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Monday, June 11, 2018

SCOTUS Term: Marks All the Way Down, and the Importance of Conceptual Legal Puzzles

I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.

I have previously written (on my own blog) about the meta logic of Hughes v. United States.  In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision(Here’s an example of the 4-1-4 prior opinion at issue in Hughes.)  According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.”  Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning. 

Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on.  What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions?  This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.

For example, let’s say Justice Sotomayor believed that the “narrowest opinion” is the one proffered by the largest number of Justices concurring in the judgment.  Then, if Justice Sotomayor’s holding about the meaning of Marks is considered the narrowest opinion, her holding is not considered the narrowest opinion – and we would look to how the 4 reasoned through Marks.  Further, if Justices Kagan, Breyer, Ginsburg, and the Chief wrote the plurality holding that the Marks narrowest opinion is the one that commands the most Justices of the Court, including dissents, that reasoning could lead to not accepting their rationale, if one initially accepts their rationale.  It’s just Marks all the way down.

In writing this blog, I pondered whether we should continue to spend much time ruminating on these excellent conceptual legal puzzles, in an era where asylum seekers are being separated from their families, school shootings dominate the news, and the real, practical stakes of our political strife are significant and pressing.  I continue to believe that rule of law requires formal, abstract thinking about cases, divorced from the result.  These sort of puzzles remind us to keep reasoning markedly distinct from result, and they help hone our analytical skills so we can develop a coherent body of law that enhances legal legitimacy.  I’d be interested to hear other thoughts on this issue.

(Cross posted at In a Crowded Theater.)

Posted by Erica Goldberg on June 11, 2018 at 01:17 PM in 2018 End of Term | Permalink

Comments

"whether we should continue to spend much time ruminating on these excellent conceptual legal puzzles"

Certainly we should study the most morally important things first--like free speech and 4A-privacy. But we should also take breaks from those subjects periodically so we don't get bored/exhausted by them.

Those break-times are good times to study the lesser important but still interesting other subjects/areas of law.

Studying different areas of law can also shine new light on your main area of expertise. For instance, studying anti-trust law may give you new insights into whether or not the government should have a monopoly on violence.

Posted by: narrowest Marxism | Jun 12, 2018 1:27:57 AM

Asher, those are great examples of ways to avoid the paradox. Perhaps the only ways to create the paradox involve defining narrowness using a predictive method -- counting Justices either just in the plurality or in the plurality and including the dissent.

Orin, I like that, although it does beg the question of what legal scholarship is/ought to be. My own view likely aligns with yours, although sometimes I worry that playing with hypotheticals in this way is frivolous or done purely for aesthetic reasons.

Posted by: Erica R Goldberg | Jun 11, 2018 11:35:12 PM

Erica writes:

"In writing this blog, I pondered whether we should continue to spend much time ruminating on these excellent conceptual legal puzzles, in an era where asylum seekers are being separated from their families, school shootings dominate the news, and the real, practical stakes of our political strife are significant and pressing. I continue to believe that rule of law requires formal, abstract thinking about cases, divorced from the result. These sort of puzzles remind us to keep reasoning markedly distinct from result, and they help hone our analytical skills so we can develop a coherent body of law that enhances legal legitimacy. I’d be interested to hear other thoughts on this issue."

OK, I'll bite. It's always hard to come up with a one size fits all answer to the 'what should law professors do' question, as different professors have different conceptions of the job and it's hard to say that any one standard is *the* correct one. With that said, I personally think that we are hired to be legal scholars, and that we shouldn't have to apologize for doing that which we were hired to do. Of course, in our free time we can do other things, and perhaps as citizens we should do them. But I see that as our perceived obligations as citizens, not as academics, and I tend to see a difference between what we do as part of our work and what we do outside that work. The lines can blur when our scholarly work may be about broader political developments, I realize, but I still tend to see a work/outside-work distinction.

Posted by: Orin Kerr | Jun 11, 2018 7:48:28 PM

It's hard for me to see how these paradoxes ever get off the ground because it's hard for me to see how one could ever conclude that one approach to Marks is a narrower ground for concurring in the Hughes judgment than some other approach to Marks. So for example, I believe the SG alternatively argued in Hughes that Justice Sotomayor's opinion in Freeman was binding under Marks because (a) it was a subset of the broader plurality opinion and (b) she and the dissenters would agree on what to do in Hughes's case. So you could imagine a lineup where three Justices vote to affirm the judgment below (which treated Justice Sotomayor's opinion on Freeman as binding) on ground (a), two vote to affirm on ground (b), two dissent on the theory that an opinion is only binding under Marks if it is a logical subset of other broader opinions concurring in the judgment, and that Justice Sotomayor's Freeman opinion wasn't a logical subset of the Freeman plurality's opinion, while two other Justices dissent and say that Marks should be overruled.

Now, it would seem that in order to figure out what the Marks holding of that opinion is, you have to apply Marks to that set of opinions, and you can't apply whatever you think the Court has now said that Marks means without first applying Marks to that set of opinions, independently of what that set of opinions has held Marks means, because that's just what we're trying to figure out. So then, as between the three-Justice-pluraity-endorsed subset theory and the concurring-opinion-endorsed dissent-counting theory, which was the narrower ground for finding Justice Sotomayor's opinion binding? The instinctive answer is probably the latter, because it allows you to generate Marks holdings without a set/subset relationship between opinions of Justices concurring in the judgment, but there are cases where a dissent doesn't engage with the issues the fractured majority does (like Shady Grove, where logical-subset gets you a Marks holding but dissent-counting doesn't). And there are cases where relying on dissent/concurring Justice agreement will generate binding precedent, but less of it than the logical-subset approach, as the logical-subset approach says the opinion that delineates the subset is binding in all cases, while the dissent-counting approach says that some opinion concurring in a judgment is only binding, at least by virtue of dissent agreement in those cases where the dissenters would actually agree with its results. Now, this approach also says that a median opinion is binding in those cases where the dissent doesn't agree with its result, but the rest of the splintered majority would, and so you might think that this approach identifies an opinion that's binding in all cases, either by virtue of agreement with broader concurring opinions or agreement with dissenters. But it isn't always the case that there's an opinion that generates results with which *some* five members of the fractured Court would agree in every case (Till v. SCS Credit Corp. is an example of this; in Till, there are hypothetical cases where the opinion that logical-subset identifies as binding would be on the losing end of a 5-4).

So in short, it can't categorically be said that a predictive dissent-counting approach is a broader rule, relative to the generation of precedent from fractured opinions, than logical-subset. Nor, of course, can it be said that logical-subset is broader.

I do think there are some variations on Marks that are clearly narrower/broader vis-a-vis each other; some statements of logical-subset require a set-subset relationship as to results only, while others require one as to results and rules -- that is, for a rule to be a subset of another, the rule itself, not just the results it generates, must have some logical relationship to the other rule, e.g. the addition of a necessary condition to the other rule. So if a couple Justices found a Marks holding on that theory of Marks, and three others found a Marks holding on the less demanding version of logical-subset, you could say the former is narrower. That, however, doesn't result in paradox because the former approach to Marks would itself dictate that that approach is the Marks holding; it is a logical subset of the less demanding version of logical subset, both in terms of results and the logical form of the two rules.

Posted by: Asher Steinberg | Jun 11, 2018 6:24:05 PM

That assertion that :

I continue to believe that rule of law requires formal, abstract thinking about cases, divorced from the result. These sort of puzzles remind us to keep reasoning markedly distinct from result….

Is simply great !! Professor Aharon Barak , who is (I strongly believe ) the utmost creative and experienced judge ever lived ( the former president of the Israeli supreme court ) has claimed once in his book ( " judicial discretion " ) that ( not a quote ) :

A judge who sticks blindly to a precedent , just for the sake of uniformity , without taking to account , the unique features or circumstances of a case , is exercising unreasonable discretion .

Precedents , meant for guiding the judge or lower courts or attorneys . But , this is for having guidance , not for sticking blindly to it . Each case , bears unique legal and factual features , one can't ignore just like that . Only , if there is clear and complete similarity with certain precedent , a judge is bound by it . But guidance , meant for a judge , to read first of all , the reasoning over the results , and draw the right guidance for matching it , in accordance , with the case he handles . No more than that !!

Rendering Justice , is not like a production line . Can't be industrialized.

Thanks

Posted by: El roam | Jun 11, 2018 3:50:38 PM

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