A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks Over Van Orden v. Perry

• Jurisdiction: United States,Federal
• Citation: Vol. 85
• Publication year: 2021

85 Nebraska L. Rev. 830. A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks over Van Orden v. Perry

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Note(fn*)

A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks over Van Orden v. Perry

TABLE OF CONTENTS

I. Introduction .......................................... 831 R
II. The Marks Doctrine and Supreme Court Treatment of
Plurality Precedents .................................. 833 R
A. The Marks Doctrine: Establishing a Plurality
Precedent ......................................... 834 R
1. Origin and Application ......................... 834 R
2. Determining a Plurality Decision's Narrowest
Ground--Two Methods ........................ 835 R
a. The Implicit-Consensus Model--Finding an
Underlying Agreement ..................... 836 R
b. The Predictive Model--Finding a Dominant
Second Choice ............................. 836 R
B. Supreme Court Treatment of Marks and Plurality
Precedents ........................................ 838 R
1. The Court Applies the Marks Doctrine When
There is No Lower Court Confusion ............ 839 R
2. The Court Bypasses the Marks Doctrine When
There is Lower Court Confusion ............... 840 R
a. Discarding the Plurality Precedent ......... 840 R
.b. Readopting the Plurality Precedent ......... 841 R
III. Van Orden v. Perry ................................... 843 R
A. The Facts ......................................... 843 R
B. The Plurality Decision ............................. 845 R
IV. Why the Supreme Court Should Reconsider and Discard
the Plurality Precedent of Van Orden v. Perry ......... 848 R

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A. Van Orden's Precedential Value Under the Marks
Doctrine .......................................... 849 R
1. The Opinions .................................. 849 R
2. The Narrowest Ground ........................ 850 R
B. The Circuit Split in Interpreting Van Orden's
Precedent ......................................... 852 R
1. The Tenth Circuit ............................. 852 R
2. The Fourth Circuit ............................ 853 R
3. The Eighth Circuit ............................ 854 R
C. Van Orden's Substantive Problems ................ 857 R
1. The Traditional Tests--Continuing
Uncertainty ................................... 857 R
2. The Marks Issue--A Lonely Precedential View . 859 R
a. The Legal Standard Involved ............... 859 R
b. The Application of the Facts to the Legal
Standard .................................. 862 R
3. A Tenuous Grandfather-Clause Factor ......... 864 R
a. Time Without Legal Challenge ............. 865 R
b. Geographic Inconsistency ................... 866 R
c. The Negative Inference .................... 867 R
d. The "Divisiveness" Issue ................... 868 R
V. Conclusion ............................................ 871 R

Thus, we remain in Establishment Clause purgatory.(fn1)

I. INTRODUCTION

Nobody likes plurality decisions. Former Chief Justice Rehnquist called them "genuine misfortunes,"(fn2) since they are filled with unique and ominous issues. Often arising in cases involving contentious subjects,(fn3) the reasoning behind these decisions' holdings by definition did not receive majority support.(fn4) Nevertheless, the fate of any particular plurality decision is an open question, as its initial instability does not always inhibit its ability to solidify as law. While some are discarded over time,(fn5) others (for better or worse) become legal mainstays.(fn6)

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After the Supreme Court hands down a plurality decision, lower courts must discern its precedential value according to the Marks doctrine of Marks v. United States,(fn7) which states that the binding precedent of a plurality decision should be the rationale of the Justice(s) who concurred on the "narrowest grounds."(fn8) Despite this established method, lower courts sometimes struggle to determine and apply plurality precedents,(fn9) and eventually cases with similar issues climb the ranks of appellate courts. Therefore, in addition to creating plurality decisions, the Court also determines their fates, deciding whether or not to follow stare decisis in subsequent cases where the plurality precedents are applicable.(fn10)

The Court follows a pattern when reviewing its plurality precedents, a pattern which depends upon lower court confusion and upon the Court's own evaluation of a precedent's substantive worth.(fn11) When the precedent of a plurality decision has been clear to lower courts, the Court relies on the Marks doctrine to uphold it.(fn12) If, however, lower courts are split over the correct application of a plurality precedent, the Court bypasses the Marks doctrine to reconsider the issue in dispute.(fn13) In these situations, the Court frequently discards the plurality precedent in an attempt to announce a better prece-dent.(fn14) In other cases, however, the Court chooses to follow the plurality precedent's reasoning because the Court agrees with its substantive law.(fn15)

In the recent plurality decision of Van Orden v. Perry,(fn16) the Court decided that a long-standing government display of the Ten Commandments on the capitol grounds of Texas, which is surrounded by other historical monuments, does not violate the Establishment Clause.(fn17) The Court, however, was starkly divided over the issue. In fact, Van Orden's plurality decision turned on the swing vote of Jus

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tice Breyer, whose rationale should be considered Van Orden's binding precedent under the Marks doctrine.(fn18) The question that emerges is how the Court should treat this precedent in the future. Should the Court uphold Van Orden's precedent under the Marks doctrine? If not, when the Court reconsiders the issue, should it discard or readopt the precedent's rationale? In other words, should the Court consider the precedent substantively desirable law?

This Note addresses these questions. Specifically, this Note explains why, when another government display of religion case is granted certiorari, the Supreme Court should bypass the Marks doctrine to reconsider Van Orden's issue and why the Court should discard Van Orden's plurality precedent. To appreciate why this outcome is appropriate, one must understand how plurality precedents are determined, as well as how and why the Court decides their end fates. Therefore, Part II summarizes the Marks doctrine and how the Court reviews its plurality precedents. Part III then discusses Van Orden's plurality decision. Next, Part IV first determines Van Orden's precedential opinion under the Marks doctrine, concluding that it is Justice Breyer's concurrence. Second, that Part details the developing circuit split in interpreting Van Orden's precedent. Finally, that Part exposes the substantive problems of this precedent. Because of the developing circuit split, the Court should bypass the Marks doctrine to reconsider the issue.(fn19) Because of the precedent's substantive problems, the Court should discard it altogether.(fn20)

II. THE MARKS DOCTRINE AND SUPREME COURT TREATMENT OF PLURALITY PRECEDENTS

In determining the appropriate fate of Van Orden v. Perry(fn21) as precedent, it is necessary to understand plurality precedents' underlying procedures. First, the Marks doctrine is the method by which lower courts glean the precedents from plurality decisions.(fn22) Eventually, when a similar case reaches the Supreme Court, the Court decides to either uphold the plurality precedent under the Marks doctrine or bypass the Marks doctrine to reconsider the issue.(fn23) If it bypasses the Marks doctrine, the Court then decides either to discard the plurality precedent in favor of announcing new precedent or to independently readopt the precedent's rationale.(fn24)

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A. The Marks Doctrine: Establishing a Plurality Precedent

The Marks "narrowest-grounds" doctrine is composed of two methods by which a lower court may determine the precedent of a plurality decision.(fn25) First, the "implicit-consensus" model seeks an underlying agreement between the plurality and concurring opinion(s).(fn26) When a consensus is found, the opinion adhering most closely to this limited position is considered precedent. Second, the "predictive" model essentially ascertains which opinion is the dominant second-choice win-ner.(fn27) By theorizing which opinion is the second choice of a majority of Justices, the narrowest ground emerges.

1. Origin and Application

Originally, when plurality decisions were issued only the holding was considered binding precedent.(fn28) As plurality decisions increased, many courts thought it necessary to give their reasoning precedential

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respect as well.(fn29) When compared with a majority decision, however, trying to interpret the law of a plurality decision "significantly increases the burden on lower courts."(fn30)

To ease this burden, in 1977 the Supreme Court announced a test to provide a framework for interpreting its plurality decisions in Marks v. United States.(fn31) In deciding Marks, the Court interpreted a plurality decision in which three rationales disagreed as to why a certain book on the life of a prostitute was not suppressible obscenity.(fn32) The Court declared that "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.' "(fn33)

The Court has not clarified the meaning of "narrowest grounds,"(fn34) but it generally refers to the rationale "most clearly tailored to the specific fact situation before the Court . . . in contrast to an opinion that takes a more absolutist position or suggests more general rules"(fn35) or "the rationale offered in support of the result that would affect or control the fewest...