Friday, March 9, 2018
At the end of this month, the Supreme Court will hear oral argument in Hughes v. United States. One of the issues the Court will address is how to identify the holding of a decision that lacks a majority opinion. I’ve posted on SSRN a draft of my essay, Non-Majority Opinions and Biconditional Rules, forthcoming in the Yale Law Journal Forum, that examines a particularly challenging aspect of this puzzle. Here’s the abstract:
In Hughes v. United States, the Supreme Court will revisit a thorny question: how to determine the precedential effect of decisions with no majority opinion. For four decades, the clearest instruction from the Court has been the rule from Marks v. United States: the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The Marks rule raises particular concerns, however, when it is applied to biconditional rules. Biconditionals are distinctive in that they set a standard that dictates both success and failure for a given issue. More formulaically, they combine an if-then proposition (If A, then B) with its inverse (If Not-A, then Not-B).
Appellate courts on both sides of the circuit split that prompted the grant of certiorari in Hughes have overlooked the special features of biconditional rules. If the Supreme Court makes the same mistake, it could adopt a misguided approach that would unjustifiably create binding law without a sufficient consensus among the Justices involved in the precedent-setting case. This Essay identifies these concerns and proposes ways to coherently apply Marks to non-majority opinions that endorse biconditional rules.
The particular decision at issue in Hughes is Freeman v. United States, where the Court split 4-1-4 regarding when certain defendants are eligible to seek a sentence reduction based on a retroactive lowering of the sentencing guidelines. The government in Hughes is arguing: (1) a smaller set of defendants are eligible to seek a sentence reduction under Justice Sotomayor’s concurring opinion in Freeman than under Justice Kennedy’s plurality opinion in Freeman; (2) therefore, the Freeman concurrence is the “narrowest” and is binding under the Marks rule; and (3) the defendant in Hughes is ineligible for a sentence reduction under the Freeman concurrence’s test.
The parties in Hughes disagree about Point #1 because of some uncertainty regarding the scope of the test endorsed by the Freeman plurality. But even if the government is correct on Point #1, there’s a fundamental flaw in the analysis of which opinion is narrowest. Put simply: if the Freeman concurrence would deem a narrower universe of defendants to be eligible, then it would necessarily deem a broader universe of defendants to be ineligible. This is precisely the sort of problem that can arise when applying Marks to biconditional rules. The only plausible way for the Freeman concurrence to be the Court’s complete holding is to count the views of dissenting Justices—an approach that the Supreme Court has never endorsed and that is contrary to the prevailing understanding of Marks.