The case for including Marks v. United States in the canon of constitutional law.

• Author: Stearns, Maxwell L.

1. INTRODUCTION

   1. THE PROPOSAL

      In this essay, I would like to suggest adding a single case, with appropriate commentary, to the canon of constitutional law, as presented in introductory casebooks. Specifically, I suggest including Marks v. United States,(1) as a principal case, or in the form of a detailed summary, immediately before or after the first major plurality decision. I should note that the case is rather short--nine pages in the U.S. Reports--and that it nominally involves obscenity doctrine. I would suggest, counterintuitively perhaps, that the case is more fruitfully presented toward the beginning of an introductory course in constitutional law, to be cross referenced in the materials on the First Amendment, than the other way around.

      At a basic doctrinal level, Marks formalizes the "narrowest grounds doctrine."(2) This doctrine proves essential in explaining to students how to identify which opinion states the holding in the vast majority of fractured panel, or plurality, Supreme Court cases. My own experience reveals that without having considered Marks, students (and indeed many lawyers) systematically err in assuming that in the absence of a majority opinion, the Court's holding is stated in the plurality opinion. This mistake can lead students and lawyers to embrace serious misunderstandings, with potentially significant adverse consequences. In addition, the Marks opinion reveals the limits of the frequent assertion that when the Court decides a case without a majority opinion, the case resolves the dispute but does not establish a precedent. While that is certainly true for the Court as an institution--meaning that the Court is freer to disregard a plurality decision as a matter of stare decisis than it is to disregard a majority opinion--Marks reveals that in some important contexts, including most notably criminal law, litigants can succeed in pressing a due process claim premised on their reliance upon a narrowest grounds opinion in a fractured panel case. Finally, and from my perspective most importantly, Marks is a singularly important decision in encouraging students to think about the institutional dynamics of, and constraints upon, Supreme Court decision making. A proper analysis of Marks will allow students to gain an appreciation for the important strategic considerations that the justices routinely confront when casting votes in cases decided by a narrow margin and for how such strategic considerations can shape constitutional doctrine.

      In this essay, I will begin with a somewhat detailed summary and analysis of Marks. I will then identify several cases that appear in virtually every introductory constitutional law text in which the Marks doctrine operates to identify the Court's holding. Without Marks, I will argue, it is difficult fully to appreciate these cases. I would suggest that for those considering including Marks in their casebooks and courses, it is quite possible to end the analysis at that point. I will go on, however, to suggest an additional layer of analysis, which my own students have found intriguing, namely an analysis of those rare cases in which the assumptions underlying the Marks doctrine do not hold and in which, as a result, no opinion resolves the case on the narrowest grounds. It is important to emphasize here, however, that it is not necessary to go beyond the first layer of analysis for students to benefit substantially from having studied Marks.

   2. THE MARKS DECISION SUMMARIZED(3)

      The Marks petitioners had been convicted of distributing obscene materials pursuant to a set of jury instructions that were modeled on a case that the Supreme Court decided after their alleged criminal conduct. Petitioners maintained that the later decision relaxed the relevant legal standard for evaluating their conduct as compared with the most recent Supreme Court precedent issued before that conduct, which was not decided by a majority. In resolving the case in petitioners' favor, Justice Powell, writing for a majority of five,(4) clarified the rule for identifying the Court's holding in fractured panel cases and the extent to which litigants can rely upon such cases as a matter of due process.

      Petitioners had distributed obscene materials between the time that the Supreme Court issued Memoirs v. Massachusetts,(5) a plurality decision that embraced a relatively strict standard for state prosecutions, and the time it issued Miller v. California,(6) a majority decision that embraced a more relaxed standard for such prosecutions. Prior to both of these cases, the Court had articulated the standard for punishable obscenity in Roth v. United States.(7) For purposes of the analysis to follow, it will be helpful to consider these three cases in the order in which they were decided.

      In Roth, the Court articulated a three-part test for obscenity prosecutions: "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest."(8) In Memoirs, a plurality of three justices, Justices Brennan and Fortas and Chief Justice Warren, set out a stricter standard for obscenity prosecutions, stating that "three elements must coalesce" before material can be deemed beyond the protection of the First Amendment on the ground that it is obscene:

      [I]t must be established that (a) the dominant theme of the material taken as a whole appeals to the prurient interest in sex; (b) the material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters; and (c) the material is utterly without redeeming social value.(9) This opinion raised the Roth standard for punishable obscenity by adding prongs (b) and (c). As Chief Justice Burger, writing for the Miller Court, later observed, prong (c) of Memoirs, requiring that the material be "utterly without redeeming social value," imposed upon the prosecutor "a burden virtually impossible to discharge under our criminal standards of proof."(10) In two opinions concurring in the judgment in Memoirs, Justices Black and Douglas adhered to their "well-known position that the First Amendment provides an absolute shield against governmental action aimed at suppressing obscenity."(11) In a brief opinion concurring in the judgment, Justice Stewart incorporated by reference his belief that only "hard-core pornography" may be suppressed as obscene consistent with the First Amendment, as previously expressed in his dissenting opinion in Ginzburg v. United States.(12) Finally, in three separate dissents, Justices Clark and White adhered to the statement of obscenity articulated in Roth,(13) and Justice Harlan reasserted the view he had previously articulated in Roth, that, while the hard-core pornography standard articulated by Stewart is appropriate when the First Amendment is applied to the federal government, the First Amendment requires only that states "apply criteria rationally related to the accepted notion of obscenity.(14)

      Finally, in Miller, a majority of the Supreme Court, in an opinion by Chief Justice Burger, redefined the standard for punishable obscenity as follows:

      The basic guidelines for the trier of fact must be: (a) whether the "average person, applying contemporary community standards" would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.(15) The Miller Court added: "[w]e do not adopt as a constitutional standard the `utterly without redeeming social value' test of [Memoirs]."(16)

      To summarize, before Marks, the Supreme Court issued three relevant decisions concerning the definition of proscribable obscenity. In Roth in 1957, the Supreme Court defined obscenity based upon whether, applying "contemporary community standards, the dominant theme of the material taken as a whole appeals to the prurient interest." In Memoirs in 1966, the Supreme Court issued a fractured panel decision, which Justice Powell then construed in Marks. A minority in the Memoirs dissent continued to adhere to Roth or an even laxer standard, namely rational basis. A concurrence of two stated that no materials may be proscribed as obscene under the First Amendment. A concurrence of one stated that only hard-core pornography may be proscribed as obscene consistently with the First Amendment. And a plurality of three added two requirements beyond Roth, including most importantly that the material be

      utterly without redeeming social value to be proscribed as obscene. Finally, in Miller in 1973, the Court expressly rejected the Memoirs plurality's "utterly without redeeming social value" standard in favor of a refined version of Roth.

      As Justice Powell explained, the district court in Marks rejected petitioners' argument that the jury instruction modeled on Miller violated their Fifth Amendment due process rights not to be convicted based upon an obscenity formula announced after the acts giving rise to their prosecution, and which cast a "wider net than Memoirs," by which "petitioners charted their course of conduct."(17) Writing for the Marks Court, Justice Powell explained that for the petitioners to succeed, they had to demonstrate both that the Memoirs plurality announced the Court's holding and that, following Memoirs, Miller stated a new rule of law.(18) Like the district court, the court of appeals in Marks rejected the argument that Miller "unforeseeably expanded the reach of the federal obscenity statutes beyond what was punishable under Memoirs."(19) Because the standard announced by the Memoirs plurality never commanded the support of more than a minority of three Justices at one time, the Sixth Circuit, in a split panel...