Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.
Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.
Yesterday, SCOTUSBlog posted my oral argument analysis for Dahda v. United States, which asks the Court to decide whether a wiretap order is “insufficient on its face” under a statutory exclusionary rule. My preview post offered some thoughts about whether statutory exclusionary rules should be read broadly, as well as about whether purposive reasoning might prove more decisive in Dahda than textual exegesis.
That last, purposive line of thought became a focus of the oral argument. Here’s a relevant passage from my post on the oral argument:
[W]hen [a wiretap] order is invalid, it can be viewed as insufficient for what it purports to authorize. But just because invalidity can be understood as a form of insufficiency doesn’t mean it has to be. And some justices seemed attracted to the government’s view of insufficiency because it would yield results that accorded with Congress’s apparent purposes.
In an especially interesting exchange, Justice Alito suggested that Title III “was basically anti-crime legislation.” Then, stepping away from the statutory text, Alito tried to imagine what the enacting Congress would have done with the case at hand: “do you think that if this situation had been presented to the Congress that enacted” the law, “that they would have said, yes, in this case, Mr. Dahda can’t be convicted even though what happened here had no effect whatsoever on him?” That question called for an imaginative reconstruction of Congress’s collective purposes, as applied to the facts in Dahda’s case. Mr. Shanmugam predictably replied with his contrary view of the enacting Congress’s goal—namely, “to compel compliance, strict compliance with the requirements of the statute.” And Shanmugam pointed to a Senate report that, in his view, supported that point.
And here’s how my post ended:
During their final remarks, the advocates framed the case more in terms of statutory purpose and policy than text. Mr. Tripp chose to “admit that this statute is ambiguous” and that the Court “could potentially read it” as Dahda suggested. That fair-minded observation seemed designed to let the justices engage their intuitions about what kind of rule would—as Justice Ginsburg had said—“make good sense.” And Tripp emphasized that a broad ruling in favor of Dahda might “be very damaging” for government investigations and prosecutions. Mr. Shanmugam responded in part by offering a different view of Congress’s goals. According to Shanmugam, “we can be certain” that Congress wanted “to ensure strict compliance with the statute’s requirements, and it created a muscular suppression remedy in order to effectuate that goal.” Dahda’s case may ultimately depend less on the statutory text than on which picture of legislative purpose the Court finds attractive.
Over at SCOTUSBlog, I recently wrote an argument preview on Dahda v. United States. Here’s how the post starts:
Dahda v. United States arguably poses a clash between two of the Supreme Court’s recent passions: strict adherence to statutory texts and cutting back on the exclusionary rule. This tension is unusual because the court’s exclusionary-rule decisions typically involve Fourth Amendment violations. By contrast, this case involves Title III of the Omnibus Crime Control and Safe Streets Act of 1968. And that statute contains an explicit exclusionary rule.
The post discusses several important issues in the case, including points bearing on good faith and warrant severability, before raising the possibility that statutory exclusionary rules should be read relatively broadly:
What makes this case interesting is that it invites the Supreme Court to think about the exclusionary rule in a context in which Congress has explicitly provided for it. That changed context creates room for arguments that aren’t available in Fourth Amendment cases. For example, there may be good reason to construe statutory exclusionary rules broadly, on the theory that the government has more ability than criminal defendants to lobby Congress and fix any judicial misinterpretations. That line of reasoning could support a “canon in favor of statutory suppression” as a criminal-procedure counterpart to the rule of lenity.
Further, the presence of a statutory exclusionary rule could alleviate some of the legitimacy concerns that have led the Supreme Court to cut back on Fourth Amendment suppression. Although some judges and writers (myself included) argue that the Constitution requires an exclusionary rule, the court has long expressed qualms about whether the rule has a firm legal foundation. So perhaps the court should be more willing to suppress when the political branches have explicitly chosen to put suppression on the table. Yet there is at least some wiggle room in the statutory text. And when searching for Congress’ aims, the justices may be drawn to their own views of when suppression is appropriate.
Some of the Supreme Court’s most important decisions lack any majority opinion. When confronting those fractured rulings, courts often apply “the Marks rule”—the principle that precedent can be found in the “position taken by those members who concurred in the judgments on the narrowest grounds.” Easier said than done. As the courts of appeals have learned, extracting precedent from fractured decisions can be like squeezing water from stone. And the Court has repeatedly declined to clarify how to apply the Marks rule.
But all that may be about to change. Earlier this month, the Court granted review of Hughes v. United States, which presents not one but two questions on how to apply the Marks rule. The underlying merits issue involves an important aspect of federal sentencing that the Court addressed in Freeman v. United States (2011). Alas, Freeman fractured 4-1-4, with Justice Sonia Sotomayor writing a solo opinion that all eight other Justices expressly disagreed with. After many circuits concluded that Justice Sotomayor’s approach was the “narrowest grounds,” the DC Circuit and the Ninth Circuit concluded that Freeman was binding only for its result—and then chose to follow the Freeman plurality. Hughes may finally reveal how the Justices would apply the Marks rule in that kind of case.
There’s a lot to say about Hughes, but for now I’d like to add a perspective that isn’t directly represented in the cert papers: the Court should throw the Marks rule overboard. By favoring the “narrowest grounds,” however defined, Marks creates inefficient interpretive burdens for later courts, privileges outlier views among the Justices, and discourages compromise. Moreover, the Marks rule is not well supported by history and does not reliably reflect majoritarian views on the Court. So instead of seeking out the “narrowest grounds,” courts should simply ask whether a majority of the Court has expressly endorsed a single rule of decision, even if not in a single opinion. That approach would place the burden of precedent formation on the most efficient actors—the Justices themselves.
I defend that position in a new draft paper. The paper also presents evidence of how the Supreme Court, federal circuits, and state appellate courts are actually applying Marks. In brief, the data shows that lower courts are using the Marks rule with rapidly increasing frequency. The Marks rule is thus on the way to becoming a staple of appellate practice—and possibly a framework opinion. Yet courts often disagree about how Marks’s “narrowest grounds” test applies, and explicit Marks attention is largely focused on a relatively small number of fragmented decisions. These findings can help courts, commentators, and litigants evaluate Marks’s practical operation, as well as the costs and benefits of abandoning it.
Hughes calls for more than just rationalizing Marks: the parties—and the Justices—should consider whether the Marks rule is worth having at all.
First posted on Prawfs.
Today, the Supreme Court has not only initiated an e-filing system, but has also begun making e-filed documents immediately available on the Court website. For the first time, the Court’s filing system is more transparent than the PACER system long used by lower federal courts.
As someone who has previously written more than one complaint about the Court’s shortcomings on this score, I just want to congratulate the Court for taking this step. I am most excited about the prospect that the Court’s non-merits actions—like emergency stay applications in cases involving executions and elections—will become visible in time for greater public discussion.
It will be interesting to see if other components of the federal judiciary now follow the Court’s lead. For example, will PACER become more easily accessible, or accessible free of charge?
First posted on Prawfs.
Last month, the Supreme Court heard argument in DC v. Wesby, the justices’ latest case on Fourth Amendment civil suits for damages. This time, the facts involve the arrest of twenty-one people who were attending what even their attorneys call a “licentious” house party. Wesby draws into sharp relief the role of perspective in Fourth Amendment litigation. As Justice Kagan noted during oral argument, the appropriate legal rule seems to change depending on whether we adopt the perspective of the arresting officers or the party-going arrestees.
In a forthcoming paper entitled “Fourth Amendment Fairness” (draft available here), I argue for a perspectival shift in Fourth Amendment doctrine that is consistent with the line of reasoning that Kagan and other justices explored in the Wesby argument. The paper provides a “contractualist” account of Fourth Amendment fairness in general; but in this post, I’ll focus on the perspectival issues raised in Wesby, without all the philosophical trappings.
In Carpenter v. United States, the Supreme Court will soon consider whether there is a reasonable expectation of privacy in “cell-phone records revealing the location and movements of a cell-phone user over the course of 127 days.” Some courts have found guidance in the Wireless Communication and Public Safety Act of 1999, which provides statutory privacy protections for customers’ call location records. Because this issue is one of the less commented-on aspects of the case, I’d like to explore and draw attention to it.