Plurality Decisions in the Supreme Court of the United States: A Reexamination of the Marks Doctrine after Rapanos V. United States

Article excerpt

"First thing I want you kids to learn is how to count to five." (1)


Although the Supreme Court of the United States almost never has trouble counting to five with respect to the ultimate disposition of a case, (2) the Court often stumbles when attempting to agree on the appropriate rationale. (3) If not resolved, this disagreement will lead to the Court's announcing a plurality decision. (4) The Court has handed down a steadily increasing number of plurality decisions throughout its history. (5) Commentators have suggested a number of factors that might account for this increase, including ideological splits among the Justices, (6) an increasingly heavy workload, (7) more cases presenting socially volatile issues, (8) a lack of leadership on the Court, (9) and an increase in "substantive" reasoning in the Court's decisions. (10) Whatever the root causes might be, plurality decisions have become an undeniable part of the Supreme Court's jurisprudence. (11)

Given this observation, many commentators have called attention to the obvious problems that plurality decisions create. (12) Plurality decisions provide lower courts and litigants with very little guidance as to the state of the law. (13) Even more troubling is that plurality decisions can erode public confidence in the Supreme Court, as a result of the Court's inability to render authoritative decisions. (14) Not surprisingly, many of these critics argue that the Court must do more to produce opinions that achieve majority consensus. (15)

Nevertheless, several commentators have argued that plurality decisions are not without value. (16) For example, when the Justices fundamentally disagree about a legal principle, it might be best for them to express their individual views and not to "insist on superficial agreement." (17) First, this practice can actually provide increased guidance to lower courts and litigants because it reveals a position that might eventually prevail. (18) Second, both the Justices and lower courts are freer to indulge "innovative and creative" solutions to novel legal issues after a plurality decision than they would be after a majority decision. (19) Since plurality decisions are accorded a lower degree of stare decisis value within the Court, (20) the Justices can continue to explore new rationales until one achieves majority support. (21) Similarly, lower courts have more opportunity to distinguish future cases and develop alternative rationales. (22) This process of "issue percolation" in the lower courts can be helpful to the Supreme Court the next time it confronts the issue. (23)

The normative value of plurality decisions aside, they have become a conspicuous part of the Supreme Court's jurisprudence. (24) Consequently, the Supreme Court articulated a rule for interpreting plurality decisions in Marks v. United States. (25) The Marks Court announced: "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds....'" (26) While this rule--called the "Marks doctrine" or "narrowest grounds doctrine" (27)--resolved some of the interpretive problems unique to plurality decisions, (28) it has proved to be "more easily stated than applied," (29) and has created disagreement among courts and commentators about when and how the rule should apply. (30)

Accordingly, this Note explores the narrowest-grounds doctrine in an attempt to resolve some of the conflict and confusion that Marks has engendered. (31) This Note begins by addressing the factors that prompted the Supreme Court to pronounce an interpretive rule for plurality decisions. (32) After discussing Marks v. United States, (33) this Note examines two competing approaches to the Marks doctrine. (34) Part II.C.1 describes the conventional approach, which views the Marks doctrine as an application of the principle of majoritarianism to Supreme Court plurality decisions. …