Plurality Decisions: Upward Flowing Precedent and Acoustic Separation

Abstract

Beginning in 1977, the U.S. Supreme Court instructed lawyers and lower courts that when there is no majority decision “in support of the judgment . . . , the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” For decades, commentators and judges alike have vocally lamented the opaque and seemingly intractable nature of this instruction, known as the Marks rule. The usual academic trope in this field consists of a discussion of a recent plurality decision, followed by an account of how difficult it is to discern the narrowest grounds for that decision, and concluding with a statement about how the lack of clarity as to the relevant precedent impedes the Court’s lawmaking function and diminishes the Court’s credibility with the public. By contrast, this article provides a new framework for understanding plurality precedent. Rather than emphasizing the problems presented by uncertain precedent under the narrowest grounds test, this article highlights the effectiveness of the rule in simultaneously maintaining judicial credibility with the public while facilitating flexibility for lower court judges. That is to say, this article celebrates the Marks rule’s success in establishing an acoustic separation between the rule as it is transmitted to lower court judges, and the rule as it is understood by the public. The external message reassures society that there has been no breakdown in the judicial process when a plurality occurs, and the internal, decisional rule is that in the absence of lower court consensus, there is no plurality precedent. In short, Marks effectively reconciles the competing interests of public legitimacy and legal flexibility.