In Questioning Marks, Ryan Williams tackles a piece of Supreme Court doctrine that many dismiss with the back of their hand: how to make precedential sense of the Court’s plurality opinions. Oh sure, we all begin with the statement in Marks v. United States that lower courts should ascribe precedential weight to the “holding” of the case, understood as “that position taken by those Members who concurred in the judgments on the narrowest grounds.” But that formulation obscures any number of difficulties. How does a lower court identify the narrowest grounds of the shared decision that produced a judgment that was supported by separate reasons that failed to offer clear guidance in future cases?
Williams first shows that lower courts have taken a range of different approaches to the problem of identifying the narrowest grounds. Some look for an implicit consensus among the five (or more) concurring Justices, others give pride of place to the notion that the Justice casting the fifth vote must have played a decisive role in the outcome and so treat the opinion accompanying that swing vote as controlling. Still others adopt an issue-by-issue approach, looking for the alignment of Justices who expressed agreement with a particular proposition that may be relevant in future litigation. Somewhat controversially, this issue-by-issue approach may also consider the views of dissenting Justices, a group seemingly omitted from the Marks reference to the members concurring in the judgment.
The way lower courts approach these matters may reflect their conception of the nature of a hierarchical judiciary and of their obligations as lower courts. For courts inclined to predict outcomes at the Supreme Court, a tendency to emphasize the fifth vote seems natural–that was the vote needed to nail down the judgment. Others with a bent towards prediction happily consider dissenting views, knowing as they do that the dissenters will likely weigh in on any future question along the lines they have articulated in earlier opinions.
But both approaches can produce real anomalies. Williams tells one dispiriting tale of the lower court reaction to Shady Grove Orthopedic Assocs. v. Allstate Insurance Co. There, as our gentle readers will recall, the Court divided on whether to apply Federal Rule of Civil Procedure 23 (and to displace the New York state prohibition on the aggregation of certain claims) or to defer to state law in a diversity case. A four-Justice plurality, led by Justice Scalia, held that Rule 23 applied and was valid under the Rules Enabling Test articulated in Sibbach v. Wilson & Co. A four-Justice dissent would have viewed Rule 23 as inapplicable, deferring to state law for a complex set of reasons reminiscent of those offered in Gasperini v. Center for Humanities. Justice Stevens cast the fifth-and-deciding vote, agreeing with Justice Scalia in part but arguing that Sibbach was misunderstood to uphold all “arguably procedural” rules. Only Justice Stevens gave voice to his limited conception of Sibbach. We do not know how widely shared his views were; we only know that he was alone in expressing them.
Yet the lower courts have seemingly given effect to Justice Stevens’ opinion on the theory that his was the fifth and deciding vote. This seems particularly wrongheaded, at least as to Justice Stevens’ views about Sibbach. While he may be right, he certainly did not speak for five Justices on that subject. So it is a bit dismaying to learn that his views have taken hold. Even more troubling, according to Williams, lower court decisions do not explore the issues, opting instead for a rather wooden invocation of the Stevens view as controlling by virtue of being the fifth vote.
Williams would solve the Marks problem by calling for a “shared agreement” approach, in which lower courts give precedential effect only to those matters on which a five-Justice majority reached a shared agreement. That approach might, for example, justify the lower courts in extending the Court’s fractured decision that citizens of the District of Columbia are properly regarded as citizens of a state for diversity purposes. While no rationale gained a majority, five Justices did agree on a result that might well apply to citizens of other territories (such as Puerto Rico), as the lower courts later held. But it certainly would not give effect to Justice Stevens’ lone view in Shady Grove.
I found much to like in the paper: a strong command of the cases, a rich theoretical framework in which to evaluate the issues at hand, and a calm and authoritative authorial voice that lets the reader know she is in good hands. I was especially pleased that Williams chose to tackle the problem because it seems most unlikely that the Supreme Court will provide further guidance. The Justices seem far more likely to address a particular lower court disagreement than to nail down a methodological approach to past plurality opinions that might ramify far beyond the particular case, unsettling some bodies of law and producing outcomes that current Justices can neither predict nor endorse. A tip of the hat to Williams for providing a solution that commends itself to courts and theoreticians alike.