Cal. Litig. 2018, Volume 31 Number 2

Left at the Altar: SCOTUS Promises to Clarify its Cryptic Marks Rule for Divining the Precedential Impact of Plurality Decisions — But Doesn’t

By Thomas R. Freeman

There has long been confusion over the precedential impact of fractured United States Supreme Court rulings where a majority of Justices agree on the judgment, but not on the reasons for it. Although the Supreme Court in Marks v. United States (1977) 430 U.S. 188, articulated a legal standard for deriving the binding rule laid down in such "plurality" rulings, that standard (the "Marks rule") has "baffled and divided the lower courts that have considered it." (Nichols v. United States (1994) 511 U.S. 738, 746.) The lack of uniformity in applying Marks has led to disparate interpretations of plurality decisions on many "hot button" issues, including abortion, gun control, voting rights, affirmative action, capital punishment, obscenity, water pollution, and the scope of congressional authority under the Commerce Clause. (See Williams, Questioning Marks: Plurality Decisions and Precedential Constraint (2017) 69 Stan.L.Rev. 795, 799-800 (hereafter Questioning Marks).)

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The inherent ambiguity of the cryptic Marks rule is a greater problem now than ever before because lower courts have relied on Marks with increased regularity over the past 20 years. (See Re, Beyond the Marks Rule (forthcoming 2018) 132 Harv.L.Rev. __ (hereafter Beyond the Marks Rule)) Nor is the Marks rule’s influence confined to the interpretation of U.S. Supreme Court plurality decisions. California courts have applied the Marks rule to plurality opinions of the California Supreme Court and the Courts of Appeal. (E.g., People v. Villalpando (Sept. 8, 2015) 2015 WL 5231992, *12 fn. 7 [construing Justice Baxter’s concurrence in People v. Rodriguez (2012) 55 Cal.4th 1125, as authoritative because he concurred with the plurality on the narrowest grounds]; Stand-Up for California! v. State (2016) 6 Cal.App.5th 686, 772-773 (Franson, J., concurring and dissenting) [advising trial court to apply the Marks rule to determine which of three separate opinions in the plurality ruling is binding precedent].)

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