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Monday, March 19, 2018

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. 

Posted by Richard M. Re on March 19, 2018 at 08:30 AM | Permalink


It was indeed a great conversation, and anyone who likes Prawfs would probably like Oral Argument, so long as they like podcasts.

Of course the government's reasoning is unpersuasive. I think it is also a little unpersuasive for you or Hughes to say that the cases that are most often Marks'd generate circuit splits. One could similarly say that the sorts of Establishment Clause fact patterns that are most often Lemon'd generate circuit splits, or that the offenses that were most often ACCA residual clause-analyzed in the courts of appeals generated circuit splits. The easy cases under Lemon, of which many exist, or the easy ones under the residual clause (of which many existed, as Alito wrote in Johnson), might not get appealed at all. And particularly with a rule like Marks, there's a tendency not to analyze explicitly under the framework when you think the answer's obvious; everyone knows that the parts of Kennedy's opinion in Parents Involved that take issue with the majority state Parents Involved's narrowest grounds, everyone knows that if there are four votes to invalidate a law under strict scrutiny and two under intermediate, intermediate is the narrowest grounds.

To the extent a few people get tripped up on this, that is a sign that some people don't understand the doctrine's truly determinate applications, not that the doctrine's such a mystery that we genuinely don't know forty years after Marks if intermediate scrutiny is a narrower ground for invalidating a law than strict. Even in Hughes, the source of at least 95% of the confusion about whether the underlying case, Freeman, contains a Marks holding has nothing to do with how you do Marks. Rather, it's that the plurality opinion in Freeman is intensely confusing; people can't agree if everyone who wins under it wins under the ostensibly narrower opinion because it makes vague statements about what the law on the question it was considering "likely" is (and then comically referring to those statements in the very next and penultimate sentence of the opinion as "[t]his straightforward analysis"!). Marks is not to blame for the opacity of that opinion. To be sure, under your approach courts wouldn't have to grapple with that opinion at all, except for persuasive purposes, because no opinion or set of opinions or area of shared agreement between opinions in Freeman would bind them. But again, that has nothing to do with the difficulty of Marks; you're just releasing lower courts from their obligations to fuss with a small subset of the many underdeterminate Supreme Court opinions, the ones that appear in fractured cases. If there were a fifth vote for the Freeman plurality, lower courts would be having just as hard a time with it.

Posted by: Asher Steinberg | Mar 19, 2018 1:37:00 PM

Richard also had a great conversation with us, on the "Oral Argument" podcast, about this. It's our most recent episode: http://oralargument.org/164

Posted by: Joe Miller | Mar 19, 2018 9:35:41 AM

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