Questioning marks: plurality decisions and precedential constraint.

• Author: Williams, Ryan C.

Table of Contents Introduction I. Marks v. United States and Its Discontents A. Marks and the "Narrowest Grounds" Rule B. Marks in the Lower Courts: Three Different Ways of Counting to Five 1. The "implicit consensus" approach 2. The "fifth vote" approach 3. The "issue-by-issue" approach C. The Supreme Court's Indifference to the Practical Problems of Marks II. A Fourth Way of Counting to Five: Plurality Precedent and Shared Agreement A. Stare Decisis and the Relationship Between Results, Rules, and Reasons B. What It Means to "Follow the Result" of a Plurality Decision 1. Plurality decisions as incompletely theorized agreements 2. Distinguishing depth from width 3. Connecting results to reasons III. The Case for the Shared Agreement Approach to Plurality Precedent A. Consistency with Marks B. Majoritarianism and Judgment-Supportiveness as Criteria of Precedential Legitimacy C. Implications for Plurality Precedent D. But "What About Guidance? IV. Implementing the Shared Agreement Approach Conclusion Introduction

Justice William Brennan famously quipped that a critical skill for a Justice of the Supreme Court was the ability to count to five. (1) But with due respect to Justice Brennan, knowing how to "count to five" is at least as important for lower court judges forced to grapple with the Supreme Court's decisions. After all, if a majority of the Court's members cannot agree on what governing law requires, they are free to issue separate opinions expressing their own personal views of the law. Where such disagreements prevent the Court from converging on a single majority rationale for the outcome in a case-notwithstanding majority agreement on what that outcome should be--the result is a plurality decision. (2)

Judges in the lower courts do not possess such interpretive freedom. According to longstanding and widely accepted legal norms, lower court judges are strictly bound by controlling Supreme Court precedent regardless of their own views of the merits. (3) But the Supreme Court has provided such courts with frustratingly little guidance regarding how they should understand the precedential effect of the Court's own plurality decisions. The Court's clearest directive on the subject was set forth in a single sentence of a decision handed down more than four decades ago--Marks v. United States. (4) The so-called "narrowest grounds rule" that derives from Marks instructs that when the Justices fail to converge on a single majority rationale for a decision, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." (5)

But this cryptic directive leaves many questions regarding the precedential force of Supreme Court plurality decisions unanswered. For example, does Marks require lower courts to search for a single "narrowest" opinion issued in the precedent-setting case and accord that opinion full stare decisis effect? Many lower court judges believe that it does--even where the putatively "narrowest" opinion reflects the reasoning of only one of the Court's nine members. (6) But others disagree, finding it inappropriate to accord binding effect to portions of a putatively "narrowest" opinion in which a majority of Justices did not explicitly or implicitly acquiesce. (7) Even if lower court judges could agree on an answer to this first question, there would remain a further unanswered question regarding what criteria of "narrowness" they should use to identify the "narrowest grounds" of decision in the precedent case. (8) Yet another unanswered question involves what role, if any, dissenting opinions should play in the Marks analysis. (9) These and other questions regarding the proper application of the Marks framework have long bedeviled lower courts' efforts to identify the controlling portions of Supreme Court plurality decisions.

The conceptual confusion surrounding Marks presents an important practical challenge for lower courts. Although Supreme Court plurality decisions were historically rare, they have grown more frequent since the mid-twentieth century and are now a familiar feature of the Court's decisionmaking. (10) As many Court watchers have observed, plurality decisions often occur in cases involving especially difficult and highly salient legal issues on which public opinion is sharply divided. (11) Some of the most significant and divisive Supreme Court cases in recent history--involving such issues as abortion, (12) gun control, (13) voting rights, (14) affirmative action, (15) capital punishment, (16) and the scope of congressional authority under the Commerce Clause (17)--have been decided by plurality decision. At the same time, the effects of plurality decisions extend well beyond such high-profile contexts. The proper interpretation of plurality precedent also matters for a variety of less prominent legal issues that nonetheless carry substantial importance to the workaday business of the federal courts, such as criminal procedure, (18) sentencing, (19) personal jurisdiction, (20) class certification, (21) and federal preemption of state law. (22)

By their nature, plurality decisions implicate a tension between two distinct but closely related forms of precedential obligation. The first of these obligations requires precedent-following courts to reconcile their decisions with the precedent court's specific judgment--that is, its specification of which party won, which party lost, and the nature of the relief awarded, if any. The second obligation requires that such courts also conform their decision-making to the more generally applicable rules and rationales on which the precedent-setting court relied in reaching that judgment. (23)

These two forms of precedential obligation usually support and reinforce one another. The traditional common law conception of a decision's binding effect--reflected in the notion of the ratio decidendi (literally, the court's "reason for deciding") (24)--presupposes such a connection by limiting a decision's precedential force to those portions of the deciding court's reasoning that were necessary to its judgment. (25) In cases that result in a plurality decision, this presupposed connection between result and rationale is lacking. Because the Justices whose votes were collectively necessary to the judgment do not agree with each other on the appropriate rationale, it is not possible to identify a single opinion from the precedent case as reflecting the controlling ratio.

But the inability to pick out a single opinion from the plurality case as reflecting the controlling ratio does not render the ratio decidendi approach to precedent unworkable. This Article proposes a revised approach to plurality precedent that builds from the ratio decidendi model's core premise: namely, that the precedential effect of a judicial decision should be determined by reference to the deciding court's reasons for judgment.

This revised approach starts from the recognition that plurality decisions involve a special kind of incompletely theorized agreement. (26) Specifically, the defining feature of a plurality decision is agreement among a majority of the Justices on the case judgment without any comprehensive agreement on the reasons why that judgment was correct. But the scope of the Justices' agreement will rarely be limited to the specific factual details of the particular dispute. Rather, the majority Justices will typically support their conclusions by reference to more generally applicable reasons for why the case should be decided in a particular way.

Though no single opinion in such a case provides a comprehensive account of why the winning party won and the losing party lost, the collective sei of the opinions that were together necessary to the judgment can supply such information. Where a case results in a plurality decision, the winning party won and the losing party lost because each of the judgment-supportive opinions compelled that outcome. By looking to this shared agreement among the majority Justices, lower courts can identify the universe of cases that are sufficiently "like" the precedent case to demand consistent treatment. This universe consists of those cases in which the reasons provided by each of the Justices whose vote was necessary to the judgment in the precedent case would compel the same result.

Of course, this approach leaves lower courts without binding precedential guidance in an important category of cases, namely those in which resolution requires choosing from among the various judgment-supportive rationales from the precedent case. But the resulting discretion available to lower courts is a direct result of the Supreme Court's own inability to converge on a single rationale. The Supreme Court's failure to reach majority consensus on the controlling rationale can thus be seen as an implicit decision not to resolve that issue for the lower courts and an implicit delegation of authority to those courts to continue addressing the issue in the manner they did before the Supreme Court intervened. But even in this category of cases, the plurality decision may still exert some meaningful constraining force by closing off certain rationales that may otherwise have been available to the lower courts, including any rationale that would have led to a different result in the precedent case itself.

This Article proceeds in four Parts. Part I briefly outlines the origins of the Marks narrowest grounds rule and describes three distinct approaches to that rule that are discernible in the lower courts' decisions: (1) the "implicit consensus" approach, which views the narrowest grounds rule as applicable to only a limited subset of plurality decisions involving logically "nested" or "telescoping" rationales; (2) the "fifth vote" approach, which treats as binding the opinion reflecting the views of the median or "swing" Justice in the precedent case; and (3) the...