR REVIEW 1 When a Justice contributes the necessary fifth vote to a majority opinion but also writes a concurrence interpreting that opinion, should lower courts disregard the concurrence and rely exclusively on the majority opinion to discern the holding in the case (as the Seventh Circuit and sometimes the Fourth Circuit have held); or should they grant the concurrence precedential weight (as the Third and Fifth Circuits, and sometimes the Ninth Circuit, have held)? And should the concurrence be granted precedential weight only if it is “narrower” than the majority opinion, per the rule in Marks v. United States, 430 U.S. 188, 193 (1977)? 2. For purposes of applying the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)(1), did this Court’s decision in McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984)—when read in light of the concurrence by Justice Blackmun, who also provided the fifth vote for the majority opinion—‘“clearly establish” that a defendant must be granted a new trial when a juror’s dishonest voir dire responses concealed information that would have given the defendant a valid basis to challenge that juror for implied bias? 1610259