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Monday, November 02, 2015

JOTWELL: Pfander on Williams on Marks

The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Ryan C. Williams, Questions Marks: Plurality Decisions and Precedential Constraint, which discusses lower courts' misuse of Marks v. United States in identifying controlling precedent from plurality opinions.

Posted by Howard Wasserman on November 2, 2015 at 11:11 AM in Article Spotlight, Howard Wasserman | Permalink


I apologize for arriving late to this discussion. But I did want to thank everyone for their very thoughtful comments. I think that Professor Pfander and TJ have accurately characterized my position. I do appreciate, however, that others have been operating at something of a disadvantage given that the piece is not publicly available. (I’m still working through some substantive revisions and thus not quite ready to post to SSRN. But I’d be happy to share the most recent draft with anyone who is interested.)

Just to add my own two-cents to the conversation thus far, I think some of the possible confusion on the subject might be cleared up by thinking about the different roles of results and reasons in the precedential analysis.

My sense is that most existing approaches to the Marks rule, including what I take to be Orin’s suggested approach and the D.C. Circuit’s approach, aim to identify a single rationale from the precedent case as the “narrowest” and, therefore, controlling.

My suggested approach works somewhat differently. Rather than seeking to identify an actual or hypothetical agreement on a particular rationale, I argue that lower courts should instead focus on the universe of results in future cases that the majority of Justices whose votes were necessary to the judgment in the precedent case have logically committed themselves to by virtue of their respective opinions. Thus, to take Asher’s earlier example, if four Justices agree that a plaintiff has a right of action under Statute A but not Statute B and a fifth Justice says the plaintiff has such a right under Statute B but not Statute A, I would say that lower courts should be bound to find in favor of a similarly situated plaintiff in any future case where both the plurality’s interpretation of Statute A and the concurring Justice’s interpretation of Statute B point to that same result.

In other words, when the Supreme Court issues a judgment with no majority opinion, lower courts should be bound by that judgment only in cases where each of the judgment-necessary rationales would compel the same result. Where the outcome in a later case would depend on the choice between two or more of the judgment-necessary opinions, I would say that the binding force of the decision essentially runs out. In that circumstance, lower courts would be left with a limited domain of residual discretion to work out for themselves what the law requires.

Now, one might say that this is no different from saying that a plurality decision is “binding on its facts” in cases that are not “materially different” from the facts in the precedent case (which I take to be Asher’s position in his most recent post). Fair enough. But that characterization raises the question of what it means for two non-identical cases to be “materially” similar to or different from one another. To my mind, the only principled basis for making such comparisons is by reference to the actual reasons for the decision in the precedent case. In a plurality decision, the actual reason the decision was decided in the manner it was is because it happened to be a case in which each of the judgment-necessary opinions pointed to the same result. Therefore, the universe of “materially” similar future cases consists of those cases falling within the same domain of shared agreement regarding the appropriate result.

Posted by: Ryan Williams | Nov 6, 2015 4:20:43 PM

I thought we were discussing whether, quoting you, "the result that everybody intuitively thinks is the case (i.e. that Slaughter-House is not overruled)" is the case. And we seem to agree that under the D.C. Circuit's test, Slaughter-House hasn't been overruled, because on even the most subset-friendly reading of the test (a reading that looks only to results, not to the logical relation of legal reasons), privileges and immunities is not a logical subset.

Now, though, you've moved on to whether McDonald also contains a Marks holding to the effect that the Fourteenth Amendment incorporates the Second Amendment. Okay. What I think about that, under the D.C. Circuit's test, is that there is no Marks holding on the basis for incorporation, but that McDonald is binding on its facts, which means that, though no rationale for how Second Amendment rights are incorporated against the states comes out of McDonald, they are incorporated against the states somehow or another. Now, it may be that, because McDonald contains no Marks holding overruling Slaughterhouse, and because the only source of incorporation pre-McDonald doctrine recognizes is the Due Process Clause, the only possible source of incorporation is the Due Process Clause, and therefore, though McDonald lacks a Marks holding to that effect, that's the only way to understand McDonald's result. But with or without that, I think the D.C. Circuit's test gives a plausible enough account of what McDonald does.

I take it what Williams would say, and what you're supporting, is that there's a "shared consensus" that _some_ piece of the Fourteenth Amendment does the work in McDonald. But what kind of a Marks holding is that - or why is it useful or important to characterize that as the holding? The whole point of Marks is vertical stare decisis, and his description of McDonald wouldn't create any. Leaving aside that incorporation of the Second Amendment was a one-off that doesn't really get applied for anything beyond the proposition that the Second Amendment's incorporated, suppose Obergefell had been a 4-1-4 decision that went off on due process and equal protection. I take it Williams would say that there was a shared consensus that the Fourteenth Amendment protected gay marriage. How does that bind a lower court in a polygamy case? All I can see is that the court couldn't say that the Fourteenth Amendment doesn't regulate the definition of marriage at all. Other than that, he's at liberty to analyze the polygamy ban under whatever part of the Fourteenth Amendment he deems most relevant, and to use whatever test he wants to make up that complies with pre-Obergefell precedent. Moreover, even under the D.C. Circuit's test the court couldn't really say that the Fourteenth Amendment was silent on marriage definition. It would still have to acknowledge that Obergefell invalidated gay marriage bans, after a complaint was filed that raised only Fourteenth Amendment claims, and it would still have to explain why the facts in its case were materially different from the facts in Obergefell.

Posted by: Asher Steinberg | Nov 6, 2015 3:40:06 PM

Asher, assuming Thomas would incorporate in some cases where the plurality wouldn't, the DC Circuit's test results in _no precedent_. Essentially, McDonald v. Chicago would just be treated as if it were a one line decision stating "Reversed" with no reasoning attached. That is not what people think McDonald stands for. It is not the "result that everyone intuitively thinks is the case."

The result that everyone thinks is intuitively the case is that the Second Amendment is incorporated, and specifically via the 14th Amendment. You can't get to that proposition with the DC Circuit's test.

Posted by: TJ | Nov 5, 2015 8:28:58 PM

Actually, I'm very much on board with the D.C. Circuit's test, and if it's the case that Thomas would incorporate in some cases where the plurality wouldn't, then there you go - that's an account of how to logically get to the result that everyone intuitively thinks is the case. However, assuming, contrary to what you say (though I'm sure you're right) that Thomas really would only incorporate in a lesser included subset of cases where the plurality would, I still think that under the D.C. Circuit's test that's not a logical subset. Different tests that interpret/construct the same law, like tiers of scrutiny, are one thing, but a disagreement about what the controlling law even is is quite another. There may be five-Justice agreement that a certain subset of rights are incorporated, but if they don't agree on what law is making that happen, I don't call that a logical subset, anymore than I would say you've got a subset if four Justices say someone wins under Statute A but not Statute B, a fifth Justice says he has a cause of action under Statute B but not Statute A, and Statute B's scope on his view is a subset of Statute A's scope on the plurality's view.

Posted by: Asher Steinberg | Nov 5, 2015 5:29:35 PM

Asher, at that point your position is indistinguishable from Williams. But your version of what constitutes a "logical subset" is quite different from the DC Circuit's test.

The DC Circuit's test asks whether Justice X's position is a logical subset of Justice Y's position. Under that test, the four-justice plurality is not a logical subset of Justice Thomas's position, because they would find incorporation in some cases that Justice Thomas would not. Likewise, Justice Thomas's position is not a logical subset of the plurality's position, because Justice Thomas may well find incorporation in some cases (where Justice Thomas thinks it is a "privilege and immunity") that the plurality would not. Since neither opinion's position is a logical subset of the other, under the DC Circuit's test, there is no binding rationale beyond the specific facts of the case.

Your test is asking whether, despite no opinion being entirely a logical subset of the other, there is can still be some proposition (e.g. "the Second Amendment is incorporated via the Fourteenth for citizens") that represents shared agreement across the opinions. That is Williams' whole point. Now, you might say that your being able to come to the same thing on a blog shows the argument is obvious, but I don't see any disagreement left.

Posted by: TJ | Nov 4, 2015 2:15:49 AM

Doesn't the logical-subset interpretation of Marks provide an account of how to logically get to the result that everyone thinks is the case? While it may be that rights would be incorporated, on Thomas's view, as to a subset of persons for whom rights are incorporated on the plurality's view, such that five Justices necessarily agree that those persons are the beneficiaries of incorporation by some means, five Justices in the majority were _not_ logically committed to the view that the privileges and immunities clause incorporates anything. The beneficiaries of that clause may be a subset of the beneficiaries of the due process clause, but the clause itself isn't a subset of the due process clause.

Posted by: Asher Steinberg | Nov 4, 2015 1:02:10 AM

Orin, I think you are misunderstanding what Williams' argument is about. If there is a "narrower view" that is necessary for a fifth vote, just about everyone agrees that the narrower view is binding. Williams' paper is rather about the antecedent question of what constitutes the "narrower" view.

Take McDonald v. Chicago. Four justices in the majority opined that the second amendment is incorporated via the due process clause. Justice Thoams opined that the second amendment is incorporated via the privileges and immunities clause and NOT the due process clause. Which of these views is "narrower"? Most people think the due process holding is narrower, but logically there is a very strong case to be made that the privileges and immunities clause is narrower because the privileges and immunities clause only applies to citizens while the due process clause applies to everybody. So from that perspective Justice Thomas' opinion is the narrowest view, and the conclusion is that Slaughter-House is overruled. Since nobody actually thinks that is an accurate understanding of the current law, it shows that the concept of "narrower" is not self-explanatory, and Williams provides an account of how to logically get to the result that everybody intuitively thinks is the case (i.e. that Slaughter-House is not overruled).

Posted by: TJ | Nov 3, 2015 8:44:00 AM

I think that Marks, as properly/traditionally understood, rests on a fallacy, but as far as interpretations of Marks go, I think the correct one is the D.C. Circuit's, which holds that a necessary and sufficient basis for calling a concurring opinion narrower than another is its being a logical subset of the other opinion. If five Justices in the majority are committed to the proposition that a certain kind of statute is unconstitutional if it fails intermediate scrutiny (because one of them says so and four say it's unconstitutional if it fails strict scrutiny), and five Justices hold a statute of that type unconstitutional, then, on this view, a reason for the judgment subscribed to by five Justices who concurred in the judgment is that statutes of this kind that fail intermediate scrutiny are unconstitutional. And therefore, on this view, it's appropriate to call intermediate scrutiny a holding of the Court. This approach is the only reading of Marks I can understand, although I have serious problems with it for reasons I may give in a post on my blog this week. As for Orin's justification of what I believe is my preferred approach, I prefer to think in terms of actually shared reasons for judgments than views that a majority hypothetically could have agreed to. It strikes me that all sorts of things could be the subject of probable hypothetical SCOTUS majority agreement, not just traditional Marks holdings.

Posted by: Asher Steinberg | Nov 3, 2015 2:07:22 AM

As I see it, the key to understanding Marks -- and why Williams' approach is unpersuasive, at least as explained by Pfander -- is that as a practical matter, the Justice who has the narrowest vote for the winning side usually has the power to force the other Justices to join that narrower view if there is enough time to give to the case. Given unlimited time, and facing the practical options of having no binding view or a binding view that isn't their ideal, the Justices with broader views will usually yield eventually to the narrower view, even if they have to write concurring opinions saying that it's not their ideal answer and would go broader if they could. With that understanding, Marks is really a Supreme Court time saver: It means that the Justices don't have to spend all that time and energy having to compromise to the narrower view. So whether there is a consensus on a particular point given the opinions that are published isn't the relevant question; the important issue is what there would be a 5-Justice majority consensus on if the Justices had unlimited time and had to forge a consensus to get a bidning opinion out of it. And I think that the narrowest opinion for the majority side approach usually captures that, even if it means that the binding view under Marks is held by only one Justice.

Posted by: Orin Kerr | Nov 2, 2015 12:49:43 PM

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