Plurality decisions in the Supreme Court of the United States: a reexamination of the Marks doctrine after Rapanos v. United States.

• Author: Cacace, Joseph M.

"First thing I want you kids to learn is how to count to five." (1)

1. INTRODUCTION

   Although the Supreme Court of the United States almost never has trouble counting to five with respect to the ultimate disposition of a case, (2) the Court often stumbles when attempting to agree on the appropriate rationale. (3) If not resolved, this disagreement will lead to the Court's announcing a plurality decision. (4) The Court has handed down a steadily increasing number of plurality decisions throughout its history. (5) Commentators have suggested a number of factors that might account for this increase, including ideological splits among the Justices, (6) an increasingly heavy workload, (7) more cases presenting socially volatile issues, (8) a lack of leadership on the Court, (9) and an increase in "substantive" reasoning in the Court's decisions. (10) Whatever the root causes might be, plurality decisions have become an undeniable part of the Supreme Court's jurisprudence. (11)

   Given this observation, many commentators have called attention to the obvious problems that plurality decisions create. (12) Plurality decisions provide lower courts and litigants with very little guidance as to the state of the law. (13) Even more troubling is that plurality decisions can erode public confidence in the Supreme Court, as a result of the Court's inability to render authoritative decisions. (14) Not surprisingly, many of these critics argue that the Court must do more to produce opinions that achieve majority consensus. (15)

   Nevertheless, several commentators have argued that plurality decisions are not without value. (16) For example, when the Justices fundamentally disagree about a legal principle, it might be best for them to express their individual views and not to "insist on superficial agreement." (17) First, this practice can actually provide increased guidance to lower courts and litigants because it reveals a position that might eventually prevail. (18) Second, both the Justices and lower courts are freer to indulge "innovative and creative" solutions to novel legal issues after a plurality decision than they would be after a majority decision. (19) Since plurality decisions are accorded a lower degree of stare decisis value within the Court, (20) the Justices can continue to explore new rationales until one achieves majority support. (21) Similarly, lower courts have more opportunity to distinguish future cases and develop alternative rationales. (22) This process of "issue percolation" in the lower courts can be helpful to the Supreme Court the next time it confronts the issue. (23)

   The normative value of plurality decisions aside, they have become a conspicuous part of the Supreme Court's jurisprudence. (24) Consequently, the Supreme Court articulated a rule for interpreting plurality decisions in Marks v. United States. (25) The Marks Court announced: "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....'" (26) While this rule--called the "Marks doctrine" or "narrowest grounds doctrine" (27)--resolved some of the interpretive problems unique to plurality decisions, (28) it has proved to be "more easily stated than applied," (29) and has created disagreement among courts and commentators about when and how the rule should apply. (30)

   Accordingly, this Note explores the narrowest-grounds doctrine in an attempt to resolve some of the conflict and confusion that Marks has engendered. (31) This Note begins by addressing the factors that prompted the Supreme Court to pronounce an interpretive rule for plurality decisions. (32) After discussing Marks v. United States, (33) this Note examines two competing approaches to the Marks doctrine. (34) Part II.C.1 describes the conventional approach, which views the Marks doctrine as an application of the principle of majoritarianism to Supreme Court plurality decisions. (35) Part II.C.2 discusses the more novel social choice approach, which deems the Marks doctrine an application of the Condorcet criterion to Supreme Court plurality decisions. (36) Part III of this Note analyzes these competing approaches in light of the Supreme Court's recent plurality decision in Rapanos v. United States. (37) This Note concludes that the conventional understanding of Marks as an application of the principle of majoritarianism is more normatively justifiable than the social choice view of Marks as an application of the Condorcet criterion. (38) Finally, this Note suggests a simple two-step process for lower courts to use when attempting to follow Supreme Court plurality decisions. (39)

2. HISTORY

   1. Factors Contributing to the Need for an Interpretive Rule for Plurality Decisions

      At least four factors contribute to the Supreme Court's need for an interpretive rule for its plurality decisions: the Court's outcome-focused voting protocol is inherently likely to produce plurality decisions; (40) the Court must produce "definitive statements of [its] reasoning" to fulfill its institutional role as the final interpreter of the Constitution and other federal laws; (41) the number of plurality decisions has increased steadily over the Court's history; (42) and lower courts have taken disparate approaches to interpreting the Court's plurality decisions. (43)

      1. Supreme Court's Voting Protocol

         Although the Supreme Court's size has fluctuated between five and ten members throughout its history, (44) the makeup of the Court has remained steady at nine Justices since the passage of the Judiciary Act of 1869. (45) Its fluctuating size notwithstanding, the Court has always decided cases by simple majority vote. (46) The Court determines the ultimate judgment in a given case by aggregating the Justices' preferences for the disposition of the case, without regard to the rationale used to reach that outcome. (47) Outcome voting's focus on the majority's preferred judgment increases the likelihood that the Court will produce plurality decisions because two or more groups of Justices may favor the same result for wildly divergent reasons. (48) Thus, the inherent likelihood that the Court's outcome-voting protocol will produce plurality decisions is one factor suggesting the need for a rule to interpret those decisions. (49)

      2. Supreme Court's Institutional Power

         The role of the Supreme Court today is far more robust than it was at America's founding. (50) The power the Court now wields is due in large part to Chief Justice John Marshall's legacy. (51) Chief Justice Marshall bolstered the Court's authority by eliminating its practice of issuing seriatim opinions, and instituting a new practice of announcing the Court's judgment in a single opinion of the Court. (52) The combination of this new approach to opinion writing and the Court's willingness to issue some rather bold decisions (53) allowed the Court to assume a much more important role than it had at the Founding. (54) The significance of the Court's written opinions grew as they came to embody the final word on the meaning of the Constitution. (55) Thus, it became important for the Court to announce its decisions in clear and well-reasoned opinions. (56) Plurality decisions that produced no opinion of the Court lacked the requisite clarity and presented difficult interpretive problems for those attempting to follow the law as construed by the Supreme Court. (57) Accordingly, while a Supreme Court rule for interpreting splintered decisions was unnecessary at the Founding, such a rule became indispensable as the Court's institutional influence--and corresponding duty to provide guidance for lower courts and other actors--expanded. (58)

      3. Increasing Number of Supreme Court Plurality Decisions

         The third factor leading to the need for an interpretive rule for plurality decisions is that over time the Court has handed down a growing number of plurality decisions. (59) Between 1800 and 1956, the Supreme Court rendered forty-five plurality decisions. (60) Thirty-five of these plurality decisions were handed down after 1900. (61) Furthermore, three-fourths of the thirty-five plurality decisions rendered between 1900 and 1956 came down after 1937. (62) Between 1955 and 1980, the Court issued 101 plurality decisions. (63) Therefore, by the time the Supreme Court decided Marks in 1977, the increasing prevalence of plurality decisions had transformed the phenomenon from an aberration that the Court could overlook to a recurring problem that the Court could no longer ignore. (64)

      4. Divergent Interpretive Approaches in Lower Courts

         At common law and throughout the nineteenth century, plurality decisions created binding precedent with respect to the result only. (65) Thus, the various rationales supporting the Court's judgment in a plurality decision carried no precedential weight, and lower courts only followed splintered decisions if a subsequent case involved very close factual similarities. (66) As the number of plurality decisions grew during the twentieth century, however, lower courts felt the need to rely on plurality decisions for more than just their results and began to explore new approaches to interpreting the rationales in splintered decisions. (67) These new approaches shared the same goal: to disentangle the Court's rationale, or ratio decidendi, from its obiter dictum. (68) Plurality decisions lack a single, clear ratio decidendi, so lower courts were left to their own devices when attempting to discern the Court's holding. (69) The methods that lower courts have employed when attempting to determine the Supreme Court's holding in plurality decisions include: following the plurality opinion as if it were a majority opinion; (70) limiting plurality decisions to their results in the traditional manner; (71) following the most persuasive...