Judge Kavanaugh's Curious Behavior in Garza

Before I properly begin this post, I'll start with a summary so that people know why they're reading it.

(1) In Garza v. Hargan—the detained minor immigrant abortion case in which Judge Kavanaugh initially ruled, before being vacated en banc, that the government had eleven days to help a detained minor immigrant find a sponsor before potentially having to temporarily release her from detention without a sponsor to get an abortion—Judge Kavanaugh declined to adopt a much broader anti-abortion argument that the government made.

(2) That argument was that even if the minor didn't find a sponsor to take her out of custody, the government would not unduly burden whatever abortion rights she had by barring her from getting an abortion so long as she refused to voluntarily depart the country, and that in any event, compelling the government to release her from detention to get an abortion would unlawfully force the government to facilitate or be complicit in abortion.  

(3)  That argument was the government's primary argument.  The argument Judge Kavanaugh adopted was an argument the government weakly advocated in its opening brief, never mentioned in its reply brief, and actually resisted at oral argument.

(4) At oral argument, Judge Kavanaugh completely understood the government's arguments and their priority, was obviously and deeply skeptical of the government's primary argument, and spent most of the oral argument attempting to talk the government into satisfying itself with a much narrower position it didn't want to settle for.

(5) Later that day, Judge Kavanaugh wrote an order, and several days later, wrote a dissent, in which he never mentioned the government's real position and all but denied that the government had taken the position it had taken—thereby avoiding the appearance of rejecting a broader anti-abortion position than the narrow one he was willing to accept.

With that said, I'll start this post with a personal anecdote.  Some years ago, the summer Judge Jeffrey Sutton and a Sixth Circuit panel were deciding a challenge to the Affordable Care Act's individual mandate, I befriended a number of liberal Sixth Circuit clerks.  On a balkanized court like the Sixth Circuit of, say, 2002–14, there can be a fair amount of distrust of judges across the aisle, at least on the part of staff if not the judges themselves.  And in those days, Judge Sutton was perhaps the preeminent candidate for a Supreme Court vacancy should President Obama lose reelection and a vacancy open up during his replacement's administration.  (At the time, my dark horse for the next appointment, which I was convinced would be made by Rick Perry, was recently outgoing Texas Solicitor General Ted Cruz.)

In this environment, and given Judge Sutton's excellent chances at elevation, at least a couple of my friends were convinced that Judge Sutton would find some way to avoid opining on the merits of the challenge to the mandate.  In that world, when the Democrats still held the Senate and would still have been able to filibuster a nominee if they lost it, the argument went that supporting the mandate might cost him the nomination (though there was still some hope that the Supreme Court would deem the challenge to the mandate so fringy that a Republican President wouldn't fault him for it), but opposing the mandate would certainly cost him confirmation.  

My friends were quite shocked, then, when Judge Sutton opined at great length that the mandate was constitutional—so shocked, in fact, that they initially insisted he really had ducked the merits by only holding that the plaintiffs' facial challenge failed because the mandate could be sustained in at least some applications, e.g., applications to people subject to state insurance mandates.  Which was all he held, but his dicta left no doubt that he rejected the activity/inactivity distinction at the heart of the challengers' argument, and were probably the most devastating critique of that distinction that any judge or lawyer put to paper during the entirety of the litigation.  

As persuasive as those dicta were, however, they failed to persuade Judge Sutton's former boss, Justice Scalia, or Justice Thomas, or Justice Alito, or Justice Kennedy, or even Chief Justice Roberts, who—never let it be forgotten!—completely embraced the activity/inactivity distinction and opined that a purchase mandate would have been unconstitutional had Congress enacted one.  (To be fair, maybe that's because the opinion was written almost entirely in rhetorical questions—seriously, there are twenty-five of them—and sentences that began with "how strange" or "is it not strange.")  So it was that Judge Sutton's eloquent (if rhetorically unconventional) rejection of what once seemed a fringe theory became conservative apostasy, and so it is that today Judge Sutton is less of a Supreme Court contender than a junior member of his own court who has written exactly zero published opinions since her confirmation eight months ago.

Of course, one Republican contender for elevation to the Supreme Court did exactly what my friends predicted Judge Sutton would do.  That would be Judge Kavanaugh, who avoided the merits in Seven-Sky v. Holder by voting to hold sua sponte that his court was ousted of jurisdiction by the Tax Injunction Act, a statute of rather dubious jurisdictional status (i.e., the Supreme Court had previously held the government could waive it) that was triggered, according to Judge Kavanaugh, by an obscure provision of the Internal Revenue Code that the attorney representing the government admitted at oral argument she hadn't even read.  (Judge Kavanaugh's dissent would cite this unbriefed provision thirty-five times.  That's ten more times than the number of times Judge Sutton would carpet-bomb his chances at elevation with pithy rhetorical questions like "If Congress may engage in the same type of compelling/conscripting/commandeering of individuals to buy products under the taxing power, is it not strange that only the broadest of congressional powers carves out a limit on this same type of regulation?")

It is possible—I don't even think it that unlikely—that along with Fourth Circuit Judges Diana Motz and James Wynn, the amicus the Supreme Court appointed to defend the position after the government adamantly disavowed it at considerable risk to its Taxing Clause defense, four tax professor amici and their counsel, two former IRS Commisioner amici and their counsel, and seemingly no other judge or lawyer in America, Judge Kavanaugh sincerely both believed that the Tax Injunction Act was jurisdictional and that it deprived him of jurisdiction.  After all, as it's turned out (though no one could have predicted this in 2011), between the 2014 election of a Republican Senate majority, the abolition of the filibuster for Supreme Court nominees, and the unexpectedly smashing success of the arguments against the individual mandate at the Supreme Court, Judge Kavanaugh's chances of Supreme Court nomination would be much higher today had he voted to reach the merits and invalidate the mandate.  At the time, though, Judge Kavanaugh's vote in Seven-Sky seemed like the cleverer contemporary equivalent of the time Justice Thomas told the Senate Judiciary Committee that he couldn't recall ever having expressed an opinion about Roe in a conversation with anyone.

Besides taking a fair amount of heat for not voting to strike the mandate down (although nowhere close to the disqualifying degree of heat Judge Sutton took for actually voting to uphold it), Judge Kavanaugh's presently being criticized in some circles for not taking enough of an anti-abortion-rights position in Garza v. Hargan.  In Garza, the Trump adminstration's Office of Refugee Resettlement refused to let an unlawful immigrant minor (Doe) in government detention out of detention to get an abortion. The district court ordered the government to let her out immediately.  Judge Kavanaugh, in what could have been a devastating blow to his nomination chances, was assigned to the panel hearing the appeal and forced to opine on its hot-button merits.

In a feat of Solomonic justice, Judge Kavanaugh crafted an order giving the government eleven days to wait for a sponsor to materialize who could take Doe out of detention and then take her to get an abortion, thereby absolving the government of any complicity in the matter.  Judge Kavanaugh's nominally per curiam order (nominally so because one member of the panel dissented and another, Judge Henderson, indicated her intention to concur on separate grounds) was summarily vacated en banc.  Judge Kavanaugh then dissented, elaborating on the reasoning that underlied his order; Judge Henderson separately dissented, writing that illegal aliens detained at the border had no abortion rights at all; and some people are now mad at Judge Kavanaugh because he didn't join her dissent and think the President should nominate someone else to the Kennedy vacancy because he didn't.

In defense of Judge Kavanaugh, some conservative lawyers have written that the government assumed Judge Henderson's position away (true), that it was unnecessary to decide whether detained illegal aliens had abortion rights in order to decide whether it unduly burdened Doe's putative rights to make her wait an additional eleven days to get an abortion (also true), and that Judge Henderson's dissent had nothing to do with abortion in particular, just the constitutional rights of illegal aliens generally (also true, though it's hardly as if this White House is disinterested in judicial nominees' position on the constitutional rights of illegal aliens generally).  So, Kavanaugh's defenders reason, what is the anti-Roe objection to Kavanaugh's behavior in Garza?

The answer to that question, I think, is very simple.  It's that Judge Kavanaugh (1) declined to endorse the much broader anti-abortion position the government did take, which was, unlike Judge Henderson's position on aliens, a specifically anti-abortion position, (2) cast doubt on that position in oral argument and, more subtly, in his en banc dissent, and (3) deftly avoided opining on the government's intensely controversial main argument, or even calling attention to his declining to opine on it, by not only neglecting to acknowledge in his order and dissent that it had been made, but all but denying that the government had made it.  

I am not the one, as the kids say, to hold (1) and (2) against Judge Kavanaugh; I happen to think that, given what the government did concede, the government's position was near-frivolously wrong under what Judge Kavanaugh pointedly referred to five times in his dissent as "existing Supreme Court precedent," and believe lower-court judges should follow Supreme Court precedent (especially the existing kind).  I am the one, however, to take issue with (3), which puts me in mind of Judge Kavanaugh's behavior in Seven-Sky.  And though I don't think that people should be faulting Judge Kavanaugh for failing to endorse cockamamie misreadings of precedents they don't like, the vast contingent of conservative lawyers who do believe in creatively misreading abortion precedent should know that Judge Kavanaugh hasn't displayed a propensity to do so—even though creatively misreading Supreme Court precedent might be his most singular trait.

With that said, what did the government really argue in Garza?  Judge Kavanaugh admirably answered that question about thirty seconds into oral argument:

JUDGE KAVANAUGH: So you seem to have three differential strands of arguments, if I could set them as I see them.  One is the facilitation argument, you don't want to be facilitating the abortion. Second, is that it's not an undue burden because she can return to her home country.  And the third is that it's not a undue burden because she could be released to a sponsor. 

That's exactly right, and correctly ranks the arguments in order of the weight the government placed on them.  To be precise, the government argued in its opening brief before the panel (technically a motion for stay pending appeal) that refusing to facilitate abortion did not unduly burden the abortion right as a matter of law; that the government would facilitate Doe's abortion by allowing her to temporarily leave its custody to get an abortion; and that it was not unduly burdening her right to obtain an abortion because her inability to get an abortion while in detention was a problem of her own making, as she could terminate her detention by voluntarily departing the country she'd illegally entered and caused to detain her, or, were she successful, by getting a sponsor.  

Since it was far from obvious that Doe would get a sponsor in time to get a legal abortion in Texas, where she was detained, and since getting one wasn't in Doe's control, the government naturally put vastly more weight on the first of her "two avenues to leave federal custody," as it called them.  Indeed, the government's short reply brief had as much to say about Doe's sponsorship possibilities as the government had to say in Seven-Sky about the provision of the Internal Revenue Code on which Judge Kavanaugh based his preferred jurisdictional holding:  that is, literally nothing.  

Instead, the reply argued that Doe had no right to obtain an abortion in her present position "because Ms. Doe is currently in HHS custody, and chooses to remain so rather than file a request to voluntarily depart the United States," that Doe was unlike federal prisoners that courts had held have rights to obtain abortions while in prison because, unlike prisoners, "Ms. Doe may elect to terminate her federal custody by filing a request for voluntary departure from the United States," and that "even if she is put to a difficult choice of choosing between leaving [sic; staying in] the United States and the ability to seek an abortion, that choice does not constitute an 'undue burden' that the federal government has placed in Ms. Doe's path."  It's little wonder, then, that a moment after summarizing the government's arguments, Judge Kavanaugh complained that "we're being pushed in a span of 24 hours to make a sweeping constitutional ruling in one direction or another," and suggested that "the sponsor option" might be "[an]other avenue[] to resolving [the] dispute short of that . . . that would solve the Government's objection."  

But even when Judge Kavanaugh signaled he was willing to give the government a limited win on the "sponsor option," the government showed little to no interest in taking it.  The government's attorney initially conceded that "yes, if it could happen that would resolve the case," but noted that attempts to find Doe a sponsor thus far had been unsuccessful.  When Judge Kavanaugh continued to insist that "that option . . . is an option that solves her problem, it solves the issue, hasn't been explored," the government replied that "it's one that I would think if it was an option [emphasis in audio, see 4:08] that plaintiffs would have raised to identify to help [find a sponsor.]"  And when Judge Millett pushed back on Judge Kavanaugh's sponsorship solution, remarking that she assumed Doe had done everything she could to find a sponsor and had no control over whether she'd get one, the government, rather than attacking Millett's premise or defending sponsorship as a realistic out for the court, confidently replied that "voluntary departure is entirely within [Doe's] control," and that "[s]he can file a request for voluntary departure at any time and then she will be out of HHS custody."

As Marty Lederman's written, Judge Kavanaugh repeatedly signaled at oral argument that he didn't buy this argument.  At one point he skeptically asked the government if Texas could pass a law banning women who were in the country unlawfully from getting abortions "[o]n the theory that [they] can return to the home country"; at another point, he said that the government's assumption that Doe had abortion rights at all "does make it hard . . . for you [to] turn around and say 'yes, assume she has constitutional rights, but also leaving the country is an option,'" because "normally the answer to someone who has constitutional rights is not 'oh we can deny them, just leave the country.'"  

The answer to this seemingly devastating line of questioning is that, bizarrely enough, while the government was willing to assume Doe had a constitutional right to obtain an abortion, it did not assume or accept that she and other detained unlawful immigrants had the right to obtain an abortion in the United States.  Rather, the government's position was that it could bar her and other detained illegal immigrants from getting an abortion in the United States (the government certainly never conceded or assumed that it was constitutionally required to release her to a sponsor); all that it couldn't do was prevent her from voluntarily departing and attempting to get an abortion somewhere else.  

Though the government's position can't be understood any other way, Judge Kavanaugh would repeatedly assert in both his order and dissent that the government not only assumed Doe had a right to obtain an abortion, but assumed she had a right to obtain an abortion in the United States.  So I want to belabor why that's patently incorrect for a bit before coming to what Judge Kavanaugh said about it.  

It's true that the government never explicitly said that Doe only had a right to get an abortion in her home country (though it's also true that the government never intimated that she had a right to obtain an abortion in the United States).  Rather, what the government repeatedly said is that Doe's inability to obtain an abortion while in federal custody wasn't a government-imposed obstacle, but an obstacle she imposed on herself by staying in this country.  As the government put it in its opposition to Doe's en banc petition:

In other words, any alleged “obstacle” to Ms. Doe’s ability to obtain an abortion is by her own choice: she is in federal custody because she entered the United States illegally, and that custody is what she contends is blocking her ability to obtain an abortion. But Ms. Doe may elect voluntary departure to end her federal custody, which would eliminate the alleged “restriction” or “obstacle” of which she complains.

To say, though, that an illegal immigrant's choosing to immigrate to a country that forbids her from getting an abortion (as the United States forbade Doe from getting an abortion so long as she couldn't get a sponsor) is a "self-imposed obstacle" to getting an abortion assumes that the relevant baseline against which to measure government-imposed obstacles is, as the government crisply described it at page 17 of its opening brief, the "position she would have been in had she not illegally entered the United States."  (Similarly, the Court has held, in precedent that the government relied on, that blocking public hospitals from performing abortions doesn't unduly burden abortion rights because it merely puts women in the same position they'd have been if there were no public hospitals.)  But that is just to say that people in Doe's position only have a right to abortion under U.S. law to the limited extent that the government cannot block them from leaving the country and exercising whatever abortion rights they have elsewhere.  

To see this, suppose Houston argued that it could constitutionally ban non-residents from getting an abortion in Houston because the choice to run up against Houston's ban on non-resident abortions instead of going to Austin is merely a self-imposed obstacle to getting an abortion.  That argument might make quite a bit of sense.  But it assumes that the relevant baseline for assessing whether Houston unduly burdens a non-Houstonian's abortion rights is the position she would have been in had she not come to Houston.  That too might make sense, but Houston couldn't logically take that position and concede that non-Houstonians had a constitutional right to get an abortion in Houston, or against Houston-imposed obstacles to getting an abortion in Houston.  A ban on non-residents getting abortions in Houston is undeniably a Houston-imposed obstacle to getting an abortion in Houston.  Rather, Houston would have to be taking the position that non-Houstonians only have a constitutional right against Houston blocking them from getting an abortion anywhere at all, as it would if it jailed a pregnant non-Houstonian and refused to release her to get an abortion.

Perhaps there is some metaphysical sense in which it can both be true that (a) unlawful immigrant detainees have a constitutional right to obtain an abortion in the United States, and (b) the United States may constitutionally bar them from getting an abortion in the United States and force them to depart the United States to get an abortion.  I don't see one.  But in any event, to state in an opinion that the government assumed Doe and detainees like her had a right to obtain an abortion in the United States is both false in at least the sense that the government never positively assumed that much, and somewhere between extremely misleading and false in the stronger sense that the government probably should be understood to have taken the opposite position.

With that said, I find the following statements by Judge Kavanaugh rather puzzling.  First, later in the day he heard oral argument, at which time he perfectly understood that the government was arguing that it didn't violate whatever abortion rights Doe had to make her voluntarily depart the country to get an abortion, Judge Kavanaugh ended his per curiam order in this way: "We note that the Government has assumed, for purposes of this case, that J.D. – an unlawful immigrant who apparently was detained shortly after unlawfully crossing the border into the United States – possesses a constitutional right to obtain an abortion in the United States."  That assumption was never made; if anything, the government argued just the opposite.

Second, even after the government, in its opposition to en banc review, solely defended the panel's sponsorship-focused ruling on the ground that the government hadn't infringed Doe's assumed right to an abortion by forcing her to voluntarily depart the country to get one, see pages 8–12, Judge Kavanaugh continued to rather volubly insist that the government had assumed that Doe and similarly situated unlawful detained immigrants had a right to obtain an abortion in the United States:

All parties have assumed for purposes of this case, moreover, that Jane Doe has a right under Supreme Court precedent to obtain an abortion in the United States.  One question before the en banc Court at this point is whether the U.S. Government may expeditiously transfer Jane Doe to an immigration sponsor before she makes the decision to have an abortion.  Is that an undue burden on the abortion right, or not? 

. . .  

First, the Government has assumed, presumably based on its reading of Supreme Court precedent, that an unlawful immigrant minor such as Jane Doe who is in Government custody has a right to an abortion. The Government has also expressly assumed, again presumably based on its reading of Supreme Court precedent, that the Government lacks authority to block Jane Doe from obtaining an abortion. For purposes of this case, all parties have assumed, in other words, that unlawful immigrant minors such as Jane Doe have a right under Supreme Court precedent to obtain an abortion in the United States.

Third, in addition to never writing a word about the government's main argument for reversing the district court's TRO and giving ten pages of arguments for reversing it that the government either only weakly advocated or never* made (which can hardly be deemed an exercise in restraint, as his defenders of his handling of this case would claim), Judge Kavanaugh went so far as to suggest uncertainty about what the government might argue in the event that Doe didn't get a sponsor in his vacated order's eleven-day time-frame.  "[I]f no sponsor is expeditiously located," he wrote, "then it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, depending on what arguments the Government can make at that point."  What arguments the government can make at that point?  How about practically the only ones it ever did make:  that making Doe leave the country to attempt to get an abortion did not violate whatever abortion rights she had, and that releasing Doe to get an abortion would force the government to facilitate abortion, which the court could not compel it to do.

* In the department of arguments the government really never made, Judge Kavanaugh claimed the government was "merely seeking to place the minor in a better place when deciding whether to have an abortion" by insisting she pursue sponsorship before getting an abortion, when the government barely advocated the sponsorship option and the only interests it asserted in its policy were promoting fetal life and avoiding complicity in abortion.  Not only wasn't the government "seeking to place the minor in a better place," it definitely wasn't "merely" seeking to place her in a better place; its reasons for insisting she get a sponsor or leave the country before she could get an abortion had everything to do with its not wanting her to get one.

Finally, careful to only decide the artificially narrowed case before him rather than the intensely controversial case the parties actually argued, Judge Kavanaugh reserved judgment on what would happen if a sponsor were not found by October 31, one week from the day he was writing, only lightly hinting at how he might rule then:

[I]f transfer does not work, given existing Supreme Court precedent and the position the Government has so far advanced in this litigation, it could turn out that the Government will be required by existing Supreme Court precedent to allow the abortion, even though the minor at that point would still be residing in a U.S. Government detention facility.  If so, the Government would be in a similar position as it is in with adult women prisoners in federal prison and with adult women unlawful immigrants in U.S. Government custody.  The U.S. Government allows women in those circumstances to obtain an abortion.  In any event, we can immediately consider any additional arguments from the Government if and when transfer to a sponsor is unsuccessful.

Besides the implicit skepticism of the government's unmentionable "additional arguments," what's particularly funny about this passage is the suggestion that it could somehow "turn out" that the government would be required to allow Doe's abortion under "the position the Government has so far advanced," as if the government hadn't taken the position all along that it could never be required to allow Doe's abortion so long as she was "residing in a U.S. Government detention facility."

As I said above, I certainly don't begrudge Kavanaugh's skepticism of the government's position.  Very briefly, if one assumes that Doe had a constitutional right under U.S. law to an abortion, it's very difficult to see how it can be limited to a right to not be prevented from going back to Central America to get one (or to be prohibited from getting one, as the case may be and apparently was).  A right under U.S. law to get an abortion is, almost by definition, a right to get an abortion in the United States (though the government didn't concede this), not a right against being prevented from getting an abortion anywhere on Earth.  The Constitution isn't even concerned with whether the government prevents women from getting abortions in Central America; whatever abortion rights it grants detained illegal immigrants, then, must be rights that can be enjoyed here.

As to facilitation, as I understand the Court's facilitation cases, they say that women don't have rights to government-facilitated abortions so long as the denial of government-facilitated abortions doesn't legally block them from getting non-government-facilitated abortions.  They don't say that the government can refuse to facilitate abortion when the only abortion legally available to a woman within the United States is a government-facilitated abortion.  That's why federal prisons have to "facilitate" abortion by allowing pregnant female prisoners to get them.  To say that in Doe's case there might have been a non-government-facilitated abortion available in Central America is irrelevant, because again, the Constitution does not guarantee a right to an abortion in Central America or apply there; whatever abortion rights it guarantees are both limited to the United States and enjoyable in the United States.

I would applaud Judge Kavanaugh, then, for implicitly rejecting the government's borderline-frivolous arguments.  All that I object to is his going to bizarre lengths to avoid acknowledging that they'd been made and to make it out that the government's arguments for reversal were something else almost entirely.  That, I think, is a strange way for a judge to act, but it is easily explicable.  Had Judge Kavanaugh explicitly rejected the government's arguments, and perhaps even if he had merely acknowledged their existence and explicitly chose to decide on narrower grounds, he would stand a lower chance of nomination to the Court today, and had he accepted them, he wouldn't have been confirmable.  As things are, he both appears to have gone as far as the government's litigating position allowed, thereby avoiding looking like an abortion moderate, while not going that far at all, thereby passing muster with moderates.  

Of course, I don't mean to say that's the only possible explanation of his conduct, which may owe as much or more to a sincere (if often hidden) minimalist streak as to his ambitions.  Giving the government some additional time to find a sponsor was a way to avoid unnecessarily reaching a "sweeping constitutional decision," as he said at oral argument.  But avoiding reaching the government's arguments is one thing; playing possum with them is something else.

As to the substantive merits of what Judge Kavanaugh did or didn't do, for those who do believe in creatively misreading (or "narrowing") the Court's abortion precedents, it should be noted that Judge Kavanaugh hasn't been reluctant to creatively narrow or misread other precedents in the past.  Most famously, though least egregiously, he opined that though the Supreme Court upheld the constitutionality of multi-headed independent agencies in Humphrey's Executor, and upheld the constitutionality of the single-headed Office of the Independent Counsel in Morrison v. Olson 8-1 only thirty years ago, the independent Consumer Financial Protection Bureau was unconstitutional because it had a single head.  

I still don't get why Judge Kavanaugh thinks single-headedness meaningfully distinguishes the CFPB from the SEC, or why he thinks that Morrison isn't fatal to his argument from single-headedness.  But I can say that while he purports to faithfully follow Morrison and merely find it completely distinguishable, he also writes that today there is "nearly universal consensus . . . that Justice Scalia [the lone Morrison dissenter] had been right back in 1988 to view the independent counsel system as an unwise and unconstitutional departure from historical practice and a serious threat to individual liberty" (emphasis added).  For the proposition that there is near-universal consensus that a near-unanimous thirty-year-old Supreme Court precedent was wrongly decided, he cites only a law school magazine's quotation of Justice Kagan's meaningless remark in a law school Q&A that Scalia's dissent in Morrison "was one of the greatest dissents ever written and every year it gets better."  (This in the context of a discussion of legal writing, not Justice Kagan's views about removal power. It is a really well-written dissent.)  

Better yet, immediately after asserting that the independent counsel system was unconstitutional, Judge Kavanaugh clarifies that "[i]n this section of the opinion, I am addressing the historical practice of how independent agencies are structured. A separate question is whether Morrison v. Olson constitutes a judicial precedent on the question of whether a single-Director independent regulatory agency is constitutional."  That way, it's clear that he's only saying that the Office of Independent Counsel was unconstitutional as an historical matter, not as a legal one, given the binding precedent that says it wasn't.  Or something like that.  (Perhaps Morrison has been overruled in the court of history.)

Then there's Chevron.  I've written at great length about Judge Kavanaugh's distortions of the major-questions exception to Chevron before.  But to briefly summarize, in King v. Burwell the Court fashioned, for the first time, a major-questions exception to Chevron, under which the Court won't defer to agencies on really major interpretive questions and will instead decide for itself whether to uphold agency interpretations.  The agency still can win, as it did in King; there isn't even a thumb on the scale against the agency.  All that changes when the major-questions doctrine applies is that the agency's interpretation is reviewed de novo.  

Prior to King, the Court routinely gave Chevron deference on major questions, but said in a number of cases that Congress is unlikely to "hide elephants in mouseholes," that is, hide authorizations of massive regulatory power in especially obscure or unassuming statutory provisions.  And it said that in cases where an agency claims Congress has done so, the mismatch between those mousehole-like provisions and the agency's elephantine claims of regulatory power can be so great that it is unambiguous, under Chevron's first step, that the agency lacks the power it claims.

From these cases, Judge Kavanaugh fashioned a new doctrine completely of his own invention that he called the "major rules doctrine," which he would claim was just a better name for the major questions doctrine.  It's not, which is why he had to give the doctrine a new name.  Under Judge Kavanaugh's major rules doctrine, Congress can never be understood to authorize a "major rule" unless it does so unambiguously.  

This doctrine, not to put too fine a point on it, has nothing to do with anything the Supreme Court has ever said about the major questions doctrine.  What the Court has said is that (1) Congress can authorize profoundly major rules in profoundly ambiguous and even arguably textually foreclosed ways (see King), but that sometimes agencies won't get deference on the major question of whether Congress did (hence the name of the doctrine), and (2) sometimes when an agency claims that Congress gave it authorization for an elephantine rule in an obscure mousehole of a provision, it will be unambiguous that it didn't because of the implausibility of that kind of obscure authorization.  The Court has never said that if Congress is truly ambiguous on the subject of a major rule, the agency writing the major rule automatically loses.  Indeed, to say so would be literally nonsensical, because there are some subjects on which anything that an agency does would be a major rule (like the question in King, or how to classify ISPs, which was the question before Kavanaugh in the opinion where he launched the major rules doctrine).

Finally, there's Judge Kavanaugh's take on my beloved Marks doctrine, which again so badly misdescribes the doctrine in question that he had to literally rename it to talk about his misdescription of it.  According to Judge Kavanaugh, the narrowest grounds rule, under which the Court's holding in a fractured opinion is deemed to be the view of the members who concurred in the judgment on the narrowest grounds, is really the middle grounds rule, under which the Court's holding in a fractured opinion is deemed to be the view of the members who occupy some middle ground between a broader opinion and the dissent.  

What does that mean in practice?  Surprisingly, Kavanaugh says it means that if the dissent "did not address the issue" on which the Justices concurring in the judgment disagree, there is no "Marks middle ground" and no binding precedent under Marks, even if one opinion concurring in the judgment is plainly narrower than the others.  That is to say, the dissent controls the meaning of a fragmented opinion.  Hypothetically, then, if two Justices say that a redistricting plan can never violate the Voting Rights Act and that the one before them therefore didn't, three Justices say that redistricting plans can sometimes violate the Voting Rights Act under a certain test and that the one before them didn't, and four dissent because they think the Court lacks jurisdiction, Judge Kavanaugh would say that under Marks, the three-Justice plurality isn't controlling* because their narrowest grounds aren't "middle grounds."  

That's an interesting idea, although there's no earthly reason to say that the plurality's opinion would become any more binding if the dissent had opined on the merits.  In saying it would, Judge Kavanaugh expressly trades on the fallacious view that lower courts can somehow be bound by Supreme Court "majorities" largely comprised of dissenters (the argument being that if the dissent had broadly read the VRA, there would be a controlling dissent/plurality majority for the proposition that redistricting plans that flunked the plurality's more forgiving test are illegal, and that because it didn't, there's not).  But however good an idea it may be, it mangles Marks,** which isn't just a rule about how to read precedent but itself a binding precedent of the Supreme Court.  However confusing Marks may be in difficult applications, every judge in America besides Judge Kavanaugh would agree that in my hypothetical, the plurality would be binding under Marks even if the dissent consisted of a blank sheet of paper.  To say it wouldn't because it wouldn't be a "Marks middle ground" transparently disobeys Marks.  People who wish Judge Kavanaugh had endorsed the government's rather less transparent invitation to disobey precedent in Garza, then, have every right to ask why he didn't.

* To be clear, this isn't just a hypothetical, but a stylized illustration of something Judge Kavanaugh has done.  Specifically, Judge Kavanaugh refused to give stare decisis effect to a fragmented Supreme Court opinion, Shady Grove Orthopedic Associates v. Allstate Insurance Co., solely because the dissent didn't address the issues on which the Justices in the majority split, thereby preventing him from divining a "Marks middle ground."  In that case, Justice Stevens' grounds for concurring in the judgment have generally been deemed narrower than the plurality's and therefore treated as binding, though some courts don't find them narrower.  Whatever the application of the real Marks rule to Shady Grove, Judge Kavanaugh didn't decline to treat Justice Stevens' opinion as binding because it wasn't narrower, but because the dissent didn't address the issues it did.

** Not to mention en banc D.C. Circuit precedent, which flatly forbids Marks dissent-counting.  

Does Anyone on the Supreme Court Believe in Chevron Anymore? A Squib on Chevron in SAS Institute

Yesterday the Court decided SAS Institute Inc. v. Iancu, a case on whether the Patent Office must decide the patentability of every patent claim challenged by a petitioner in an inter partes review (an adversarial review of previously issued patents), or may only rule on the petitioner's non-frivolous challenges.  The Patent Office had issued a regulation providing that in deciding whether or not to institute an inter partes review upon being petitioned to do so, it could limit that review to only the petitioner's serious challenges.  But in an opinion by Justice Gorsuch, the Court held 5-4 that the relevant statute unambiguously forbids that sensible procedure.  Both that opinion and the lead dissent augur radical change in Chevron doctrine.

The majority opinion claims that the petitioner suggested the Court overrule Chevron and hints at some doubt about whether Chevron should be overruled before deeming the question unnecessary to deciding the case.  One would think that if the petitioner in SAS Institute had asked the Court to overrule Chevron, we all would have heard much more about SAS Institute.  That's correct; the petitioner didn't suggest the Court overrule Chevron.

In SAS Institute, the Patent Office sought Chevron deference to its regulation.  The petitioner, which wanted inter partes review of all the claims it challenged in its petition for inter partes review, not just the ones to which the Patent Office initially thought it had serious challenges, argued at great length that this regulation was unambiguously foreclosed at Step One of Chevron, and was, if not unambiguously impermissible, at least unreasonable at Step Two.  

In the course of making its Step Two argument, the petitioner noted that "[t]there are strong, even powerful arguments for the Court to retreat from Chevron’s approach of agency deference, and instead favor the 'impressive body of law' that Judge Friendly identified, pre-Chevron, 'sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term.'"  But it didn't actually make those arguments.  

Instead, the petitioner proceeded to suggest that "[t]hose constitutional concerns [about Chevron] can be avoided here, however, either by holding that the Board’s practice of issuing partial final decisions fails Chevron step one, or by simply enforcing step two of Chevron by its terms . . . ."  Further still, the petitioner went on to argue that the constitutional concerns with Chevron could not only be avoided in its case were the Court to not defer to the Patent Office, but that Chevron was perfectly constitutional if correctly applied, concluding: "In short, Chevron can survive, and remain consistent with 'the Constitution of the framers' design,' [here quoting from then-Judge Gorsuch's concurring opinion in Gutierrez-Brizuela recommending Chevron's overruling] if its steps are enforced with vigor."

In his opinion, Justice Gorsuch summarizes this take on Chevron in a curious way, as a "suggest[ion] that we might use this case to abandon Chevron and embrace the ‘impressive body’ of pre-Chevron law recognizing that ‘the meaning of a statutory term’ is properly a matter for ‘judicial [rather than] administrative judgment.’"  Slip op. at 14 (quoting Petitioner's Br. at 41 (quoting Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976) (Friendly, J.))).  He then goes on to write that, because the statute is clear, "whether Chevron should remain is a question we may leave for another day."  This is curious in a couple ways.  

First, the petitioner never suggested abandoning Chevron, but rather only noted "powerful [constitutional] arguments" to do so and ultimately both argued that the Court should avoid deciding Chevron's constitutionality and that Chevron, properly applied, is a constitutional standard under which the petitioner would win.  Justice Gorsuch would appear to be so interested in overruling Chevron that he's reading requests to overrule it into litigants' briefs  that aren't quite there, thereby availing himself of an opportunity to suggest in an opinion for the Court that "whether Chevron should remain" is a live question.

Second, and along similar lines, his quotation from the petitioner's brief repeats, and if anything substantially enhances, the deceptiveness of petitioner's selective quotation of Judge Friendly.  Judge Friendly's opinion in Pittston Stevedoring is famous for its description of pre-Chevron deference doctrine as an incoherent mess, not for its description of a cohesive "impressive body" of pre-Chevron law that rejected deference to agency statutory interpretation.  

In the passage in question, Judge Friendly wrote eight years before Chevron that "it is time to recognize . . . that there are two lines of Supreme Court decisions on this subject which are analytically in conflict, with the result that a court of appeals must choose the one it deems more appropriate for the case at hand.  Leading cases supporting the view that great deference must be given to the decisions of an administrative agency applying a statute to the facts and that such decisions can be reversed only if without rational basis are [collecting cases] . . . However, there is an impressive body of law sanctioning free substitution of judicial for administrative judgment when the question involves the meaning of a statutory term."

The petitioner, at least, suggested that the Court should "favor the 'impressive body of law' that Judge Friendly identified" counseling against deference, which implies that Judge Friendly at least might have identified another impressive body of law supporting it that the Court could favor instead—as he did.  Justice Gorsuch, on the other hand, paraphrases the petitioner as suggesting that the Court simply "embrace the 'impressive body' of pre-Chevron law recognizing that ‘the meaning of a statutory term’ is properly a matter for ‘judicial [rather than] administrative judgment,' and then cites the brief as quoting Friendly, leaving the reader with the impression that Judge Friendly described a homogeneous and impressive body of anti-deference pre-Chevron law.  

The Court's additions and alterations to Judge Friendly's language, which don't appear in petitioner's brief, are interesting too.  Judge Friendly wrote of a body of law that merely sanctioned the free substitution of judicial for administrative judgment, without recognizing any particular order of priority between the two.  But Justice Gorsuch has him (or petitioner's brief quoting him) describing a body of law that "recogniz[ed]" that statutory interpretation is "properly" a matter for "'judicial [rather than] administrative judgment'"—a recognition one could scarcely find were one to read the cases Judge Friendly cited as exemplary of his "impressive body of law."  These cases, rather, were merely instances where the Court appeared to review an agency interpretation with little or no deference and little or no self-consciousness about its lack of deference (as the Court often does today without mentioning Chevron).  There is nothing even like an argument in them for (or recognition of) judicial primacy in statutory interpretation.

The majority opinion's conjuring of a phantom attack on Chevron, and of an impressive body of Judge-Friendly-endorsed, anti-deference, pre-Chevron doctrine, though odd, is probably less odd than the lead dissent's commentary on Chevron.  Justice Breyer's dissent proposed that the Court defer under Chevron to the Patent Office's regulation.  In a paragraph of his dissent joined by Justices Ginsburg and Sotomayor, but not by Justice Kagan, who otherwise joined his dissent in full, Justice Breyer pauses to offer the following remarkable interpretation of Chevron before explaining why he would defer to the Patent Office:

In referring to Chevron, I do not mean that courts are to treat that case like a rigid, black-letter rule of law, instructing them always to allow agencies leeway to fill every gap in every statutory provision. See Mead Corp., supra, at 229–231. Rather, I understand Chevron as a rule of thumb, guiding courts in an effort to respect that leeway which Congress intended the agencies to have. I recognize that Congress does not always consider such matters, but if not, courts can often implement a more general, virtually omnipresent congressional purpose— namely, the creation of a well-functioning statutory scheme—by using a canon-like, judicially created construct, the hypothetical reasonable legislator, and asking what such legislators would likely have intended had Congress considered the question of delegating gap-filling authority to the agency.

Of course, Chevron is most definitely not a mere rule of thumb that guides courts to ask whether a hypothetical reasonable legislator would have wanted courts to defer to agency interpretations of a particular ambiguity in a particular statute.  Rather, Chevron is indeed "a rigid, black-letter rule of law" that instructs courts to always defer to reasonable agency interpretations of ambiguous statutes that they administer so long as agencies issue those interpretations in a sufficiently formal way, see Mead, City of Arlington, and sometimes even when they don't, see Barnhart.  

This rigidity is just what distinguishes Chevron from the pre-Chevron mess described in Judge Friendly's opinion; Justice Breyer's construct of the hypothetical reasonable legislator, on the other hand, is the signal feature of that pre-Chevron mess.  Prior to Chevron, courts attempted to determine whether Congress would have wanted them to defer to agency interpretations of particular ambiguities in particular statutes, just as Justice Breyer claims Chevron guides them to do today.  Because Congress does not, as Justice Breyer says, "always [or usually] consider such matters," courts were left to imagine how much deference hypothetical reasonable legislators would have wanted, and to construct such hypothetical preferences by recourse to ten or more factors.  This inevitably resulted in an unpredictable body of law that the Court ultimately resolved in Chevron.

Now, it comes as no great surprise that Justice Breyer subscribes to the pre-Chevron approach to deference doctrine and claims, however implausibly, that Chevron can be squared with it.  For he has been saying so for over thirty years, dating back at least to a law review article he wrote as a circuit judge two years after Chevron was decided, in which he argued that even after Chevron a court should decide whether a hypothetical reasonable legislator would want it to defer to a particular agency on a particular question by considering ten or so factors, including whether the question is "one that the agency or the court is more likely to answer correctly" (not an easy question for the court to answer neutrally, that), and "whether the agency can be trusted to give a properly balanced answer."

What is surprising, though, is that Justices Ginsburg and Sotomayor joined the section of his dissent arguing that Chevron merely guides courts to ask whether a hypothetical reasonable legislator would desire deferential review of agency interpretations in any particular case.  In the past, with the exception of an opinion, Barnhart, on when agencies should get Chevron deference to even their interpretations that aren't advanced in notice-and-comment rulemakings or formal adjudications, Justice Breyer has been alone on the Court in advancing his view of Chevron.  (In Barnhart, he was able to get most of the Court to agree that, when an agency doesn't promulgate its interpretation formally, courts should consider all the factors he's always thought generally relevant to deference in deciding whether or not to defer to the informal interpretation.)   

Most recently, in City of Arlington, he wrote a solo concurring opinion arguing that Chevron deference was appropriate in that case only because it satisfied his multi-factor approach to "approximat[ing] how Congress likely [i.e., hypothetically] would have meant to allocate interpretive law-determining authority between reviewing court and agency."  Justices Sotomayor and Ginsburg did not join that opinion; they joined Justice Scalia's opinion for the Court, which claimed that agencies must always receive Chevron deference to any sufficiently formal interpretation of statutes that they administer.  Of course, it would be difficult to find five votes for that opinion now; Scalia has been replaced by Gorsuch, and the fifth vote in City of Arlington, Justice Thomas, now believes Chevron is likely unconstitutional.

It's possibly a mistake to read too much into Justices Sotomayor and Ginsburg's joining this section of Justice Breyer's dissent; perhaps they only joined it out of collegiality or disinterest in fussing over the details of a dissent on a subject they don't tremendously care about.  On the other hand, given that one of their colleagues refused to join this thoroughly gratuitous discussion of Chevron and presumably asked if it could be removed, it could hardly have escaped their attention.  Perhaps, then, they now genuinely believe that lower courts should inquire into whether a hypothetical reasonable legislator would have wanted them to defer to an agency before granting deference.  Or, perhaps they hope that Justice Breyer's proposal to trim Chevron back could operate as an olive branch to those members of the Court who want to overrule it.

In any event, after SAS Institute there is really only one Justice, Justice Kagan, who is committed on paper to upholding Chevron.  Two members of the Court, Justice Thomas and Justice Gorsuch, have argued that deference to administrative agencies on statutory interpretation is unconstitutional; another three members, Chief Justice Roberts and Justices Kennedy and Alito, joined the former's dissent in City of Arlington, which argued that courts must somehow decide, in the case of every ambiguity in a statute over which an agency has general rulemaking authority, whether Congress implicitly delegated gap-filling authority to the agency as to that particular ambiguity; and Justice Breyer, now joined by Justices Ginsburg and Sotomayor, has argued much the same thing, albeit of course in a more distinctively Breyerian Legal-Process-School-influenced way.  

The Breyer/Roberts position is certainly more moderate than the Thomas/Gorsuch position, and purports to stop short of overruling Chevron, but overruling Chevron is exactly what it would do.  Inviting lower courts to decide in every case whether Congress would have wanted them to defer would simply reincarnate the bivalent pre-Chevron deference doctrine that Judge Friendly actually described in Pittston Stevedoring, and would inevitably lead to a great deal less deference than Chevron's mandatory deference regime currently requires, as courts would simply find that Congress wouldn't have wanted them to defer in those cases that they really want to decide for themselves.  To the extent that members of the Court are becoming more interested in Justice Breyer's long-held views in hopes that adopting them could stave off more extreme proposals to kill off deference altogether, they may want to ask themselves whether giving the lower courts unfettered discretion to grant or deny deference is what they really want.

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 précis 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 courts—a 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.