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.