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.
In Ziglar v. Abbasi, the Court ruled against plaintiffs seeking relief from allegedly unconstitutional discrimination and abuse in the wake of 9/11. Perhaps the largest flashpoint in the case concerned the Court’s treatment of Bivens, a landmark ruling from 1971 that created a cause of action for damages for Fourth Amendment violations by federal officers.
Over the pasts few days, critics of Abbasi have argued that Bivens is now “all but overruled” and “all-but limited … to its facts.” But similar claims have been made before—and will likely be made yet again. If Bivens has nine lives, it seems to have two or three left to go.
Many commentators have discussed whether President Trump could lawfully fire Special Counsel Mueller, despite a DOJ regulation providing that the special counsel may be removed only for cause by the Attorney General. But even if the president lacked lawful authority to remove Mueller, would any meaningful judicial remedy follow? Remarkably, the DC Circuit recently discussed this general issue during the en banc oral argument in the CFPB removal case.
Yesterday, Morales-Santana held that an individual had been denied citizenship based on a gender-discriminatory law that violated equal protection. Yet the only practical effect appears to be that, in the future, even fewer people will obtain citizenship. That outcome has already prompted a lot of commentary, including from Howard, Ian, and Will. Here, I add two points. First, the Court’s exclusively “prospective” remedy appears not to have fully remedied the asserted discrimination, even on the Court’s theory. Second, the Court’s limited grant of relief interestingly blurs the traditional distinction between precedent and judgment.