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Wednesday, December 20, 2017

The Marks Rule and Hughes v. United States

Some of the Supreme Court’s most important decisions lack any majority opinion. When confronting those fractured rulings, courts often apply “the Marks rule”—the principle that precedent can be found in the “position taken by those members who concurred in the judgments on the narrowest grounds.” Easier said than done. As the courts of appeals have learned, extracting precedent from fractured decisions can be like squeezing water from stone. And the Court has repeatedly declined to clarify how to apply the Marks rule.

But all that may be about to change. Earlier this month, the Court granted review of Hughes v. United States, which presents not one but two questions on how to apply the Marks rule. The underlying merits issue involves an important aspect of federal sentencing that the Court addressed in Freeman v. United States (2011). Alas, Freeman fractured 4-1-4, with Justice Sonia Sotomayor writing a solo opinion that all eight other Justices expressly disagreed with. After many circuits concluded that Justice Sotomayor’s approach was the “narrowest grounds,” the DC Circuit and the Ninth Circuit concluded that Freeman was binding only for its result—and then chose to follow the Freeman plurality. Hughes may finally reveal how the Justices would apply the Marks rule in that kind of case. 

There’s a lot to say about Hughes, but for now I’d like to add a perspective that isn’t directly represented in the cert papers: the Court should throw the Marks rule overboard. By favoring the “narrowest grounds,” however defined, Marks creates inefficient interpretive burdens for later courts, privileges outlier views among the Justices, and discourages compromise. Moreover, the Marks rule is not well supported by history and does not reliably reflect majoritarian views on the Court. So instead of seeking out the “narrowest grounds,” courts should simply ask whether a majority of the Court has expressly endorsed a single rule of decision, even if not in a single opinion. That approach would place the burden of precedent formation on the most efficient actors—the Justices themselves.

I defend that position in a new draft paper. The paper also presents evidence of how the Supreme Court, federal circuits, and state appellate courts are actually applying Marks. In brief, the data shows that lower courts are using the Marks rule with rapidly increasing frequency. The Marks rule is thus on the way to becoming a staple of appellate practice—and possibly a framework opinion. Yet courts often disagree about how Marks’s “narrowest grounds” test applies, and explicit Marks attention is largely focused on a relatively small number of fragmented decisions. These findings can help courts, commentators, and litigants evaluate Marks’s practical operation, as well as the costs and benefits of abandoning it.

Hughes calls for more than just rationalizing Marks: the parties—and the Justices—should consider whether the Marks rule is worth having at all.

Posted by Richard M. Re on December 20, 2017 at 01:35 PM | Permalink


I see little chance the court will abandon Marks prospectively. It is a rule primarily for lower courts and is an issue the SCOTUS need not, and will not, decide.

Posted by: michael c McMahon | Mar 3, 2018 2:41:41 PM

Actually, in Dorf's hypothetical, don't you at least have what you call binding "rule agreement" on overruling Marks?

Posted by: Asher Steinberg | Dec 22, 2017 6:45:42 PM

Mike: Two quick notes on your hypo. First, Marks proponents might differ on whether your scenario has a "narrowest grounds" opinion; for example, a logical subset proponent would need to know more about the solo justice's "in between" test. Second, if there is no majority agreement, then there would be no legal change under the majority rule. However, the majority rule could allow the justices to eliminate a precedent, thereby allowing percolation.

Lee: If we agree that "there is a huge determinacy surplus" under my proposal, then we agree on a lot. But given that key agreement, why shouldn’t SCOTUS at least abandon Marks prospectively – that is, declare it inapplicable to future fragmented decisions? You suggest that that would create a "determinacy" problem, but I don’t see why. And because the Marks rule is problematic already, I think even retroactive abandonment would be a net gain.

Thanks to all for the comments.

Posted by: Richard | Dec 21, 2017 3:53:58 PM

I'm not sure what it would mean to "throw Marks out." Going forward, sure, there is a huge determinacy surplus produced by the incentive to expressly declare decisional concurrence. But you still need something to interpret the decisions that precede the change in Marks. (After all, all Marks did was capture the prevailing interpretive practice.) So it seems like you end up in a situation a lot like you confront with implied remedies - the interpretive defaults depend a lot on when era the scrutinized rule was announced.

But then, it seems, you have one set of interpretive rules for pre-Freeman decisions and another set for post-Freeman decisions. And that's not very good, at least as measured by determinacy. It seems the better rule would be, rather than to throw Marks out, to clarify Marks in a way that produces a lot of the prospective determinacy benefit without wiping out its value as an interpretive tool for pre-Freeman decisions.

Posted by: Lee Kovarsky | Dec 21, 2017 9:44:17 AM

Suppose the Court in Hughes divides 4-1-4 on the question whether to replace Marks with some other rule. Let's say 4 justices vote to retain Marks, 4 justices vote to replace Marks with what we might call the "Re rule." And 1 justice says that Marks is wrong but doesn't like the Re rule either. She prefers something in between. What's the status of Marks thereafter? Is it overruled under the Marks rule but still good law under the Re rule?

Posted by: Michael C Dorf | Dec 20, 2017 9:12:48 PM

No. Among other reasons, people wouldn't be able to find my posts on Marks that Richard has kindly cited in his paper.

Posted by: Asher Steinberg | Dec 20, 2017 4:46:16 PM

If they over-rule the decision, will Asher have to change the name of his blog?

Posted by: Dumpling | Dec 20, 2017 3:32:39 PM

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