Wednesday, March 28, 2018

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.

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"Accordingly, in my view, to embrace this approach would be a departure from the prevailing understanding of Marks,"

I agree with everything you say but this. In my view, this implicit, unknowing reliance on dissents *is* the prevailing understanding of Marks. I have never come across a lower-court opinion that didn't apply both the "top" and "bottom" halves of an ostensibly narrowest biconditional. For example, courts that thought Powell's concurring opinion in Bakke was binding never said, "well, it's binding as to the affirmative-action programs it forbids, because there was majority agreement on forbidding those, but it's not binding as to the ones it allows, because you need to count dissenters for majority agreement on those." Rather, they just treated the entirety of his test as binding.

More importantly, as far as I can tell, that's exactly what Marks did with the plurality opinion in Memoirs; they remanded for a new trial under jury instructions that would instruct an acquittal if the films Marks showed weren't obscene under the Memoirs plurality test, but would instruct a conviction if they were obscene under that test -- though the rest of the Memoirs majority wouldn't have affirmed such a conviction, as they thought all obscenity protected. Of course, in your other writings you've claimed that the results of opinions aren't binding, just their holdings, but, even if the Court were likely to agree with you, the statements in Marks that, e.g., "the view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards," that before Miller, "Materials were deemed to be constitutionally protected unless the prosecution carried the burden of proving that they were 'utterly without redeeming social value,' and otherwise satisfied the stringent Memoirs requirements" (which isn't dicta because Marks was an ex post facto challenge that turned on what the law was before Miller and under Memoirs)," or even its canonical statement that "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds" -- not one half of their position, or a part of their position agreed to by other Justices -- I think it's terribly clear that Marks held both halves of the Memoirs plurality's biconditional were binding, including that half rejected by the rest of the majority concurring in the Memoirs judgment. So I have to say that your approach to Marks would quite literally overrule Marks, though I think it's the absolutely right approach.

Posted by: Asher Steinberg | Mar 28, 2018 11:44:28 AM

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