Hughes v. United States and the Effects of the Marks Rule

Later this month, the Supreme Court will hear argument about the Marks rule, which holds that a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” When the Court granted cert in Hughes v. United States, I expressed my hope that the briefing would explore not just how best to apply the Marks rule, but also whether the rule is worth retaining at all.

Happily, the now-completed briefing does explore that more fundamental question. The petitioner argues in the alternative that Marks be abandoned, and the United States attempts to rebut that view. I have also filed an amicus brief (now posted here on SSRN) that makes the case for abandoning the Marks rule. There are several additional amici, including a pro-Marks professors’ brief authored by Maxwell Stearns and a brief on the underlying merits question on behalf of Douglas Berman.

One interesting aspect of the briefing has to do with the Marks rule’s effects, particularly whether the rule tends to clarify or confuse the law. At one point, the United States cited my forthcoming paper to argue that Marks has proven workable:

Courts of appeals have issued more than 400 decisions in the past several decades applying Marks to interpret more than 100 divided decisions of this Court. Richard M. Re, Beyond the Marks Rule 11 [cite omitted]. Their ability to apply Marks in this way demonstrates that Marks is not difficult to apply in the mine-run of cases.

While I am flattered that the government cited my work, the reasoning in the above paragraph strikes me as unpersuasive. The fact that the Marks rule is often cited might show that courts view it as binding but has little bearing on whether the rule is “difficult to apply in the mine-run of cases.” And, in fact, my research suggests that Marks tends to generate confusion and disagreement. The petitioner’s reply brief makes essentially that point, citing my amicus brief. Here is the relevant passage (with some cites omitted):

The best alternative to the logical-subset test is not the government’s; it would be returning to true majority rule. Marks has generated uncertainty and confusion. The government responds that Marks is cited a lot. RB32 (citing Richard Re, Beyond the Marks Rule 11 (Jan. 5, 2018) (forthcoming Harv. L. Rev.)). But the scholar who compiled those citations explains that they reflect widespread confusion: “[T]he cases that are most often ‘Marks’d’ have tended to generate intractable circuit splits,” and “[o]ther frequently Marks’d cases ... have yielded little guidance.” Re Br. 16.

The extensive confusion occasioned by Marks could be taken as a reason to abandon it (as I argue) or as a warrant for clarification. Either way, Marks’s effects suggest that the Court should take seriously its opportunity to provide guidance in this important area.