Thursday, July 13, 2017

A Sixth Circuit-Themed Primer on the Marks Doctrine, and an Endorsement of a Proposal to Overhaul Marks

**This post now contains a hopefully instructive back-and-forth in the comments section between me and Ryan Williams, the author of the titular proposal to overhaul, or in his view reinterpret, Marks.

One doesn't call one's blog "The Narrowest Grounds" without a healthy obsession with the Marks doctrine, that often mystifying (but really quite simple) heuristic for deciding which opinion, if any, states the holding of a Supreme Court decision that lacks a majority opinion.  And one wouldn't be much of a Court-watcher if one weren't a little curious about how newly confirmed Sixth Circuit judge Amul Thapar (who was a short-lister for the Scalia vacancy before his confirmation) would fare in his first oral argument as a circuit judge, which also happened to be his first en banc.  So I was delighted to hear Judge Thapar jump on counsel in the first 20 seconds of their argument last week with a string of engaged questions on how to apply Marks to Town of Greece v. Galloway, a recent 3-2-4 decision of the Court on legislative prayer.  (Counsel for amicus in support of the plaintiff begins at 11:20 of the argument and Thapar starts in shortly after; the plaintiff argued pro se.)  Unfortunately, Judge Thapar's questions reflect a common misunderstanding of Marks, the prevalence of which in turn reveals the deep incoherence of the doctrine.  Marks, I conclude, should be replaced by Ryan Williams' proposal in "Questioning Marks," which gets what the law should be here exactly right—even though his rule would leave courts, contrary to what he claims, with considerably less guidance in cases governed by fractured precedent, and would require the Court, contrary to what he claims, to overrule Marks.

A.  A Perhaps Irrelevant but Hopefully Amusing Sixth Circuit-Themed Prologue

By way of prologue, the Sixth Circuit has historically had a bee in its bonnet about Marks.  This is in part because the Sixth Circuit, historically an ideologically fractious court, loves to go en banc on those issues that are so ideologically fractious that they fracture the Supreme Court, and then paper over their ideological disagreements in the most legalistic way possible by exhaustively reasoning that their respective favorite concurring opinions in a fragmented Supreme Court decision conveniently happen to be the Court's Marks holding, or, if they dislike all of the concurring opinions they have to choose from, that none of them are.  One of the most memorable (in more ways than one) opinions in the Sixth Circuit's history, Judge Boggs' dissent in the Sixth Circuit's en banc in Grutter v. Bollinger (yes, that Grutter v. Bollinger), began with a seething 5600-word essay on Marks as applied to Bakke (for perspective, that's 500 words longer than this post), with scintillating section headings like "No Set and Subset or Continuum Available," "The Potential for Two Marks Holdings," and, most portentously, "The Dicta Problem."  

The late Judge Martin, the object of Judge Boggs' ire in Grutter (in more ways than one), would respond years later with a mini-essay of his own on "Marks-meets-Rapanos," which seems to have been intended to make a major contribution on the subject but unfortunately defined Marks narrowest grounds in two completely contradictory waysas logical subsets of broader opinions, and as whichever grounds change the law the least from prior precedent.  Several months later, Judge Sutton offered his much clearer take on Marks; it, however, gets much less attention because it doesn't read like a Marks-themed mystery novel.  The panel opinion underlying last week's en banc, baffled by Judge Martin's contradictory definitions, split 2-1 on Marks.  And funnily enough, the other Sixth Circuit en banc last week, which concerned Ohio's execution drug protocols, addressed an area that used to be a Marks problem (albeit an extremely easy one, even for the Sixth Circuit) until the Court cleared the problem up in Glossip two years ago, though not without what it fairly called an "inexplicabl[e]" dissent from Justice Sotomayor on the Court's prior Marks holding.  In short, while advocates in the D.C. Circuit are advised to principally prepare how to answer that court's inevitable questions about Chevron, advocates in the Sixth Circuit might be advised to prepare, at least when relevant, to talk about Marks.

B.  How to Apply Marks to Town of Greece, and Why Judge Thapar and Others Are Confused About What a Narrowest Ground Is. 

The Marks problem posed by Town of Greece is a classic one.  In Town of Greece, five Justices concurred in a judgment reversing the Second Circuit's injunction of Greece's legislative prayers.  Justices Thomas, joined by Justice Scalia, concurred in the judgment on the ground that Greece's legislative prayers were not unconstitutional because they were not legally coercive; absent legal coercion to participate or discrimination as to which faiths got to give the prayers, they would have held that all legislative prayers were constitutional. Justice Kennedy, joined by the Chief Justice and Justice Alito, held that Greece's legislative prayers were not unconstitutional because they were not legally or practically coercive, in the sense that social or political pressures coerce participation; absent discrimination or legal or practical coercion, they held that legislative prayer was constitutional.

Under the prevailing approach to Marks, and the seemingly most legitimatethe logical-subset approach pioneered by Judge Silberman in King v. Palmer, where a court is supposed to ask whether "one opinion is a logical subset of other, broader opinions" concurring in the judgment, such that it can conclude that a majority of the Court concurring in the judgment is logically committed to that subsetit should be easy to see what the Marks rule in Town of Greece is.  Justice Thomas would allow virtually all legislative prayers: those that are non-discriminatory and do not legally coerce participation are constitutional under his rule.  Justice Kennedy would allow a subset of the legislative prayers Justice Thomas would allow; those that are non-discriminatory, do not legally coerce participation, and do not practically coerce participation through social or political pressure are constitutional on his rule.  So it can be said, as Judge Silberman wrote in King, that Justice Kennedy's opinion "embod[ies] a position implicitly approved by at least five Justices who support the judgment"; five Justices agreed that the legislative prayers that Justice Kennedy would allow are constitutional.

At oral argument last week, Judge Thapar didn't see it that way.  He asked why Justice Thomas's opinion wasn't the logical subset of Justice Kennedy's.  After all, Justice Kennedy would invalidate a fairly sizable set of legislative prayers: those that legally or practically coerce.  Justice Thomas, on the other hand, would invalidate a subset of that set: just those that legally coerce.  Wouldn't, Judge Thapar reasonably asked, "all five Justices at the very least agree that legal coercion violates the Establishment Clause?"  On the other hand, Judge Thapar argued, only three Justices think that practical coercion violates the Establishment Clause.

Judge Thapar is right on all counts; he's just wrong about his conclusion.  Justice Thomas's opinion is a subset of Justice Kennedy's, as to the question of what legislative prayers violate the Establishment Clause.  Five Justices do agree that legally coercive legislative prayer violates the Establishment Clause; only three think that practically coercive legislative prayer does.  What this misses, though, is that Justice Kennedy's opinion is a subset of Justice Thomas's as to the question of what legislative prayers don't violate the Establishment Clause.  Five Justices agree that legally and practically non-coercive prayers don't violate the Establishment Clause; only two think that legally non-coercive but practically coercive legislative prayers don't violate the Establishment Clause.  And Kennedy, again, thinks that only a subset of the prayers that Thomas says don't violate the Establishment Clause are actually constitutional.

This seems to present a paradox, but it's one that classical Marks doctrine has an easy answer to.  What Judge Thapar misses, and what many people miss in thinking about Marks, is that the logical subset on which five Justices concurring in the judgment must agree must be one that supports the judgment, and that narrowness is defined relative to the judgment.  Marks asked lower courts to identify "that position taken by those Members who concurred in the judgments on the narrowest grounds," i.e, to determine whose grounds for concurring in the judgment were narrower grounds for concurring in that particular judgment, not to identify whichever position is "narrower" in some more general, non-judgment-specific sense.  In Town of Greece the Court held that Greece's legislative prayers were constitutional, so the subset that five Justices have to agree on in order for any of their opinions to satisfy Marks must be a proposition about which legislative prayers are constitutional, not which ones aren't.  Otherwise, it wouldn't be a ground for the judgment.  Five Justices agreed that legislative prayers that do not discriminate or coerce, legally or practically, are constitutional; that is a rule of law that supports the judgment that Greece's legislative prayers were constitutional.  The implicit agreement of five Justices that legislative prayers that discriminate or legally coerce are not constitutional, on the other hand, does not explain the judgment that Greece's prayers are.  Put another way, given that the Court reversed an injunction of Greece's prayers, the narrowest ground for concurring in that judgment is a rule that upholds fewer prayers.  Had the Court held that Greece's legislative prayers were unconstitutional, the narrowest ground for that holding would be a rule that invalidated fewer prayers.

C.  What Judge Thapar's Misunderstanding Reveals About Marks' Incoherence and the Failed Majoritarian Aspirations of the Logical-Subset Approach.

Once understood this way, Marks is perfectly workable, and the meaning of "narrower" in Marks is no longer a mystery.  But it doesn't make much sense.  First, consider Judge Thapar's misunderstanding of Marks as applied to Town of Greece. His misunderstanding doesn't reveal something uniquely paradoxical about Town of Greece; the same misunderstanding is possible in every case to which Marks applies.  Take, for example, United States v. Alvarez, where six Justices voted to invalidate a law that regulated false speech.  Four applied strict scrutiny; two said that only intermediate scrutiny applied to false speech.  The law in Alvarez failed both. Most people have no difficulty in seeing that intermediate scrutiny is a subset of strict scrutiny in that case; it invalidates a subset of the laws that strict scrutiny would, and six Justices agreed to invalidate at least that subset.  But it's just as true that strict scrutiny is a logical subset of intermediate scrutiny; it upholds a subset of the laws that intermediate scrutiny would, and six Justices were necessarily committed to upholding the subset of false-speech regulations that passed strict scrutiny.  The same is true of any Marks case you can imagine; if one opinion delineates a subset of laws that five Justices concurring in the judgment agree are constitutional, a different opinion will necessarily delineate a subset of laws that five Justices concurring in the judgment agree are unconstitutional.  If one opinion delineates a subset of plea agreements that five Justices concurring in the judgment agree are "based on" the Sentencing Guidelines, another opinion will necessarily delineate a subset of plea agreements that five Justices concurring in the judgment agree are not based on the Sentencing Guidelines.  That's just how logical subsets in this context work; if I think that a certain set of things are "x," and you think that a subset of that set of things are x, I think that a subset of the things you think are not x are not x.

Of course, in all cases to which Marks applies, one of the two logical subsets on which the Court agrees will actually support the judgment, while one won't.  So this may not seem a problem; of course courts should follow the point of majority consensus that supports the Supreme Court's judgment.  But I think it is a serious problem for two reasons.  

In the first place, it makes the content of controlling precedent turn on the happenstance of how the rules the various Justices adopted applied to particular facts, or how the Justices think those rules apply to particular facts.  Had the prayer in Town of Greece been deemed legally coercive, Justice Thomas and Justice Kennedy would have voted to strike it down, and it would have been Justice Thomas who offered the narrower ground for that holding.  Had the law in Alvarez happened to pass intermediate and strict scrutiny, the narrower ground for upholding it would be strict scrutiny, and we'd be saying that the Marks rule on false speech is that only laws regulating false speech that pass strict scrutiny are constitutional.  Because it so happened that it failed intermediate scrutiny, we say that the narrower ground for the holding that it was unconstitutional was intermediate scrutiny.  Oddly, then, because the issue of regulating false speech first reached the Court with an ill-tailored, basically indefensible law, the precedential rule on such laws, as between the opinions concurring in the judgment, ends up being one that upholds as many of them as possible.  But had the law in Alvarez been one that was narrowly tailored to a compelling interest in regulating false speech, the rule that would bind lower courts would be one that upheld as few false-speech regulations as possible.  Certainly this approach identifies reasons for judgments to which a majority of the Court subscribe, and in that sense instantiates the traditional approach to precedent on which the Court binds lower courts by giving majoritarian reasons for its judgments.  But it does this at the cost of randomly translating the Justices' positions into precedent.

Second, Marks overstates consensus.  In Town of Greece the majority concurring in the judgment only agreed that legislative prayers that do not legally or practically coerce are constitutional.  Implicit assent to that proposition grounds the judgment.  But five Justices did not agree that legislative prayers that either legally or practically coerce are unconstitutional; as far as what's unconstitutional goes, five Justices only could agree that legislative prayers that legally coerce are unconstitutional. Once Justice Kennedy's opinion is identified as the one that stated the Court's Marks rule, however, lower courts under Marks are to follow it in full, as if five Justices not only agreed with Justice Kennedy about which legislative prayers are constitutional, but which ones are not.  Recall that under Marks we are to follow the "position" taken by the Justices who concurred in the judgment on the narrowest grounds, not just some aspect of their position with which five Justices implicitly agree.

What results is obesiance to legal rules with which some Justices concurring in the judgment do not agree, not even implicitly.  If a court finds that Justice Kennedy's opinion states Town of Greece's Marks rule, it will enjoin legislative prayers that fail Justice Kennedy's test, even though only three Justices concurring in the judgment agreed that practically coercive legislative prayers are unconstitutional.  Marks takes implicit consensus to a shallow proposition like "legislative prayers that neither legally nor practically coerce are constitutional" and launders that consensus into the much deeper proposition, which then binds lower courts, that "legislative prayers that neither legally nor practically coerce are constitutional, and legislative prayers that either legally or practically coerce are not," or more simply, "the test for whether a legislative prayer is constitutional or not is whether it neither legally nor practically coerces."  Likewise, in Alvarez, where six Justices agreed that regulations of false speech that fail intermediate scrutiny are unconstitutional, and concurred in the judgment because of it, Marks will take that consensus and pretend there was consensus to the far broader proposition that the test of the constitutionality of a regulation of false speech is intermediate scrutiny, though four Justices concurring in the judgment would strike down a regulation of false speech that passed intermediate scrutiny and failed strict.  

Because of the nature of Marks logical subsets, the same problem arises in any case where Marks applies.  Put in roughly formal terms, in a Marks case five or more Justices agree that something is x (where x stands for constitutional, unconstitutional, based on the Sentencing Guidelines, or what have you).  Some of them think that something is x if it is p; others think that something is only x if it is p and q.  All five then agree that something is x if it is within the subset of p things that are both p and qOn the other hand, all five agree that something isn't x if it's within the subset of non-q things that aren't even p. If that was all that bound lower courts, that would be fine.  But Marks says that because majority agreement that something is x if it's p and q grounded the judgment that the thing in the case itself was x, the test for whether something is x or not x is whether or not it's both p and q, though there isn't majority agreement that something isn't x if it isn't both p and q.

The people who subscribe to a logical-subset theory of Marks think the point of identifying the narrowest ground on which a Justice concurred in the judgment is to find a subset of legal grounds for the Court's judgment to which the majority of the Court concurred in the judgment necessarily agree, on the theory that lower courts can only be bound by majority agreement on legal grounds for the Court's judgments.  If that's the point of Marks, then Marks as universally applied isn't doing what it's supposed to.  Instead of binding lower courts to only those points of law to which the majority concurring in the judgment implicitly agreed, it binds them to rules with which Justices concurring in the judgment explicitly disagreed.  

Perhaps following a Marks rule can be justified on the ground that it represents the position of the swing vote necessary to forming a majority for the judgment, and perhaps a swing-vote theory of Marks can be justified on a traditional command theory of precedent; without the swing vote, there's no judgment, so it's his legal reasoning that's truly necessary to the judgment.  Perhaps it can be justified on a predictive theory of precedent; were the Court to grant cert in any given legislative-prayer case before a lower court, the argument would go, the path to a majority would go through Justice Kennedy, so a lower court should try to work out how Justice Kennedy would decide it.  (At least the path to a majority would go through Kennedy if you assume that Justice Gorsuch doesn't agree with the Town of Greece dissenters; these sorts of unseemly, if empirically grounded, assumptions are part of the hazards of a predictive theory of precedent.)  I am inclined to reject the swing-vote and predictive approaches to Marks for reasons either too inchoate or too complicated to go into here ("Questioning Marks" does a good job of rejecting them), but for now all I want to say is that by its own terms, the logical-subset approach to Marks is a failure.  It does not live up to its aspirations of only binding courts to rules implicitly agreed to by the majority of the Court that concurred in a judgment, even though it touts itself for doing just that and vehemently rejects approaches to Marks that bind lower courts to opinions that do not represent logical-subset majority consensus.

D.  "Questioning Marks"—A Solution. . . 

What does live up to the logical-subset approach's majoritarian aspirations is Ryan Williams's proposal in "Questioning Marks."  Williams argues that a lower court should simply follow all opinions concurring in a fractured case's judgment.  If the majority concurring in the judgment would agree on the result in a given case before a lower court, the lower court is bound.  But if the result would differ depending on which opinion concurring in the judgment the lower court applies, the lower court isn't bound, and can choose between the various rules proffered by the Justices concurring in the judgment.  So in the case of Town of Greece, a lower court is bound by the two propositions as to which the majority implicitly agreed; a legislative prayer is constitutional if it neither legally nor practically coerces, and unconstitutional if it legally coerces.  When it comes to prayers that are non-coercive in all senses, and prayers that legally coerce, both Justices Thomas and Kennedy's opinions point to the same result.  A lower court is not bound, however, to follow what the prevailing approach to Marks would call the Marks rule of Town of Greece:  that a legislative prayer is unconstitutional if it practically coerces.  If a legislative prayer practically coerces but doesn't legally coerce, Justices Kennedy and Thomas would disagree on whether it's constitutional, and lower courts have discretion to follow whichever opinion they find more persuasive on that point.

1.  That (Correctly) Deprives Lower Courts of All the Guidance That Marks Purports to Offer. . . 

Williams, being a savvy marketer of his idea, claims in favor of his approach to fractured opinions that it actually gives lower courts more guidance than the logical-subset approach to Marks, pointing out that in cases where five Justices will always agree on the same result but have logically unrelated reasons for doing so (for example, in McDonald five Justices agreed that the Second Amendment was incorporated as to the states, but couldn't agree on what part of the Fourteenth Amendment did the incorporating), his rule will offer guidance where the logical-subset approach doesn't.  It isn't at all clear to me, though, that a significant number of fractured opinions generate predictable results under Williams' approach without offering a logically nested set of reasons.  He gives two examples, Rapanos and McDonald, of a fractured opinion that's technically failed to generate a Marks rule on the logical-subset approach (though no one even thinks of McDonald in Marks terms); Freeman, as a pending cert petition and a couple circuit opinions argue, is perhaps another.  On the other hand, we can all rattle off lots of fractured opinions where one opinion's rationale cleanly nests within that of another.  It strikes me that constitutional doctrine (which tends to produce most of the Court's fractured opinions) being what it is, it will usually be the case that one opinion concurring in the judgment states a rule that's a logical subset of other opinions concurring in the judgment, either because it requires a more or less demanding standard of review that's subsumed within the other opinion's standard, or because it adds or subtracts some factor from the other opinion's test.  Moreover, for Williams to be right about his approach to Marks offering significantly more guidance, the areas of logical non-overlap that cause an opinion to run afoul of the logical-subset approach have to be relatively small (as they perhaps are in Freeman or Rapanos), or his approach, which only binds lower courts where opinions agree on results, won't offer much more guidance than the logical-subset approach does in these sorts of cases.

What is clear to me is that Williams' approach deprives lower courts of precedential guidance in the cases where identifying a Marks rule actually matters.  Courts could figure out, without Marks or really even Town of Greece, that a legislative prayer in which onlookers are legally coerced by contempt sanctions to participate violates the First Amendment.  Courts could figure out, just from reading Town of Greece without the aid of a Marks doctrine, that a legislative prayer that isn't discriminatory or coercive in any way doesn't violate the First Amendment.  Courts could figure out, without any help from the Supreme Court at all, that a regulation of false speech that passes strict scrutiny is constitutional, and after reading Alvarez, courts could figure out without help from Marks that at the least regulations of false speech that fail intermediate scrutiny are unconstitutional. What courts want Marks for is to figure out what to do with cases where the majority that concurred in the Court's judgment would disagree.  The reason people fight over Marks in cases is that it matters in those cases whether a legislative prayer need only be non-coercive legally or must be non-coercive practically too, or whether a regulation of false speech has to pass intermediate scrutiny or strict scrutiny too.  The logical-subset approach gives lower courts answers to these questions in the numerous fractured cases (more numerous in my view than Williams's) where one opinion is a logical subset of the other.  Williams's approach does not, and really only tells lower courts to heed obvious constitutional truisms and to not to be on the wrong side of a whole majority concurring in a judgment.  

That, however, is in my view a virtue of his rule, not a bug (though courts thinking about adopting his rule and jettisoning the logical-subset approach ought to realize what they're getting into and not take his claims of increased guidance for granted).  Instead of binding courts to legal rules that only one or two Justices think are right, for the reason that a shallower version of those rules randomly happened to be the narrowest ground for the result at which the Court happened to arrive on the facts of the case before them, Williams would only bind lower courts to points on which the majority of the Court concurring in the judgment agreed.  As to points on which the Court can't agree, there's no reason for its decisions to be binding, and no urgent need for binding guidance on the areas of intra-majority disagreement in the handful of fractured opinions the Court issues.   

2.  And Requires the Court to Overrule Marks.

Unfortunately, Williams's proposal can't become the law until we overrule Marks—though Williams, being, as I say, a savvy marketer of his idea, insists otherwise.  Marks said that lower courts were bound by "the position taken by those Members [of the Court] who concurred in the judgments on the narrowest grounds."  This language, whatever other ambiguities it famously has, clearly instructs lower courts to figure out which "Members" concurred on the narrowest grounds (whatever that means) and then follow their "position."  Williams suggests that it might be read to mean that courts are bound by "the reasoning within the concurring opinions [by which he means a combination of reasons gleaned from multiple concurring opinions] that a majority of the concurring Justices support."  I simply cannot see how he gets to there from Marks 

Besides being hopelessly at odds with what Marks said about identifying the holding of a fractured opinion, he can't begin to explain the actual holding of Marks.  In Marks, the Court, after stating its narrowest-grounds rule, held that under that rule "the view of the Memoirs [v. Massachusetts] plurality therefore constituted the holding of the Court and provided the governing standards . . . [and] was the law" on what could be prosecuted as obscene in the post-Memoirs, pre-Miller v. California years(Marks was decided after Miller but involved a pre-Miller offense; hence the need to clarify what Memoirs meant after it had been overruled.)  It didn't say that under Memoirs, lower courts were obliged to hold a prosecution for obscenity unconstitutional if it were under the plurality's test and that of the concurring opinions, but that if a prosecution were constitutional under the plurality's test but not the concurring opinions, a lower court could have done what it wanted.  It simply said that the plurality's "view" was the Court's "holding," "provided the governing standards," and "was the law."  Williams says that in the context of Marks itself, which was a case that he claims only turned on what the law was when the Memoirs plurality and the concurring opinions in Memoirs generated the same result, what the Court said made sense.  But this is really just to say that the Court could have reasoned in a completely different fashion to the same result.  Marks did not say that for purposes of retroactivity, the law pre-Miller was at least what the Memoirs plurality said it was ; it said it was the holding of the Court, the governing standard, and the law, from which Miller "marked a significant departure." 

What really proves Williams wrong is two things: the Court's discussion of pre-Memoirs practice, and the fact that, in Marks, the concurring opinions and plurality in Memoirs didn't necessarily align.  First as to the practice.  In arguing that Memoirs' holding was clear, fractured though it was, the Court praised lower courts for correctly and universally reasoning that under Memoirs "[m]aterials were deemed to be constitutionally protected unless the prosecution carried the burden" of meeting the plurality's test, in which case they weren't protected—though two concurring Justices in Memoirs would have banned obscenity prosecutions altogether.  Under Williams's approach, lower courts reviewing a prosecution of materials that qualified as obscene under the Memoirs plurality would have had a choice:  agree with Justices Black and Douglas that the First Amendment forbade all obscenity prosecutions, or agree with the Memoirs plurality that some materials could be banned as obscene.  Yet that's just what the Court said lower courts correctly didn't do; Marks, in fact, is all about how definite and non-discretionary the law was before Miller, such that application of the Miller test to pre-Miller offenses was impermissibly retroactive.

As to the result of Marks, Williams says that Marks was just about whether you could give a Miller instruction on a pre-Miller offense without violating due process; if lower courts were bound pre-Miller to turn away obscenity prosecutions that didn't, at least, meet the Memoirs plurality's more demanding test, the answer was no.  So, he reasons, that's all the Court had to decide: whether the plurality controlled when it aligned with the concurring opinions that would have banned obscenity prosecutions, and under those circumstances they could loosely talk of the plurality being controllingBut that's not really all that Marks was about; Marks was also about how the jury should be instructed on remand.  The Court didn't know whether Marks was scot-free under the Memoirs plurality or not; in fact, as the Court noted, the Sixth Circuit had held below that he was guilty under either Miller or the Memoirs plurality, though the Court said that that should be left for a "properly instructed jury" to decide. So whether the district court had to instruct the jury under the Memoirs plurality, as I read Marks, or was free to choose between the Memoirs plurality and holding all obscenity prosecutions unconstitutional, as Williams reads Marks, mattered enormously. Contrary to what Williams suggests, the Court decided just this question, and held that Marks was "entitled to jury instructions requiring the jury to acquit unless it finds that the materials involved were 'utterly without redeeming social value'"—that is, obscene under the Memoirs plurality.  It then remanded for further proceedings consistent with its opinion, so a "properly instructed jury" could decide whether Marks really was guilty under the Memoirs plurality or not.  Were Williams right, Marks couldn't have held what it did; it would have held that the district court could either give the instruction it described, or hold, if it wanted, that all obscenity prosecutions were unconstitutionalSo I conclude that for "Questioning Marks" to become the law, the Court would have to overrule Marks first.  But again I view this as a feature of Williams's proposal and not a bug.


  1. Many thanks Asher for this very thoughtful engagement with my piece. I'm glad to see that we largely agree about the bottom line of how Marks should be corrected, though we disagree about the right way to get there. I want to post a few thoughts but need to break into multiple comments due to character limits. This will be the first post of 3.

    With regard to your point about guidance, you are correct that an approach that singles out a particular opinion as binding will provide more determinate guidance to lower courts than one that does not. I never intended to suggest otherwise. My argument is that the current Marks rule, at least as applied by the lower courts, fails to deliver such guidance because lower courts lack a clear understanding of how the rule should apply. You suggest that I am focusing too much on cases where Marks breaks down due to a failure of implicit consensus. But I’ve read a great many fractured majority cases and it does not strike me that such cases are particularly rare or aberrational. At a minimum, it would be good to have some theory of how to extract precedential guidance from those cases even if one is convinced that the logical subset approach should be retained where possible.

    Moreover, as your discussion of Judge Thapar’s questions suggest, there is sometimes confusion and disagreement over whether a logical subset even exists with respect to some cases or how to identify it (see, for example, the way Freeman has been characterized by different factions on the D.C. Circuit and elsewhere). I would submit that where different judges disagree about whether a particular opinion is binding, there has been a failure of guidance even if the judge who believes the opinion is binding has a clear sense of how to proceed. In any event, I don’t see enhanced guidance as a major selling point for my suggested approach (which is why I included a fairly lengthy discussion in the piece about why guidance should not be the overriding concern in formulating a plurality precedent rule – see pp. 853-59).

    1. On the matter of guidance, your article definitely argues that the logical-subset approach to Marks should be rejected in favor of your approach because your approach gives more guidance; you make this claim most aggressively at page 850, saying your approach can give guidance as to "virtually all plurality decisions" and logical-subset can't. You say it's otherwise acceptably majoritarian (though as I hope I've convinced you and others, it's actually not) and that its real failing is just that it doesn't extract binding holdings in supposedly many cases. I'm not sure how we are to figure out who's right about the frequency of "fractured" cases, but I will say that far often than not when I see Marks being invoked, the underlying precedent is a case with a fairly categorical plurality and a more moderate and completely lesser included concurrence. What I think your article elides is that your approach would reduce the guidance those cases give (though again, that's fine by me) to squeeze some guidance out of what I really do think is a smaller set of fractured cases. Absent my majoritarian reason for rejecting logical-subset, I don't think you have a good argument for preferring your approach, and I do want people to understand that the choice really is between greater guidance and strict majoritarianism. Though that may not be as winning an argument for our preferred rule.

      I am not at all concerned about the fact that people sometimes misunderstand logical-subset. While these misunderstandings are suggestive of the rule's underlying incoherence, the misunderstandings themselves are easily corrected and avoided. The requirement that the logical subset a court identifies must be a ground for the judgment, not a ground for its obverse, is pretty easy to master once explained. I believe that standards that are ambiguous in application have guidance problems, but the fact that some people sometimes misunderstand a clear though somewhat subtle rule isn't a reason, for me anyway, to adopt a more simple-minded rule so people don't make mistakes. As for the difficulties in some cases in determining whether an opinion is an entirely lesser included subset, I don't believe these are real difficulties; the factions on the D.C. Circuit and elsewhere that find a Marks rule in Freeman tend to do so either by virtue of failing to rigorously apply logical-subset, or by rejecting it (see Kavanaugh's opinion in Duvall). I can't quite see how it can ever be hard to tell whether one rule is a *logical* subset of another; usually a rule can only be a logical subset because it entails all the conditions of another rule, less some or plus some. Sometimes there is no logical relationship between rules but empirically there may be total overlap; that's a little harder to work out, but it turns on whether there's some non-contingent fact that ensures that if some case satisfies Rule A, it will always satisfy logically unrelated Rule B. I think we know that sort of relationship when we see it.

  2. [Second Post of Three] Your suggestion that my approach is incompatible with Marks itself and thus not currently available to lower courts strikes me as more concerning. I agree that all would be better served if the Supreme Court were to clarify its doctrine of plurality precedent, even if that required overruling Marks. But I’m not optimistic that the Court has much current inclination to revisit its Marks framework in any meaningful way. The question of what lower courts are currently permitted to do under existing precedent thus strikes me as very important.

    With regard to the language of Marks, I simply don’t see it as much of an obstacle. The entirety of the Marks Court’s guidance on this point is set forth in the following sentence: “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 . . . .’" (quoting Gregg v. Georgia, 428 U. S. 153, 169 n.15 (1976) (plurality opinion)). I fail to see how this language is “hopelessly at odds” with looking for points of agreement between multiple concurring opinions reflecting agreement among a judgment-necessary majority rather than trying to single out a particular opinion (which will necessarily lack majority support) as fully binding.

    Now, of course, the Marks Court did point to a single opinion from Memoirs – the Brennan plurality as controlling. But as I explain in the Article, that selection made sense in the context of that case for the reasons you note in the post (see pp. 839-40).

    You seem to find that explanation unconvincing for three related reasons: (1.) the language of the Marks decision seems to identify the plurality as the holding of Memoirs rather than one permissible interpretation, (2.) the Marks Court approvingly cited lower court decisions that treated the Memoirs plurality as controlling, and (3.) on remand, the lower court in Marks itself would presumably be required to instruct the jury in accordance with the plurality rather than under one of the broader concurrences.

    I agree that these are all fair points and that I could have said a bit more on this in the Article. But I remain unpersuaded that Marks forecloses the shared agreement approach I advocate in the piece.

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    2. I am a little more optimistic than you about the Court revisiting Marks, as it is frequently petitioned to resolve splits arising from the disputes over what Marks means and has twice explicitly declined to apply it to its own decisions because it found the task too daunting. Your approach has great common-sense appeal and should the Court have to deal with the bearing of Rapanos on clean-water regulation one day, which seems quite possible, they very well might want to say that despite the lack of a true narrowest ground for the judgment, Rapanos controls in cases where the Justices concurring in the judgment would agree. So I would encourage you in any subsequent writings to pitch your idea as a reform.

      I will get to Marks's holding in my third reply, but as to Marks's language, which I grant you is less of a problem for you, the language appears to me to call for courts to identify a singular position, and to do so by identifying the Justice or Justices who, as between all the Justices concurring in the judgment, gave the most narrow reasons for concurring. The way you read the sentence is sort of like interpreting a command to "buy the burger from whichever restaurant or restaurants has or have the cheapest one" to mean you should figure out which restaurant has the cheapest plain burger and which restaurant has the cheapest toppings and apply the cheap toppings to the other restaurant's cheap burger. But what you're doing seems even odder to me, because I can't see what you think the word "narrowest" is doing in the sentence, or how you offer a plausible reading of it. How does "narrowest grounds" mean a group of cases described by the overlap of different and sometimes logically unrelated grounds? Take Freeman. My vague understanding is the concurring opinion says everything turns on whether the Guidelines are discussed in the plea agreement, whereas the plurality thought everything turned on whether the court considered the Guidelines in accepting the agreement. What is the "position taken by those Members who concurred in the judgments on the narrowest grounds" that should "be viewed" as "the holding of the Court" here? The position - taken by absolutely no one who concurred in the judgment - that both of these conditions must be satisfied? What work, then, does the language "*those* Members who concurred . . . on the narrowest grounds" do on your rule, since the position you follow would be a compound of that of every concurring member, and always would be on your rule? Doesn't "those" unambiguously refer to some subset of the concurring members, i.e., the subset whose singular position is the narrowest? This seems especially obvious given that the sentence begins "When . . . no single rationale explaining the result enjoys the assent of five Justices. . . ."

  3. [Third and Final Post] Again, the context of the decision is key. As I explain in the Article, the shared agreement approach does not leave lower courts wholly unguided in choosing between two or more judgment-supportive opinions from a plurality decision. Rather, lower courts should make that decision based on which of those opinions best accords with the relevant universe of background legal sources – including other relevant precedents.

    The First Amendment standard prior to Memoirs, articulated in Roth v. United States was far less speech-protective than any of the judgment-supportive opinions in Memoirs. Roth was a binding decision endorsed by a majority and, as such, could only be altered or overruled by another majority-supported Supreme Court decision. Neither the broad speech-protective rationale endorsed by Justices Black and Douglas in Memoirs nor the alternative “hard core pornography” test endorsed by Justice Stewart was endorsed by a majority of the Justices in Memoirs. But a majority did agree that Roth should be modified at least insofar as it conflicted with the position articulated by the plurality (though again, some members of that majority would have preferred to go farther). Given the background rule of Roth, it made perfect sense to treat the Memoirs decision as controlling only insofar as a majority of the Memoirs Court agreed that the Roth standard should be changed, which, in practice, meant that the plurality opinion controlled.

    I believe a major deficiency of the pure “logical subset” interpretation of Marks and other, related interpretations is that they can sometimes result in the opposite outcome – i.e., allowing binding precedent to be overruled or altered by an opinion that did not receive majority support. I think the Shady Grove opinion that I focus on toward the end of the Article (pp. 859-64) illustrates this point. The specific holding of that case was that Federal Rule of Civil Procedure 23 could be applied by a federal court exercising diversity jurisdiction notwithstanding an apparent conflict with a New York civil rule addressing the same subject. The plurality articulated a test that would have resulted in treating far more Federal Rules as valid than would the test proposed by Justice Stevens’ sole concurrence. As such, Stevens’ opinion would likely be considered a “logical subset” of the plurality’s. But the test endorsed by Stevens—which no other Justice supported—at least arguably conflicts with earlier Supreme Court case law elaborating the Erie doctrine (particularly Sibbach v. Wilson & Co.). Treating Stevens’ opinion as controlling simply because it was the “narrowest” opinion supporting the judgment would thus result in enabling a single Justice to overrule prior binding precedent.

    I don’t think Marks is fairly read to compel such a result and I believe there are strong normative and institutional reasons for believing such a result is deeply undesirable. Ultimately, this is of course an issue for the Supreme Court to decide and if they choose to clearly and unambiguously endorse the “logical subset” test or some alternative test for plurality precedent, then lower courts should fall in line. But I don’t read Marks itself—or anything else the Court has said on the topic—to directly compel such a result.

    1. Of course I agree with what you say about Shady Grove and do not support the logical-subset approach; where we disagree is just that I think that means I also don't support Marks. I think your invocation of Roth is ingenious, but of course, Marks did not reason that the sentencing court would have had a choice to choose between dismissing the prosecution as unconstitutional and following the Memoirs plurality but for Roth; rather, the Court only mentions Roth to say that Roth was not the law after Memoirs, not that it vestigially remained the law because the Roth majority agreed obscenity was regulable and only a majority could overrule its holding so. Then you must contend with footnote 15 of Gregg, of which Marks's famous formulation is a quote, which said that "the holding of the Court [in Furman] may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds— MR. JUSTICE STEWART and MR. JUSTICE WHITE." Is there an analogue to Roth in Furman? Not exactly, because as the Court says in Gregg sentences before that footnote, until Furman "the Court never confronted squarely the fundamental claim that the punishment of death always, regardless of the enormity of the offense or the procedure followed in imposing the sentence, is cruel and unusual punishment in violation of the Constitution." So when they say that Stewart and White may have stated Furman's holding because they gave the narrowest reasons for holding the statutes there unconstitutional and didn't say, as others did, that the death penalty was per se unconstitutional, you can't say that that's because some prior case held the death penalty was constitutional and the concurring Justices couldn't singlehandedly overrule that case. Ultimately I think, and I suspect you agree, that you offer a barely plausible reading of Marks that's far from its most natural or best reading (where by "best" I just mean the reading that gets the apparent intentions of the Court right), though I very much agree that it would be nice if Marks meant what you say it did.

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