Argument Review: March 27, 2018 — When the Supreme Court Can’t Agree

On Tuesday, March 27, the Court heard oral arguments in Hughes v. United States. The underlying legal issue in Hughes involves certain criminal defendants’ eligibility for sentence reductions. That fairly technical legal issue was previously considered by the Court in Freeman v. United States, which had no majority opinion. Instead, there was a four-justice plurality and a concurrence by Justice Sotomayor, which offered a different rationale from the plurality. Due to the lack of a clear majority and the nature of the reasoning of the different opinions, the lower courts have struggled with how to apply Freeman in subsequent cases. Thus, Hughes also presented important questions about reliance on Supreme Court decisions that lack a majority.

More specifically, Hughes included questions presented about a 1977 case called Marks v. United States, long understood to provide the basic rule for plurality decisions — that the most narrowly-reasoned opinion necessary for the judgment is controlling. In Regents of University of California v. Bakke, for example, four justices would have held that any race-consciousness in university admissions violated federal law. Justice Powell, however, believed that the particular admissions decision at issue was illegal but also believed that race could be taken into account under some circumstances. And pursuant to the Marks rule, Justice Powell’s opinion was long understood to be the controlling opinion in Bakke, as the Supreme Court itself acknowledged. The problem in Hughes emerged because Freeman involved a concurrence whose reasoning had no common rationale with the plurality.

This Marks problem occupied a significant part of the oral argument. When Chief Justice Roberts and Justice Alito asked petitioner’s attorney, Eric Shumsky, how best to apply Marks in this case, Shumsky argued that the Court should “refine” Marks by applying a “subset test,” looking for a common denominator in the Justices’ opinions. But Justice Alito challenged him on what would constitute a “logical subset” in his test, comparing the Justices to nine people who want to see a movie, four of whom want to see a romantic comedy, of which two want to see a romantic comedy in French, and four of whom want to see a mystery. Justice Alito pressed Shumsky on whether the two who want to see a romantic comedy in French are a “logical subset” of those who want to see a romantic comedy. After Shumsky indicated that they probably would be so, Justice Alito said that is problematic because the other two who want to see a romantic comedy might not want to see anything in a foreign language and might even prefer a mystery to seeing something not in English. Shumsky acknowledged the test may be imperfect.

Rachel Kovner argued on behalf of the United States. She argued against the approach adopted by two circuit courts which treat divided decisions of the Court as having no precedential value unless the separate opinions have the same reasoning. Kovner argued that that approach contradicts what the Court said in Marks, is inconsistent with how the Court has applied Marks, and undermines the principle of stare decisis. Justice Ginsburg noted that for many years it was thought that a single opinion can be controlling when the decision is 4-4-1, as in Bakke. Kovner said the reason for allowing such an opinion to be controlling is that it was thought that the majority’s reasoning supports that opinion’s application. Justice Kagan challenged her by noting that in some cases the “middle ground” positions seem “utterly incoherent” to other Justices. And Justice Breyer resisted the call to systemetize Marks, explaining that “law is part art and part science,” and that hard-and-fast rules about how to read opinions will always be inadequate.

The question of how to understand and apply Marks has garnered much commentary. UCLA law professor Richard Re filed an amicus brief in support of neither party arguing for abandoning Marks altogether, and his brief was repeatedly discussed at oral argument. A shorter version of his argument is available here. Other commentary, noting the implications of the Marks question for environmental law, is here, and Justin Marceau for SCOTUSblog covered the argument and the justices’ apparent reluctance to dramatically change Marks here.

ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2020, ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro contributed to this post.

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