Two Pesos v. Taco Cabana, 505 U.S. 763 (1992)

White delivers the opinion of the Court, joined by Rehnquist, Blackmun, O'Connor, Scalia, Kennedy, and Souter.

Stevens files an opinion concurring in the judgment only.

Thomas files an opinion concurring in the judgment only.

Scalia files a concurring opinion. 

The last case of Thomas' first term in which he and Scalia write separate opinions that aren't joined in full by the other is marked by more of a whimper than a bang.

The Court holds that trade dress which is inherently distinctive is protectable under § 43(a) without a showing that it has acquired secondary meaning, since such trade dress itself is capable of identifying products or services as coming from a specific source.  "Because the Court reaches the same conclusion for different reasons" than his own, Thomas concurs in the judgment only.  Scalia concurs in the Court's judgment and opinion. Because of its brevity, I quote Scalia's concurrence in full: 

"I write separately to note my complete agreement with Justice Thomas's explanation as to how the language of § 43(a) and its common law derivation are broad enough to embrace inherently distinctive trade dress. Nevertheless, because I find that analysis to be complementary to (and not inconsistent with) the Court's opinion, I concur in the latter."

Scalia implicitly assumes that a justice cannot both 1) join in full the majority's opinion, and 2) join another justice's opinion that concurs in the judgment only.  But would that be a justice having his cake and eating it too?  Faced with what he sees as a mutually exclusive choice, Scalia chooses option 1).   But considering he is in "complete agreement" with Thomas, why not chose option 2?  It's not as if Scalia's vote is necessary to secure a majority: the majority would have had 6 votes even without Scalia's.  Perhaps this is Scalia's way of saying that Thomas need not have concurred in the judgement only -- because Thomas' analysis is "complimentary to (and not inconsistent with) the Court's opinion," Thomas should have concurred in both the judgment and opinion.  If that had been the case, Scalia would have felt free to join both the majority opinion and Thomas' opinion, and would not have found it necessary to write his own.