Michael L. Eber, When the Dissent Creates the Law: Cross-cutting Majorities and the Prediction Model of Precedent

JurisdictionUnited States,Federal
Publication year2008
CitationVol. 58 No. 1




During the last thirty years, the Supreme Court has issued over two hundred plurality decisions1where, by definition, a majority existed for the outcome of the case but not for a single rationale explaining that outcome.2

Because plurality decisions occur in cases where the Justices' efforts to secure clear majority agreement have failed, it should come as no surprise that pluralities often follow the most controversial cases.3

In classical legal theory, plurality decisions stood for their immediate results but could not create rules of law with any precedential force.4Perhaps the understanding was that the hardest cases made no law, rather than merely bad law.5However, as pluralities became more frequent, lower courts began to look to them for direction.6The Supreme Court attempted to provide guidance on the meaning of plurality decisions in the 1977 case of Marks v. United States.7The Court stated, "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 judgments on the narrowest grounds . . . .'"8

Beyond the difficulties associated with applying this "narrowest grounds" test,9the Marks rule suffers from an underappreciated defect. Some plurality decisions involve majority agreement that is not between "those Members who concurred in the judgments."10In these cases, which this Comment labels cross-cutting majorities, majority agreement on a legal rule is discernable, but only by counting the votes of Justices who dissented from the judgment. This Comment aims to pick up where Marks left off by suggesting a framework with which to analyze the precedential effect of cross-cutting majorities.

Rapanos v. United States,11a 2006 Supreme Court decision involving the scope of federal authority under the 1972 Clean Water Act12(CWA), illustrates the analytical challenge posed by cross-cutting majorities. Rapanos was a fragmented "4-1-4" plurality decision with three key opinions: a four-Justice plurality opinion written by Justice Scalia, which advocated severe limits on federal CWA jurisdiction;13a concurrence in judgment by Justice Kennedy, which sharply disagreed with the plurality and proposed a more generous, but case-by-case, determination of whether CWA jurisdiction exists;14and a four-

Justice dissent penned by Justice Stevens.15The dissent supported an expansive view of federal CWA authority and claimed that, on remand, lower courts should uphold jurisdiction in any circumstance where the plurality's test or Justice Kennedy's test was satisfied.16Justice Stevens wrote that the dissenters would support the government in either situation, thereby creating at least an eight- or five-vote majority in favor of federal CWA jurisdiction.17

The complexity of the fragmented Rapanos decision has generated tremendous frustration and confusion.18Lower courts are divided over how to decipher Rapanos and whether to accord precedential weight to the dissenters' views.19Remarkably, both the Environmental Protection Agency20and the Department of Justice have taken the position that the dissent's "dual standard" should form the controlling legal test,21and several courts have agreed.22

At first glance, the dual standard appears counterintuitive, if not deeply misguided. If a dissent created the law, it would not be styled as a dissent.23

One nascent perspective on Rapanos, for example, argues that dissents have no legally binding force and are necessarily dicta.24Under this analysis, the very concept of a cross-cutting majority is at odds with basic rule of law values.25

Yet, common sense suggests that a legal proposition becomes law whenever majority support among Supreme Court Justices is certain.26Some scholars, for example, believe that "five aligned votes" create a "binding precedent" regardless of the opinion from which those votes are derived.27Under this view, it is appropriate to parse cross-cutting majorities to determine each proposition where five or more Justices agree.28Whether the dual standard is a controlling precedent depends on the solution to a jurisprudential puzzle much broader than Rapanos: Can a cross-cutting majority-a majority depending on the aggregation of both concurring29and dissenting Justices' votes for support-create the law?

The analytical problem of cross-cutting majorities has appeared in multiple areas of law.30Indeed, how to properly interpret Supreme Court31plurality decisions with potential cross-cutting majorities was a central question in major cases involving abortion,32race-based affirmative action for college admissions,33the First Amendment,34and the Takings Clause,35to name only a few examples.36In addition, the recent landmark decision in Parents Involved in Community Schools v. Seattle School District No. 1,37concerning race- conscious school integration policies, appears to contain some cross-cutting majority agreement between Justice Kennedy and the four left-leaning members of the Court.38Further, because major cases are increasingly decided five-to-four,39litigants and courts probably will face more fragmented opinions in the coming years. The salience of Rapanos and Parents Involved, the myriad other areas of law impacted by cross-cutting majorities, and the likelihood of more fragmented opinions on the horizon all make a thorough analysis of the precedential effect of cross-cutting majorities essential.

Unfortunately, current scholarship on pluralities has not adequately addressed whether dissents can form cross-cutting majorities that create rules of law.40This Comment attempts to fill in that gap in the literature. Part I defines the key terms of the debate. Part II discusses the traditional "command model" of precedent, in which lower courts are required to follow only unified- majority rules that were necessary to the result of a particular judgment. This model strongly cautions against treating cross-cutting majorities as binding precedent. Part III focuses on a particular concern of the command model: cross-cutting majorities are mere dicta because they are disconnected from the majority judgment. Part IV examines an alternative conception of precedent and law, the "prediction model," in which lower court judges would conform their decisions to expectations of how a higher court, if any, would rule on the issue. This Part argues that the prediction model, despite important limitations, offers a useful and legitimate means of addressing cross-cutting majorities. Part V turns to a discussion of meta-precedents: federal court decisions that, explicitly or implicitly, have confronted this issue. Part VI revisits the dicta problem and argues, based on the prediction model, that lower courts should treat cross-cutting majorities as maximally persuasive, albeit nonbinding, authority.


When the Supreme Court speaks with a single institutional voice, the interpretation of the "opinion of the Court"41is a relatively straightforward exercise in discerning substance, not form. However, when the Court issues a fractured opinion, the mechanics of the Court's decision-making process become central and may determine the precedential effect, if any, of each individual opinion. This Part discusses the anatomy of a Supreme Court decision with an eye toward the nature of cross-cutting majorities.

A. The Nuts and Bolts of Concurrences and Dissents

The Justices typically decide the disposition of a case at the weekly conference following oral argument.42After the Justices vote on the judgment,43the most senior Justice supporting the judgment will assign the task of writing the opinion to a Justice who agrees with the judgment.44

Dissenting justices appear to follow a similar opinion-assignment process.45

Each Justice not already assigned to write an opinion is faced with a choice between (1) joining the initial opinion of the majority;46(2) writing or joining a concurring opinion; (3) writing or joining a concurrence in judgment only; or (4) writing or joining a dissenting opinion.47

Properly understood, the concurring opinion (option number two) merely emphasizes both the rationale and result of the main opinion by "running together" with it.48The concurrence in judgment (option number three) is quite different: It agrees with the judgment but is actually a dissent from the rationale adopted by the majority.49A dissent (option number four), of course, is defined by its opposition to the majority judgment.

B. Forms of Cross-Cutting Majority Rules

Recall that a cross-cutting majority depends on dissenting Justices' votes for majority support. This section outlines two special forms of cross-cutting majorities: dual-majority decisions and "irrational" decisions.

1. "Dual Majority" Decisions

Every majority decision on the merits requires logical agreement50on two issues: the proper rule of law and the application of that rule to the facts of the case.51Usually, the same majority coalition agrees on both.52Sometimes, however, one majority coalition-the rule majority-will decide on a controlling rule of law, but a majority coalition made up of different Justices- the result majority-will apply the rule to the facts.53This is known as a dual majority because one majority decides the rule, while another majority decides the result.54In Table 1, which illustrates a dual majority, two majorities have formed, with one supporting rule B and another supporting result X:

Table 1: Illustration of a Dual Majority55

Formal Alignment

Number of

Justices in


Rule Adopted:

A or B



X or Y



A (4)

X (4)

Concurrence in Judgment


B (1)

X (1)



B (4)

Y (4)


Majority #1:

Rule ...

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