In Ramos v. Louisiana, the Court is considering whether to hold that the Sixth Amendment requirement of jury unanimity applies to states via the incorporation doctrine. But a lot of the Court’s discussion at oral argument focused on issues of stare decisis, particularly what to do with fragmented decisions. Is the Court bound by its prior 4-1-4 rulings; and, if so, what rule is binding? Surprisingly, this question—which I have explored before—bears directly on whether the defendants in Ramos can prevail.
Here’s the background. In Apodaca v. Oregon (1972), the Court affirmed convictions based on non-unanimous state criminal verdicts, but it did so in a 4-1-4 decision. The plurality denied that the Sixth Amendment required jury unanimity. The dissenters thought it did. And all eight of those justices thought the same rule applied in both federal and state court. Justice Powell alone thought that the Sixth Amendment unanimity rule existed but didn’t apply to states via incorporation.
The practical result has been that the Powell view prevailed: non-unanimous jury verdicts continue, but only in state court. And that result makes some sense. When Apodaca was decided, incorporation was still proceeding piecemeal. Against that background, a decision that did not clearly hold in favor of incorporation might simply leave the relevant right unincorporated. If there is a right-by-right presumption against incorporation, in other words, a failed ruling could safely be treated as ruling against incorporation. It would be as though the decision never happened.
But there is another possibility: maybe Apodaca actually did decide the matter, thereby creating precedent on incorporation that cuts against the defendants in Ramos. The source for that intuition flows mainly from a later Court decision, Marks v. United States (1977), which adopted the eponymous “Marks rule” or “narrowest grounds” test:
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 judgments on the narrowest grounds . . . .’
I don’t think it’s a coincidence that the author of Marks was Justice Powell. As someone who had written a number of “middle ground” concurrences in the judgment, Powell probably liked the idea of treating those opinions as precedential. Apodaca is just one example.
But if we apply the Marks rule, is the Powell opinion the narrowest and therefore binding? Maybe not, on the theory that his account of partial incorporation isn’t obviously “narrower” than the plurality’s view that the Sixth Amendment doesn’t include a unanimity requirement at all. Or maybe Powell’s opinion is the narrowest, or otherwise properly viewed as controlling, simply because his proposed rule can combine with the other Apodaca opinions to produce majoritarian outcomes in particular cases.
Or maybe the Court can simply ignore the entire Marks inquiry altogether. That was what Jeff Fisher argued on behalf of the Ramos defendants, and he had a good case to make. In a number of rulings—even more than Fisher noted, actually—the Court has waived away Marks rule questions and just decided the underlying merits as though encountering them for the first time. In other words, the Court has repeatedly acted as though it isn’t bound by its own prior Marks holdings. That happened last year in Hughes v. United States, for instance. Other examples include Seminole Tribe v. Florida and Grutter v. Bollinger.
But the Court has not been consistent in taking that position. Sometimes, as in Marks itself, the Court seems to view its past Marks holdings as real holdings, even when most justices rejected the purported “narrowest ground.” Glossip v. Gross supplies a recent example. So if Fisher’s suggestion were adopted, Ramos would strike at the heart of the Marks rule.
While the Court equivocates on the import of the Marks rule, some courts and commentators have gleaned a difference between what might be called the horizontal and vertical dimensions of Marks. For instance, then-Judge Brett Kavanaugh once wrote the following in a footnote:
When the Supreme Court itself applies Marks, it is not bound in the same way that lower courts are bound by Marksto strictly follow the narrowest opinion from a prior splintered Supreme Court decision. That’s because the Supreme Court is free to reconsider or refine or tweak its own precedents — including splintered precedents — and it does so in appropriate cases. Lower courts, by contrast, are not free to reconsider or refine or tweak Supreme Court precedents. Marksis therefore even more important at the lower court level.
The idea here seems to be that fragmented rulings do matter at the Court; but, like many other aspects of stare decisis, the Marks rule has a greater effect in the lower courts. Ramos gives Justice Kavanaugh an opportunity to refine this idea and put it into practice.
Alternatively, Ramos could finally make crystal clear that the Court treats the Marksrule as optional—but if so, the consequences wouldn’t be limited to the justices. In the Hughes oral argument, Chief Justice Roberts plausibly asserted that lower courts generally want to be affirmed. And the way to do that, he suggested, is to apply some version of the “narrowest grounds” test. Yet that logic simply doesn’t apply in many cases. Justices are replaced, or change their minds. The result is that fragmented decisions aren’t reliable guides to lower courts, particularly if fragmented decisions have no precedential effect in the Supreme Court. Hughes itself ended up illustrating that reality. So if the justices openly ignore Marks, we can expect lower courts to think more often about doing so as well. Fragmented rulings’ fate in the Supreme Court will inform how they are treated elsewhere.
If you’ve read this far, you probably know that I am an inveterate opponent of the Marks rule. I don’t hold out hope that Ramos will eliminate the rule, but I do think it will leave the rule even weaker than it has already become.
First posted on Prawfs.