Some Thoughts on the Hughes Argument and Logical Subsets

Yesterday the Supreme Court heard oral argument in United States v. Hughes, a case involving how to identify the holding of a Supreme Court decision with no majority opinion. This issue traditionally (or at least for the last 40 years) has been analyzed using the rule from Marks v. United States, which states that the Court’s holding is “the position taken by those Members who concurred in the judgments on the narrowest grounds.” The particular fragmented decision at issue in Hughes is Freeman v. United States, in which 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.

Here is the transcript from yesterday’s argument. I was particularly interested in this observation by Justice Kagan [on pp.22-23 of the transcript], which occurs during a broader exchange in which Petitioner’s counsel is arguing against an approach to Marks that factors in the reasoning of dissenting Justices:

JUSTICE KAGAN: Well, Mr. Shumsky, I think -- I think your approach relies on dissents sometimes too, because take one of these logical subset cases. You have a concurrence that is a logical subset of the plurality. And you say, well, the concurrence controls. And that's true even as to times where the concurrence splits off with the plurality and joins with the dissent. So you're counting dissents too, I think.

Justice Kagan’s point highlights a concern I raise in my recent essay, Nonmajority Opinions and Biconditional Rules, 128 Yale L.J. F. 1 (2018). Some circuit judges interpreting Freeman have engaged in precisely this kind of reasoning regarding logical subsets, and Justice Kagan is exactly right that such an approach is really one that counts dissenting votes. Accordingly, in my view, to embrace this approach would be a departure from the prevailing understanding of Marks, and it would raise the same concerns that others have identified with allowing dissenting Justices to determine the binding content of Supreme Court decisions.

Here’s how I frame the problem in the essay:

[C]ourts have assumed that Justice Sotomayor’s concurring opinion in Freeman would be binding under Marks if it would make a narrower universe of defendants eligible for a sentence reduction than Justice Kennedy’s Freeman plurality opinion would. But, as a matter of logic, this assumption is mistaken. * * * Even if the Freeman concurrence makes a narrower set of defendants eligible for a sentence reduction, it necessarily must make a broader set of defendants ineligible for a sentence reduction.

What is being overlooked is the nature of biconditional rules:

Biconditionals are distinctive rules in that they set a standard that dictates both success and failure for a given issue. More formulaically, biconditionals combine a conditional proposition (If A, then B) with its inverse (If Not-A, then Not-B). Because biconditionals are two rules rolled into one, they complicate the inquiry into which of two or more opinions provides the “narrowest grounds” under Marks.

As I put it in the essay, the biconditionals endorsed by the Freeman plurality and concurrence have a top half, which would compel the conclusion that a particular defendant is eligible for a sentence reduction, and a bottom half, which would compel the conclusion that a particular defendant is not eligible. It is logically impossible for one complete biconditional rule to be the logical subset of another. If the universe of eligible defendants under the concurrence’s rule is a logical subset of the universe of eligible defendants under the plurality’s rule, then the opposite holds with respect to the universe of ineligible defendants.

Thinking about logical subsets in the context of Freeman is somewhat more complicated because the parties dispute whether the concurrence’s universe of eligible defendants truly is a logical subset of the plurality’s universe of eligible defendants. But even if that logical-subset relationship exists, the exact opposite relationship exists for the universe of defendants who are ineligible: the plurality’s universe of ineligible defendants would be a logical subset of the concurrence’s universe of ineligible defendants. 

Circling back to Justice Kagan’s point during oral argument, I’ll close this post by emphasizing that it is possible to apply a logical-subset approach to biconditional rules without counting dissenting votes. I propose two options, but here’s one: Read Freeman to make law only with respect to the top half of the biconditional. On this approach—and assuming that the Freeman concurrence is in fact a “logical subset” of the plurality as to the universe of eligible defendants—the holding of Freeman would be only the top half of the rule endorsed by Justice Sotomayor in her Freeman concurrence:

If a defendant’s plea agreement clearly relies on a subsequently lowered sentencing guideline, then the defendant is eligible to seek a reduction.

The implicit next sentence would be:

We do not decide—and we leave for another day—whether and under what circumstances a defendant whose plea agreement does not clearly rely on a subsequently lowered sentencing guideline is eligible to seek a reduction.