Uncertain Precedent

Date01 January 2009
Published date01 January 2009
Subject MatterArticles
American Politics Research
Volume 37 Number 1
January 2009 30-49
© 2009 Sage Publications
hosted at
Author’s Note: The author would like to thank Paul Collins, Suzanne Globetti, Christian
Grose, Marc Hetherington, Stefanie Lindquist, Steve Van Winkle,and Richard L. Vining Jr. for
helpful comments and Matthew Simpson for his research assistance. Correspondence con-
cerning this article should be addressed to Pamela C. Corley, Assistant Professor, Vanderbilt
University,VU Station B#351817, 2301 Vanderbilt Place, Nashville, TN 37235-1817; e-mail:
Uncertain Precedent
Circuit Court Responses to
Supreme Court Plurality Opinions
Pamela C. Corley
Vanderbilt University, Nashville, Tennessee
To what extent do lower court judges follow Supreme Court plurality opinions?
By examining treatments of Supreme Court cases from the 1976-1986 terms by
the Circuit Courts of Appeals from 1976 to 2005, this article addresses the con-
sequences of the Supreme Court’s failure to reach a clear majority decision. I
find evidence that lower courts are less likely to follow plurality opinions than
majority opinions. These findings have implications regarding the authority of
the Supreme Court, compliance, and institutional legitimacy.
Keywords: supreme court; circuit courts of appeals; plurality opinions;
majority opinions; institutional legitimacy
In Regents of the University of California v. Bakke (1978), the United
States Supreme Court addressed the issue of affirmative action in univer-
sity admissions. Six Supreme Court justices filed opinions in Bakke, none
of which garnered more than four votes. Justice Powell authored the
Court’s plurality opinion and provided the swing vote on all issues. Four
justices, led by Justice Brennan, supported the university’s quota system as
a legitimate response to societal discrimination. Four other justices, led by
Justice Stevens, struck down the quotas on the grounds that federally sup-
ported institutions must be color-blind. Although Justice Powell prohibited
the racial quotas, he allowed race to be taken into account as one factor in
university admissions.
The precedential value of Justice Powell’s opinion in Bakke subsequently
became the crux of a circuit court split. In Hopwood v. Texas (1996), the
Corley / Uncertain Precedent 31
Fifth Circuit held that any consideration of race or ethnicity by the law
school for the purpose of achieving a diverse student body is not a com-
pelling interest under the Fourteenth Amendment, rejecting the argument
that Justice Powell’s opinion was the holding of the Court.
Justice Powell’s view in Bakke is not binding precedent on this issue. While he
announced the judgment, no other Justice joined in that part of the opinion dis-
cussing the diversity rationale . . . [T]he Bakke Court did not express a major-
ity view and is questionable as binding precedent (Hopwood v. Texas, 1996).
In contrast, the Ninth Circuit held Justice Powell’s opinion to be good
law (Smith v. University of Washington, 2000): “When we [apply the Marks
analysis], it becomes apparent that Justice Powell’s analysis is the narrow-
est footing upon which a race-conscious decision making process could
stand.” The split between the circuits thus centered on the courts’conflict-
ing interpretations of Bakke and their inconsistent application of Marks v.
United States (1977), which is the Supreme Court’s guideline for reading
its fractured opinions.1
Although the Supreme Court, by a clear majority, held that institutions
of higher education have a compelling interest in educational diversity
(Grutter v. Bollinger, 2003), the split between the Fifth and Ninth Circuits
over the precedential value of Justice Powell’s opinion highlights the prob-
lems created by Supreme Court plurality opinions.
In the early 1940s, the practice of the United States Supreme Court dra-
matically changed from a regime in which individual views were sup-
pressed in deference to the majority to a system in which individual
expression, through the writing of dissents and concurrences, became the
norm. Numerous scholars have examined this decline in consensus on the
Supreme Court and have attributed the change to the leadership of Chief
Justice Stone, Chief Justice Hughes,2or the legal liberalism brought by the
New Deal justices (see Haynie, 1992; O’Brien, 1999; Walker, Epstein, &
Dixon, 1988).
A decision that results in a plurality opinion, in which a majority of the
justices concur in the result but not in the reasoning, reflects extreme dis-
sensus. There have been many proposed explanations for the prevalence of
plurality opinions. Some scholars have blamed plurality opinions on the
lack of institutional leadership on the part of the Chief Justices (Davis &
Reynolds, 1974) while others blame personal differences among the indi-
vidual justices (McWhinney, 1953), the Court’s use of law clerks (Kurland
& Hutchinson, 1983), the lack of technical legal knowledge on the part of

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