Tuesday, March 27, 2018

Hughes v. United States Argument Preview, with Argumentative Comments on the Parties' and Amici's Arguments

The Supreme Court is hearing argument this morning, in Hughes v. United States, on the meaning and perhaps the survival of this blog's namesake, the narrowest-grounds rule.  That rule, first adopted by the Court in Marks v. United States, elliptically states that "[w]hen 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 judgment[] on the narrowest grounds."  I have been busy writing an article on my preferred fate for the Marks doctrine that I hoped to publish before the argument, so I haven't had a chance to blog about this important case until now, but in lieu of that as-yet unfinished article I offer this hurried and overlong argument preview, which will contain a prĂ©cis of my views (and criticism of virtually everyone else's).

Hughes arises out of a circuit split on the holding of Freeman v. United States, a 4-1-4 decision of the Court on whether, and when, criminal sentences that follow plea agreements that recommend a particular sentence are based on the Sentencing Guidelines.  Under 18 U.S.C. 3582(c)(2), when a defendant's sentence is "based on" a Guidelines sentencing range that was retroactively lowered by the Sentencing Commission post-sentencing, that sentence can be adjusted to fit the retroactively lowered range.  This puts a lot of pressure, especially in a world where the Guidelines are now advisory, on what it means for a sentence to be "based on" the Guidelines.  In the case of plea agreements under Rule 11(c)(1)(C) of the Rules of Criminal Procedure, the question of whether a sentence is based on the Guidelines was difficult enough to divide the Court 4-1-4.

Rule 11(c)(1)(C) says that in the federal system, a plea agreement can specify a particular sentence or sentencing range—very often one derived from the Guidelines.  The district court has discretion to reject the agreement in light of, inter alia, the Guidelines, but if it accepts the agreement, the sentence or sentencing range binds the court.  The multiple layers of causation between Guidelines and sentence in cases of so-called "C-type agreements" complicate the based-on analysis, and there is a wide range of reasonable views on when C-type sentences are based on the Guidelines, which the various opinions in Freeman respectively advance. 

One view, advocated by the four Justices in dissent in Freeman, is that such sentences are never based on the Guidelines; rather, they are based solely on C-type agreements, which may in turn have their genesis in the Guidelines but whose basis is irrelevant to the basis of the sentences accepting their recommendations.  Another view, argued by Justice Sotomayor's solo opinion concurring in the Freeman judgment, is that a C-type sentence is based on a C-type agreement, but that when the underlying C-type agreement specifically references and employs a Guidelines sentencing range, the C-type sentence is, by way of the transitive property, based on the Guidelines.  Finally, another, broader view, argued by the Freeman four-Justice plurality, is that C-type sentences are usually based on the Guidelines whether their underlying C-type agreements reference the Guidelines or not, because district judges consider the Guidelines in deciding whether or not to accept C-type agreements.  

Perhaps correctly anticipating that, under Marks, their broader opinion would not bind lower courts analyzing the fragmented Freeman decision, and therefore supposing that their responsibility to offer guidance was minimal, the plurality was far from clear on whether all, or only most, C-type sentences were based on the Guidelines in their view.  Instead, the plurality would confuse lower courts with cryptic remarks like (emphases mine), "Even when a defendant enters into an 11(c)(1)(C) agreement, the judge's decision to accept the plea and impose the recommended sentence is likely to be based on the Guidelines," or, "Even where the judge varies from the recommended range, if the judge uses the sentencing range as the beginning point to explain the decision to deviate from it, then the Guidelines are in a real sense a basis for the sentence."  This would frustrate lower courts' efforts to determine what the "narrowest grounds" supporting the Freeman judgment were and ultimately lead to a raging circuit split on the subject, because absent clarity on what the plurality's grounds for concurring in the judgment were, it couldn't be said with certainty that Justice Sotomayor's grounds were narrower.

While law review articles and the petition for certiorari in Hughes will claim that there's a circuit split on what the narrowest-grounds rule means, there's really a rough consensus on the subject, absent one important point of disagreement that divides the parties in Hughes.  For the most part, the circuits agree that an opinion concurring in the Court's judgment states the narrowest grounds for that judgment if, and only if, it produces the kind of result the Court reached in a completely lesser included subset of the cases the other opinions concurring in the judgment produce that kind of result.  That is to say, to give an example, Justice Sotomayor's opinion in Freeman would state the narrowest grounds for the Freeman judgment if, and only if, every case in which her opinion would deem a C-type sentence to be "based on" the Guidelines (which was the result in Freeman) is a case in which the plurality would deem a C-type sentence to be based on the Guidelines.  

If this is not the case, the argument goes, how can it be categorically said that Justice Sotomayor's opinion is "narrower" than the plurality's?  It might be true, empirically, that it would provide for 3582(c)(2) relief in fewer, indeed in many fewer cases.  But that cannot be proven as a matter of logic if her opinion provides for relief in some cases where the plurality would not.  And more to the point, perhaps, if the plurality wouldn't always agree with Justice Sotomayor's results, and would in some cases oppose relief that she would grant, what is the justification for following her opinion?  The Marks doctrine, its most able lower-court practitioners claim, should identify points of law on which a fractured majority of the Court is implicitly in majority agreement—indeed, points of law that implicitly underwrite the majority's assent to the judgment.

Now, as I say, the Freeman plurality fell short of stating a rule about when C-type sentences are based on the Guidelines, so lower courts were unable to agree on whether the plurality would say that C-type sentences are based on the Guidelines in every case where Justice Sotomayor would.  Most circuits said they would, reasoning that in the plurality's view all C-type sentences were based on the Guidelines.  From that assessment, the conclusion followed that Justice Sotomayor's opinion stated Freeman's narrowest grounds, and bound lower courtsa tremendously important conclusion, because it meant that any C-type-agreeing defendant whose agreement didn't explicitly reference the Guidelines was out of luck. 

But the Ninth and D.C. Circuits ultimately concluded that in at least some hypothetical cases, the plurality wouldn't always deem a C-type sentence based on where Justice Sotomayor would.  From that assessment, the conclusion followed that Justice Sotomayor's opinion didn't state Freeman's singularly narrowest grounds, that indeed no opinion in Freeman did, that no Freeman opinion, therefore, bound lower courts, and that lower courts were free to adopt the plurality's more generous view of based-on C-type sentences—which the Ninth and D.C. Circuits proceeded to do.

Before launching into the parties' arguments about this mess, I should say that the Ninth and D.C. Circuits were probably right.  The clearest hypothetical case where Justice Sotomayor would grant 3582(c)(2) relief and the plurality wouldn't, even on the plurality's murky rule, goes as follows.  A C-type agreement specifies a sentencing range drawn from the Guidelines, and the Guideline from which that sentencing range is drawn is retroactively amended.  The district court accepts the agreement, but not because he agrees with the agreement's Guidelines calculation; he thinks it's wrong and that some other Guideline that isn't subsequently retroactively amended applies.  He nevertheless accepts the agreement because either the other Guideline generates the same range, or because it doesn't but he thinks that a departure from the correct Guideline's range to the range recommended by the agreement is appropriate.  On Justice Sotomayor's view, the sentence is based on the retroactively amended Guideline identified in the agreement; on the plurality's view, the judge's reasoning controls and the judge did not rely on that Guideline.  

Therefore, under Marks as it's traditionally practiced, Freeman does not contain a binding precedential rule (perhaps its result binds, whatever that might mean).  Under that approach to Marks, then, the Court in Hughes should either (a) vacate the Eleventh Circuit, which thought itself bound by Sotomayor's opinion, and remand for the Eleventh Circuit to arrive at a rule of its choosing, or (b) simply decide the merits of Hughes's case under 3582(c)(2), which might or might not result in another fragmented opinion.  (Freeman is only seven years old and only one Justice has left the Court since Freeman, though that Justice, Scalia, dissented and his replacement, Justice Gorsuch, could conceivably join the still-intact four-Justice plurality and provide a majority for its rule.)

The petitioner's position

The petitioner in Hughes is a C-type-sentenced defendant who loses under Justice Sotomayor's rule, though not, it would seem, under the murky standard proposed by the Freeman plurality.  The Eleventh Circuit thought Justice Sotomayor's opinion binding under Marks and therefore ruled that he was ineligible for 3582(c)(2) relief; the petitioner would like the Court to hold that Freeman contains no Marks holding and that the Eleventh Circuit is therefore free to fashion its own, more favorable rule, or to hold that Freeman contains no binding rule and that the Court will adopt the plurality's view.

The petitioner's argument under Marks is broader than that of the circuits that agree with him.  The Ninth and D.C. Circuits thought Sotomayor's rule non-binding because they could imagine cases where her rule would produce favorable results for defendants that the plurality's rule would not, making her rule less than categorically narrower than the plurality's.  The petitioner goes farther; he claims that even if the plurality granted 3582(c)(2) relief in every case where Justice Sotomayor would, Justice Sotomayor's rule would still not bind, because it wouldn't represent a "logical subset" of the plurality's.  For it to represent such a logical subset, her rule, as opposed to the brute results it generates, must have a logical relation of a certain kind to the plurality's.  

For example, if both she and the plurality started from the premise that what a C-type agreement says about the Guidelines is what matters, but she required C-type agreements to identify a Guidelines range and not deviate from it, while the plurality would deem a sentence based on the Guidelines even if the underlying agreement said it started from a Guidelines range but recommended a departure from it, one could say, in the petitioner's view, that her rule was a logical subset of the plurality's; both would share the necessary condition of a Guideline-referring agreement, but she would add a second condition of non-deviation from the Guidelines.

Why should it matter if the rules espoused by opinions concurring in a judgment, as opposed to the results they generate, have a set/subset relationship or not?  One answer might be that unless the rules themselves have some logical relation to each other, we won't know if the results they generate will have a set/subset relation to each other.  We may be able to empirically predict with great confidence that where one rule calls for a certain kind of result, another logically unrelated rule will always call for that kind of result, but unless such outcomes are logically entailed by the rules' relation, we might not be sure of those outcomes; the rules continuing to produce the same results will depend on facts about the world that could change.  But that isn't a very convincing answer in some cases.  If it were true, for example, that the Freeman plurality's rule says that all C-type sentences are based on the Guidelines, it would logically follow that Justice Sotomayor's rule would never find a C-type sentence based on that the plurality wouldn't, even if there is no logical relationship between the two rules.

The better answer is that while a set/subset relationship of two rules' results may allow us to say that the Court would agree that in the cases where, e.g., Justice Sotomayor's rule grants relief, relief is appropriate, it doesn't allow us to say that the Court would agree that because a case satisfies Justice Sotomayor's rule, relief is appropriate.  And this distinction might matter if Marks rests on a theory of implicit majority agreement.  

Consider, for example, a case where some Justices concur in a result on the ground that it's mandated by the Constitution, an unconstitutional statute foreclosing that result notwithstanding, while others concur on the ground that it's mandated by that very statute in some subset of cases that their colleagues say the Constitution requires it.  One could say that in that subset of cases, the majority concurring in the judgment would agree that that result should obtain.  But one could not say that in that subset of cases the Court would agree that under the statute, that result should obtain; some members of the majority would say that the statute, by itself, prohibits that result.  And a lower court will understandably feel shy about saying that a majority of the Court would agree that, in this subset of cases, for no particular reason or logically reconcilable set of reasons, the following result should obtain.  The Court's failure to form anything like an implicit agreement on reasons makes it rather awkward, if Marks is about implicit majority consensus, for the lower court to rely on legal reasoning that some members of the Court's majority thoroughly rejected.

The petitioner, then, would require Justice Sotomayor and the plurality to agree on some subset of conditions for when a C-type sentence is based on the Guidelines in order to deem Justice Sotomayor's opinion binding.  But if they did agree on some subset of conditions, Justice Sotomayor's opinion would be binding even if it added additional, more strenuous conditions for 3582(c)(2) relief that the plurality did not accept—as in the hypothetical above where both opinions require agreements to refer to the Guidelines, but she goes on to require adherence to them.

I think this goes both too far and not far enough.  On the too far, I simply do not understand why shared reasoning is essential, or even relevant, to precedent's having binding effect.  If members of the Court concurring in a judgment are committed to Result X in Set-of-Cases Y for Reason A, and other members of the Court concurring in a judgment are committed to Result X in Set-of-Cases Y for Reason B, I think that lower courts are bound to reach Result X in Set-of-Cases Y for the simple reason that the reasons (Reasons A and B) that were necessary for the members of the majority to concur in the judgment commit the majority to reaching Result X in Set-of-Cases Y, and therefore bind lower courts to do so.  

For example, as then-Professor, now-Sixth Circuit Judge John Rogers wrote some years ago (and as Ryan Williams argued anew in a recent article on Marks), if the Supreme Court (as it did) upholds an exercise of diversity jurisdiction under the diversity statute between a citizen of D.C. and a citizen of a state, some Justices voting to do so on the ground, hotly rejected by their colleagues, that Congress can use its Article I powers to augment the jurisdiction of the federal courts beyond that provided in Article III, others on the ground, hotly rejected by their colleagues, that D.C. and other territories are "states" as the term is used in Article III's provision for diversity jurisdiction, lower courts are bound to uphold the application of the diversity statute to suits between citizens of states and citizens of territories.  The lack of a coherent rationale, even a coherent implicit rationale, for this result is neither here nor there, Judge Rogers argued; a majority of the Court held, for its various logically irreconcilable reasons, that diversity suits between citizens of territories and citizens of states were legal, and lower courts must follow suit.

The excesses of the petitioner's position, however, are nothing compared to its shortcomings.  The petitioner would concede that if only Justice Sotomayor and the plurality shared a logical starting point for conditions on 3582(c)(2) relief, Justice Sotomayor's additional unshared conditions for relief would bind lower courts.  But this makes no sense at all.

The theory of Marks, in most lower courts and commentators' views and certainly in the petitioner's, is implicit majority agreement.  If Justice Sotomayor's rule aligned with the plurality's in the way the petitioner says is necessary, we could say that she and the plurality agreed that in a certain set of cases, for a certain shared substrate of reasons, defendants are eligible for 3582(c)(2) relief.  But the whole reason the petitioner is fighting the application of Justice Sotomayor's rule, and the reason Freeman has posed such a heavily litigated Marks problem, is that outside that set of cases, Justice Sotomayor would deny relief while the plurality would usually grant it—that is to say, outside that set of cases, there is no implicit majority agreement.  

The fact, were it the case, that Justice Sotomayor and the plurality would grant relief in a set of cases for partially shared reasons certainly should compel lower courts, even on the most abstemious view of Marks, to grant relief in that set of cases.  But why does this agreement on results in that set of cases, and some substrate of reasons for those results, mandate adherence to Justice Sotomayor's rule in cases where the plurality would disagree with her results because it doesn't share all of her reasoning?  Why is the petitioner willing to concede that if only Justice Sotomayor and the plurality agreed to grant relief in the cases she would grant relief for roughly similar reasons, the Eleventh Circuit would rightly deny him relief because Justice Sotomayor would, though the other four Justices concurring in the judgment would not? 

The answer is a slippage between kinds of agreement.  Suppose it were true that the majority would agree that 3582(c)(2) relief is deserved in the cases where Justice Sotomayor's rule says it is.  Because we are used to legal rules that state two sides of a coin—rules that tell you when a result of some kind obtains and when it doesn't—we can easily slip into saying that the majority would agree that 3582(c)(2) relief is deserved when Justice Sotomayor's rule says it is and not deserved where her rule says it's not, or more simply, that 3582(c)(2) relief is deserved if, and only if, which we conflate with "if," Justice Sotomayor's rule says so.  

But that is false.  The majority agrees, hypothetically, that defendant winners under Justice Sotomayor's rule are winners.  It doesn't agree, indeed the plurality would vehemently disagree, that the only C-type agreeing defendant winners under 3582(c)(2) are the ones who win under Justice Sotomayor's rule.  All the majority agrees upon, even supposing the petitioner's requirements for Marks-bindingness were met, is that satisfying her rule is a sufficient condition for 3582(c)(2) relief—not, as Justice Sotomayor would contend, that satisfying her rule is necessary.  In a case that flunks her rule but satisfies the plurality's broader rule, there is no implicit majority agreement, only explicit majority disagreement, and to speak of shared "common denominators" and logical subsets that mandate an outcome in such cases is preposterous.  

I have made this argument before at greater length here, and Adam Steinman has recently made the same argument in an essay in the Yale Law Forum.  Steinman writes that a traditional approach to Marks is inapt with respect to "biconditionals:"  rules of the form, "if X, Y result, if not X, no Y result."  In the case of such rules, a broader biconditional may necessarily agree that if X, Y, but won't agree that if not X, no Y.  I would put the point in terms of sufficient and necessary conditions.  If two rules with a set/subset relation to each other only describe sufficient conditions for the Court's result, reserving the question of their necessity, there isn't any problem with doing Marks in the traditional way; all the lower court will say is that the Justices concurring in the broader rule would agree that a narrower set of sufficient conditions is sufficient, which is true—those Justices would agree that they are sufficient conditions for the result, though not exhaustive of sufficient conditions for the result.

Most opinions the Court produces, however, don't say that certain conditions presented by the facts before it are sufficient for the Court's result and that the Court will reserve judgment on cases lacking those conditions until it comes across such a case.  Rather, most of the Court's opinions lay out comprehensive tests that say certain conditions are both sufficient for and necessary to its result.  For example, referring to a specific Guideline is sufficient, in Justice Sotomayor's view, to make a C-type sentence based on that Guideline, but also necessary as well; without such a reference, the sentence following the agreement won't be based on the Guideline.  It is this claim of necessity that the plurality disagrees with; the plurality, at least on most circuits' understandings, would agree that it's sufficient for a C-type sentence to be based on the Guidelines that the agreement references the Guidelines, since the plurality thinks, according to those circuits, that all C-type sentences are based on the Guidelines.  

Where two opinions state, and differ on, necessary conditions for their result, the broader opinion won't agree on the narrower's necessary conditions for the result reached.  Rather, implicit agreement on necessary conditions will be limned by the broader opinion, with the narrower opinion only describing an implicit agreement on sufficient conditions.  For example, if some Justices invalidate a statute of a certain type under intermediate scrutiny, and others under strict, the majority would agree that it's sufficient for unconstitutionality that a statute of that kind fails intermediate scrutiny.  But they would not agree that a statute of that kind must fail intermediate scrutiny to be unconstitutional; rather, they would actually only agree that it must fail strict scrutiny to be unconstitutional.  The sum total of their implicit agreements is that statutes of that kind that fail intermediate scrutiny are unconstitutional, and statutes of that kind that don't fail strict scrutiny are constitutional.  As to statutes, however, that fail strict scrutiny but don't fail intermediate scrutiny, there is no agreement.

The government's position

The government, besides decrying petitioner's insistence on some substrate of reasoning between opinions concurring in the judgment and arguing that agreement on a subset of results suffices to make an opinion describing that subset bind, primarily argues that Justice Sotomayor's opinion is binding because the Freeman dissent agrees with its negative results.  There are a couple versions of the argument.  

The more ambitious one goes that Justice Sotomayor's opinion is binding because in the cases where she would grant relief, the four-Justice plurality would (because it always would), and in the cases where she wouldn't, the four-Justice dissent wouldn't (because it always wouldn't).  Thus, any result called for by Justice Sotomayor's opinion is supported by five Justices who participated in Freeman.  Less ambitiously, the government says that whether or not it's so that the plurality would grant relief whenever Justice Sotomayor would, the dissent would certainly deny relief whenever she would.  As this is a case where she would deny relief, this is a case where five Freeman Justices, including dissenters, living and deceased, would deny relief.  That agreement of five Freeman Justices on how to decide this case, the government claims, is binding on lower courts.

This approach certainly addresses the defect I've pointed out in even the petitioner's demanding version of classical Marks doctrine:  that just because the Freeman majority would grant relief where Justice Sotomayor would doesn't mean, no matter the harmoniousness of their reasons, that it would deny relief where she would.  To this problem, the government has a ready response: the dissenters, who with Justice Sotomayor add up to five Justices, would deny relief where she would.  But so what?

The government is unable to offer a persuasive reason for treating the views of dissenters as binding, because there isn't one.  We could say that dissenters' views predict what the Court would do with a case before the lower courts.  But that ceases to be true the instant that the dissenters leave the Court, as one of the Freeman dissenters already has.  Besides, the Court doesn't believe that precedent consists of those rules that lower courts can predict the Court would follow if it granted cert in the case before a lower court.  If it did, lower courts would be free to predict, on the basis of persuasive evidence in the form of dissents, concurring opinions, statements respecting certiorari, suggestive dicta, and so forth, that the Court will overrule one of its precedents.  The Court, however, has been very adamant about lower courts not doing that sort of thing.

One might next argue that dissents are binding on a theory that a case before the Supreme Court is just a caucus on legal rules; legal rules espoused by a majority of the Court are binding.  But that simply isn't what a case before the Supreme Court is.  The Court chooses to vote on the judgment, not on rules, with the result that on occasion a judgment will issue that is inconsistent with rules that majorities of the Court endorse.  

For example, in Tidewater, discussed above, a majority of the Court, dissenters included, agreed that Congress had no Article I power to augment federal jurisdiction, and a different majority of the Court, dissenters included, agreed that territories weren't states for Article III purposes.  If both of those rules of law are right, you can't get to the result the Court reached:  upholding an exercise of diversity jurisdiction between a citizen of D.C. and a citizen of a state.  But the Court did get to that result, because a majority of the Court voted to get to it, some on the majority-rejected Article I ground, others on the majority-rejected territories ground.  If cases were caucuses on legal rules, the Court would actually caucus on legal rules; first rejecting one ground to uphold jurisdiction by a majority vote, and then another, the Court would have concluded there was no jurisdiction under the rules it had voted to adopt.  

That isn't, however, how the game works, and because it isn't, the Court can reach results that are inconsistent with rules that majorities of the Court, including dissenters, accept.  If the legal views of majorities that include dissenters were binding, it would follow that lower courts would be bound to reject diversity jurisdiction where the Court upheld it in Tidewater, as they would be bound to deem D.C. a non-state for Article III purposes and reject Article I arguments to uphold applications of diversity jurisdiction to the territories.  Still more absurdly, the Court itself would be bound by the precedential rules of Tidewater to overrule Tidewater's result. 

Besides the logical inconsistency of treating dissenters' views as binding with how the Court votes, once one rejects a predictive rationale for treating dissenters as binding there isn't any good rationale left.  Obviously one cannot say that dissents are reasons for the Court's judgments; that's just what they're not.  One might argue that whether or not a Justice is giving reasons for the Court's results, that Justice will be better-briefed and smarter than lower-court judges, and that lower-court judges ought to defer to what he says, so long as a majority of the Court agrees with him.  This is certainly a fair argument for giving some deference, or assigning some persuasive weight, to the views of a majority of dissenters and concurring Justices; it isn't, though, a remotely compelling argument for treating those views as binding.  

What five Justices, four of them dissenters, said about the law in 1960 may not be terribly persuasive today, by which time the way we read statutes or the Constitution or think about the substantive area of law in question either has or will likely have changed quite a bit.  Likewise, what five Justices, four of them dissenters, said about the law in 2011 might not be very persuasive fifty years from now.  Even if Supreme Court Justices were categorically smarter in some absolute sense than lower-court judges, which is obviously not the case, though it may well be true on average, the views of, for example, Justices Brennan, Marshall, Goldberg, Fortas and Warren on a question of statutory interpretation are likely to be less instructive to us today than the views of Judge Easterbrook on the same question.   It's very hard to see, absent their authoring a judgment on the basis of those views, why we would treat their views as binding.

Finally, there is something bizarrely arbitrary about counting up dissenters and their colleagues until you reach five, as if they had a meaningful majority for anything but their separately scattered thoughts.  To count dissenters' noses and say that some result is compelled because if a case were presented to those dissenters, four of them plus some concurring colleague would reach it, confuses persuasion and the quantity of it with the Court's voting rules on judgments, which only apply to its votes on judgments and are never applied to votes on legal rules (which simply aren't taken).  It is rather like saying, if you believe in legislative history, that the views of Senators who vote against a bill are controlling legislative history about what it means, but only if sixty Senators, enough to defeat a filibuster, state those views, forty of them in their critique of the bill, the other twenty in support of its passage (with the other forty who actually voted for the bill understanding it differently altogether).  That is a hopelessly confused view of the world, as is a view of precedent that treats as binding the thoughts of dissenters once you count to five.

The heavyweight academic amici

Finally, there are two academic amicus briefs of note, the first principally authored by Maxwell Stearns, and the second solely authored by Richard Re.  The Stearns brief defends traditional Marks analysis, more or less, on grounds external to traditional Marks doctrine, while Re's brief would abandon Marks, and any pretense of being bound by areas of shared majority agreement in fractured opinions, altogether.

Stearns's theory of Marks is that a Marks holding is a Condorcet winner:  the opinion that would knock off the others in pairwise comparisons, the dominant second choice, or the opinion that everyone (besides the Justices who already joined it) would join if forced to abandon their own views.  Justice Sotomayor's opinion in Freeman is binding because the plurality would prefer it to the dissent, and the dissent would prefer it to the plurality; thus, a majority would prefer it over any other opinion in the case, and everyone besides Justice Sotomayor would join it if forced to abandon their more categorical position and pick one of the positions left.  

How Stearns knows this, and other things he purports to know about fractured opinions, is unclear; the assumption seems to be that if a Justice wants a lot of some sort of result (3582(c)(2) relief, the denial of 3582(c)(2) relief), he'll always prefer more of it to less of it, even if he thinks the reasons his colleagues have for calling for more of it rather than less of it arbitrarily select which parties get more.  Both the Freeman plurality and the Freeman dissent denounced Justice Sotomayor's opinion as something of a random results generator; it isn't entirely obvious that the plurality or dissent would prefer it to their colleagues' more (in their view) cogent reasoning because it would produce more of the result they like.  Indeed, aside from their own reasoning calling for it, which they can't have in Stearns's thought experiment of a Court forced to abandon its first choices, it isn't entirely obvious that they "like" the sort of result they tend to arrive it.  Maybe the Freeman dissenters would love to see more 3582(c)(2) relief, simply thought the statute forbade it for C-type agreeing defendants, and would prefer, both on normative and interpretive grounds, a relatively cogent reading of the statute that grants it all the time to one that arbitrarily denies it some of the time.

In any case, the fact, if one could show it was a fact, that an opinion is the Court's dominant second choice strikes me as a cosmic irrelevancy to that opinion's precedential effect.  Besides simply not understanding what a Justice's hypothetically preferring reasoning he didn't give for his vote on a judgment to some other reasoning he didn't give for his vote has to do with the former reasoning binding a lower court, it is critical to note that an opinion can only be deemed the Court's Condorcet winner or dominant second choice once we start counting the non-binding hypothetical preferences of dissenters.  

To show this, suppose we ask, disregarding the dissenters, what the dominant second choice of the Freeman majority was.  We'll be at an impasse; we may find that among those five Justices, Justice Sotomayor's rule would beat the dissent's, but it won't of course beat the plurality's, who preferred theirs.  Figuring out which rule, besides her own, Justice Sotomayor would prefer if forced to choose will also be a perplexity.  Only when we count the dissenters can we say that Justice Sotomayor's rule "defeats" the plurality's, because only then can we find five votes that (assuming a great deal) would prefer her rule to the plurality's.  But for all the reasons that it made no sense to treat the actually articulated views of dissenters as binding, it makes no sense to treat the hypothetical second-order preferences of dissenters as binding.

Finally we come to Re's brief, which is an adaptation of his excellent forthcoming Harvard Law Review article.  First, a recapitulation of my position, which Re's article addresses under the heading of shared agreement and rejects.  As outlined above in my comments on petitioner's position, I would contend that Marks goes too far in treating as binding the necessary conditions of comprehensive tests whose sufficient conditions a majority implicitly agrees are sufficient.  What is binding in a fragmented decision with rivaling comprehensive tests supporting the judgment is just those tests' implicit agreement on a subset of sufficient conditions.  

In the case of Freeman, the plurality and Justice Sotomayor agree that it is sufficient for a C-type sentence to be based on the Guidelines that the underlying agreement references the Guidelines, at least so long as the court accepting the sentence also bases its acceptance on the Guidelines in some obscure way.  On the generally prevailing reading of the plurality, the majority agrees that it's sufficient for a C-type sentence to be based on the Guidelines that it meets Justice Sotomayor's test, with no extra strings emanating from the plurality.  In other words, the majority agrees that if a defendant wins under Justice Sotomayor's test, and, perhaps (or perhaps not), meets some murky plurality caveats, he wins.  I say that that agreement is binding.  What is not binding is Justice Sotomayor's view that a C-type-agreeing defendant must satisfy her test to obtain 3582(c)(2) relief; that claim about necessity is not a subject of majority agreement.

Re would say that this is all wrong.  Even if it were true, he contends, that the plurality is committed for its reasons to 3582(c)(2) relief in all cases of C-type agreement, it does not follow that they are committed to relief in the subset of such cases delineated by Justice Sotomayor's opinion.  How can that be, if they say that the statute requires relief in all C-type cases?  Re says that it can be because the plurality could take such issue with the line Justice Sotomayor draws that they would rather no relief be awarded in such cases than relief be awarded along the lines Justice Sotomayor proposed.  Indeed, even if, as I (and Ryan Williams, and I think Adam Steinman) contend, lower courts were only bound to follow Justice Sotomayor's rule in the sense that they would have to grant relief where she would and remained free to consider granting relief where she wouldn't, Re would say that even the mandatory use of her rule as a sufficient condition for relief might so offend the plurality that they would prefer the dissent's rule to this limited use of Justice Sotomayor's.

This seems paradoxical; again, if a Justice believes that 3582(c)(2) relief is allowed in all C-type cases, how can he say that lower courts should afford it in none rather than grant it in at least the cases called for by Justice Sotomayor's rule?  Re is actually right that a view of this kind is logically possible.  Suppose, for example, that a Justice believed the distinctions drawn by her rule's insistence on an agreement's reference to the Guidelines were so arbitrary and unfair as to be unconstitutional.  He would prefer that no relief, retroactive sentencing relief after all not being constitutionally required, be granted than relief be granted on the basis of her unconstitutional distinctions.  

Or suppose, as was actually the case, that the plurality didn't think her rule was unconstitutional, but did think it was terribly arbitrary.   And then suppose that the plurality believes it better to interpret a statute in a non-arbitrary though categorically incorrect way, as a first-order matter of what the statute textually means, than to interpret a statute in a terribly arbitrary way that gets some cases right, as a first-order matter—indeed, thinks that interpreting a statute to arbitrarily get some cases right as a textual matter gets all cases wrong in a more important sense than mere textual wrongness.  They could then prefer the dissent to Justice Sotomayor's rule, and believe that lower courts would be mistaken in granting relief in at least the cases where her rule calls for relief.

Very well; such preferences, belying Justices' seeming logical commitments to results, are conceptually possible.  But having acknowledged that they are, we then must ask a question.  If a member of the Freeman plurality felt that way about Justice Sotomayor's rule, why would he concur in a judgment that hinged on a vote grounded on that rule?  That may sound like a curious question.  The plurality did it, of course, because they thought the law required them to vote to rule that Freeman was eligible for 3582(c)(2) relief, the law stating, in their view, that all or just about all C-type-agreeing defendants are.  Justice Sotomayor's wrongheaded rule had nothing to do with their vote.  

That doesn't, though, answer the question.  If making decisions on the basis of her rule were in their view so arbitrary and unjust, why would they allow a judgment of the Court to rest on her rule's arbitrary distinctions?  The reason Freeman won was because Justice Sotomayor drew those distinctions in his favor; absent her vote, he would lose.  If it is worse for defendants to win because a judge draws those arbitrary distinctions in their favor than for C-type defendants to universally lose under 3582(c)(2), why did they let Freeman win on account of a judge, Justice Sotomayor, drawing those distinctions?  They could have stopped it by voting against Freeman.

That might sound like a rather metaphysical argument about the meaning of the plurality's very ordinary behavior, but I don't think it is.  First, consider that Re's argument relies on hypotheticals about opponents to the death penalty concurring in a judgment reversing an execution with colleagues who concur on the ground that Christians cannot be executed.  It is easy to see that a Justice who believes the death penalty is unconstitutional could also believe that it is better to permit the death penalty universally than for courts to ban it for, at least, Christians; that's the force of the hypothetical.  

But it is also easy to see that a Justice who claimed to have those beliefs would be acting rather hypocritically if he concurred in a judgment reversing an execution where the necessary votes for the judgment were cast by Justices who reasoned that the death penalty was unconstitutional for Christians.  He might claim to prefer executions to judicial religious discrimination, yet given a choice between preventing dispositive judicial discrimination and allowing an execution on the one hand, and stopping an execution but allowing dispositive judicial discrimination to occur at the judiciary's highest level on the other, he chose the latter.  I think we could fairly conclude that such a Justice preferred to save all the people from execution he could to preventing judicial discrimination.  His vote would prove that he preferred the narrower discriminatory rule of his colleague to the dissent's categorical license to execute, since by his vote he allowed that narrower rule to operate, even if only in that one case.

Second, whether or not the Marks rule is right as an original matter, Justices cast votes under its shadow.  There are many signs in Freeman itself—the plurality's description of Justice Sotomayor's rule as an "intermediate" position, the fact that both the plurality and dissent devoted great energies to attacking it, as if they were dissenting from her rule, the plurality's lack of care about describing its rule, Justice Sotomayor's greater precision in describing hers—that the Court anticipated lower courts would treat her rule as binding.  Besides, then, allowing Justice Sotomayor to draw arbitrary distinctions in Freeman's favor, the plurality behaved in a way that foreseeably caused lower courts to draw those same distinctions in thousands of cases.  If they thought the dissent's rule better than those distinctions, why didn't they give the dissent's rule a majority?

Third, even if we might suppose that a plurality that viewed Justice Sotomayor's rule as unacceptably arbitrary could nevertheless stomach its application to Freeman in the single case of Freeman, the plurality would not, if it preferred the dissent's rule to hers, continue to vote its rule in future cases.  That is to say, if Freeman sequels came to the Court, each Justice voting his position in Freeman, a pattern of judgments would emerge where defendants that satisfied Justice Sotomayor's rule would win and ones that didn't satisfy her rule would lose.  The plurality, by hypothesis, would prefer that no defendants win than a subset of defendants identified by Justice Sotomayor's rule to win.  But to make that preference a reality, they would have to switch their votes and join the Freeman dissent.  Otherwise, Justice Sotomayor's swing vote and swing reasoning would continue to dictate outcomes.

What that means, though, is that for the Freeman plurality to have the preferences Re hypothesizes it could have, the Freeman plurality would have to be willing to change its votes in identical iterations of Freeman.  When someone came along who, just like Freeman, was fortunate enough to mention a Guideline in his plea agreement, the plurality would have to switch positions so that the Court didn't continue to arbitrarily select defendants similarly situated to Freeman for favor.  But shouldn't we assume, when interpreting a precedent, that Justices would not change their votes in identical iterations of that precedent?  Re's doubt that the Freeman plurality is committed to Justice Sotomayor's subset of their results over the dissent entails doubt about whether they would maintain their Freeman positions in like cases.  

Yet doubting whether Justices concurring in a precedent case's judgment would continue to vote their positions in like cases cannot be a proper grounds for determining that precedent case's precedential effect.  We must assume, when reading precedent, that the Justices concurring in it would continue to adhere to it; otherwise, we are free to doubt the precedential effect of any precedent.  Re's argument subtly, but unmistakably, depends on doubt not only of whether Justices are necessarily committed to seeming logical subsets of their views, but whether they are committed to their own views.  But that is just the questioning of precedent simpliciter.