Questioning Marks: Plurality Decisions and Precedential Constraint

Abstract

Understanding the precedential significance of Supreme Court plurality decisions is a task that has long confounded the judges of the lower courts. Surprisingly, the Supreme Court has offered little direct guidance on this question apart from a single sentence in Marks v. United States, 430 U.S. 188 (1977), which instructed that where the Justices fail to converge on a single majority rationale, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” But this single, cryptic directive from a decision handed down nearly four decades ago offers little meaningful guidance to lower courts struggling to apply the “narrowest-grounds” rule to the Court’s fractured majority opinions.This Article suggests a new approach to plurality precedent that focuses on connecting the lower courts’ precedential obligations to the actual majority agreements among the Justices from which plurality decisions result. The defining feature of a plurality decision is the agreement among a majority of Justices on the appropriate judgment in a particular case without corresponding majority agreement on the reasons why that judgment was correct. As such, the judgment provides the natural focal point for determining the lower courts’ precedential obligations. By focusing on the precedent Court’s judgment and the respective rationales for that judgment endorsed by the various factions of concurring Justices, lower courts can identify a universe of subsequent cases that are sufficiently “like” the precedent case to demand consistent treatment — namely, those cases in which each of the judgment-supportive rationales would compel the same result. This approach identifies a class of future results that lower courts will be bound to reach in future cases without constraining them to follow a rationale that was endorsed by only a minority faction on the Court. The approach thus promises to constrain lower courts’ decision-making to some extent while identifying a domain of bounded discretion in which such courts remain free to continue working through for themselves the complicated legal questions that the Court was unable to answer definitively in the original plurality decision.