Left at the Altar: Scotus Promises to Clarify Its Cryptic Marks Rule for Divining the Precedential Impact of Plurality Decisions — but Doesn't

• Jurisdiction: United States,Federal
• Author: By Thomas R. Freeman
• Citation: Vol. 31 No. 2
• Publication year: 2018

Left at the Altar: SCOTUS Promises to Clarify its Cryptic Marks Rule for Divining the Precedential Impact of Plurality Decisions — But Doesn't

By Thomas R. Freeman

There has long been confusion over the precedential impact of fractured United States Supreme Court rulings where a majority of Justices agree on the judgment, but not on the reasons for it. Although the Supreme Court in Marks v. United States (1977) 430 U.S. 188, articulated a legal standard for deriving the binding rule laid down in such "plurality" rulings, that standard (the "Marks rule") has "baffled and divided the lower courts that have considered it." (Nichols v. United States (1994) 511 U.S. 738, 746.) The lack of uniformity in applying Marks has led to disparate interpretations of plurality decisions on many "hot button" issues, including abortion, gun control, voting rights, affirmative action, capital punishment, obscenity, water pollution, and the scope of congressional authority under the Commerce Clause. (See Williams, Questioning Marks: Plurality Decisions and Precedential Constraint (2017) 69 Stan.L.Rev. 795, 799-800 (hereafter Questioning Marks).)

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The inherent ambiguity of the cryptic Marks rule is a greater problem now than ever before because lower courts have relied on Marks with increased regularity over the past 20 years. (See Re, Beyond the Marks Rule (forthcoming 2018) 132 Harv.L.Rev. __ (hereafter Beyond the Marks Rule)) Nor is the Marks rule's influence confined to the interpretation of U.S. Supreme Court plurality decisions. California courts have applied the Marks rule to plurality opinions of the California Supreme Court and the Courts of Appeal. (E.g., People v. Villalpando (Sept. 8, 2015) 2015 WL 5231992, *12 fn. 7 [construing Justice Baxter's concurrence in People v. Rodriguez (2012) 55 Cal.4th 1125, as authoritative because he concurred with the plurality on the narrowest grounds]; Stand-Up for California! v. State (2016) 6 Cal.App.5th 686, 772-773 (Franson, J., concurring and dissenting) [advising trial court to apply the Marks rule to determine which of three separate opinions in the plurality ruling is binding precedent].)

Fortunately, the U.S. Supreme Court granted certiorari last year to clarify the Marks rule. (Hughes v. United States (2017) 138 S.Ct. 542.) Unfortunately, when the Court issued its opinion a few months later, it failed to offer any guidance whatsoever. Instead, the Court resolved the underlying substantive law issue, making it "unnecessary to reach questions regarding the proper application of Marks." (Hughes v. United States (2018) 138 S.Ct. 1765, 1772.)

And so the confusion remains—leaving bench and bar to struggle with a "test [that] is more easily stated than applied." (Grutter v. Bollinger (2003) 539 U.S. 306, 325.) Familiarity with the competing versions of the Marks rule therefore remains critical whenever considering a plurality ruling.

The Marks Rule Precedent Is Set by Those Concurring on the "Narrowest Grounds"

In Marks, the Supreme Court confirmed that even splintered rulings may be binding on lower courts and articulated a standard for identifying the rule of decision in such cases: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those members who concurred in the judgment on the narrowest grounds....'" (Marks, supra, 430 U.S. at 193 [quoting Gregg v. Georgia (1976) 428 U.S. 153, 169 fn. 15 (opn. of Stewart, Powell, and Stevens, JJ)].)

While the Marks "narrowest grounds" rule may appear easy to apply in some cases, it has proven vexing when competing rationales in a plurality decision do not unambiguously fall within a simple, broad-to-narrow continuum. "For some issues, asking which of two [or more] opinions is narrower is akin to asking, 'Which is taller, left or right?'" (Lisk v. Lumber One Wood Preserving, LLC (11th Cir. 2015) 792 F.3d 1331, 1337.)

Not surprisingly, appellate courts in different jurisdictions (and sometimes within jurisdictions) have provided different answers to critical questions raised by Marks: Does Marks require lower courts to identify a single "narrowest" opinion and accord that opinion full stare decisis effect—even if the opinion reflects the rationale of only one Justice? And what if the other eight Justices affirmatively reject that concurring Justice's rationale? What is the criteria for determining the "narrowest" grounds for concurring with the judgment? What role, if any, do dissenting opinions play in applying the Marks Rule? Disparate answers have led to different applications and conflicting interpretations of Supreme Court precedent—subverting the uniform application of high court precedent.

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Conflicting Applications of the Marks Rule

1. The fifth-vote approach

The most basic interpretation of the Marks Rule is the "fifth vote" or "median" approach, which directs courts to treat as controlling the opinion of the Justice (or Justices) who concurred in securing a majority judgment on the narrowest grounds. (Questioning Marks, supra, at pp. 813-814.)

The case cited in Marks, Gregg v. Georgia, illustrates the fifth-vote approach. In Gregg, the Supreme Court considered the precedential impact of the plurality decision in Furman v. Georgia (1972) 408 U.S. 238. Furman considered whether imposition of the death penalty in a Georgia case violated the proscription against cruel and unusual punishment. Of the five Justices supporting the judgment reversing the death penalty, two Justices broadly concluded that the death penalty is always unconstitutional, while three Justices concluded it was unconstitutional as applied in Georgia at the time (without opining on whether it is per se unconstitutional). (Gregg, supra, 408 U.S. at pp. 168-169.) In describing the precedential impact of the fractured ruling in Furman, the Court in Gregg explained that, "[s]ince five Justices wrote separately in support of the judgment in Furman, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds, Mr. Justice Steward and Mr. Justice White," who concluded only that the death penalty statute was unconstitutional as applied under Georgia law. (Id. at p. 169 fn. 15 [emphasis added].)

The Court in Marks elevated the "narrowest grounds" analysis in Gregg to the status of a rule for identifying binding precedent from plurality rulings. The Marks Court...