I am of the understanding that in Marks v. United States, 430 U.S. 188 (1977), the Supreme Court has the following procedure in place:

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.

What does the "narrowest grounds" mean in this case? Who is responsible for making this decision? What if there is disagreement among the Justices as to which interpretation is, in fact, the "narrowest" interpretation?

1 Answer 1


When Marks is relevant

The Marks rule is direction from the Supreme Court to lower court judges as to how to deduce the controlling position when the Court itself can't come to a majority position. When a majority of justices agree in the outcome of a case, but not on the law that gets them there, the Marks rule comes into play to determine what reasoning should be followed by lower courts.

An example

I'll explain with an example that was at the center of the appeal in Hughes v. United States (2018).

The issue arose in Hughes because lower courts did not know how to deal with the 4-1-4 split in Freeman (2013). The Marks rule says to look at the positions of the members that concurred in the outcome. In Freeman, there were two positions that together accounted for the outcome: that of four justices (written by Justice Kennedy) and that of Justice Sotomayor, in a solo concurrence. Her position was arguably decided on a "narrower" ground. However, neither the Kennedy plurality nor the Sotomayor concurrence was a logical subset of the other. Justice Sotomayor was not merely agreeing with some but not all of the plurality's reasoning. She came to the same conclusion, but based on a different understanding of the law. Yet some circuits were treating Justice Sotomayor's concurrence in Freeman (with which no other justice had agreed) as the controlling opinion. This is apparently what Marks required.

Marks has always been confusing

The Marks rule has been a source of confusion in the jurisprudence and academia ever since it was announced. It was not reasoned nor explained by the Court when it was announced. It hasn't been reasoned or explained by the Court since. To the extent that the Marks rule has arguably clear application, it is in cases where the various reasons for judgment of the Court form a "logical subset" or "common denominator" structure. But many times, the reasons don't relate to each other that way (e.g. Freeman). There is sometimes no identifiable "narrowest ground" in that sense, and even where there is, it reflects a minority position of the court: one that none of the other justices agreed with.

The Re brief in Hughes

Professor Richard M. Re filed an amicus brief in Hughes v. United States (2018) on the topic of the Marks rule arguing that the Marks rule should be abandoned and replaced with the following:

A precedent of this Court should form only when most Justices expressly agree on a rule of decision.

Re notes that the Marks rule "applies precisely when this Court issues a decision that lacks any majority agreement on a rationale." He argues that "there is no persuasive reason to treat views that lack majority support as binding, nationwide precedents."

The Court itself has said the Marks rule is "easier stated than applied." And the Court has never attempted to explain the rule since. Re cites his own paper, "Beyond the Marks Rule" which he says further shows the rule has "defined consistent application by lower courts." At page 16 of the brief, he describes circuit splits that have developed over an attempt to apply the Marks rule to the reasons of the Court.

Hughes gave us no answer

Both parties in Hughes presented alternatives to the Marks rule. It was discussed extensively at oral argument. Counsel for the petitioner acknowledged that, "Whatever guidance Marks may have provided, it's probably caused more confusion than -- than guidance." The arguments contained analogies to Venn diagrams and Russian nesting dolls. Ultimately, the Court in Hughes found it unnecessary to resolve the "proper application of Marks." Despite granting certiori to address those questions, they were able to resolve the case by skipping directly to the the merits of the substantive question about sentencing.

Ramos did not clarify things

In Ramos v. Louisiana, 590 U.S. ___ (2020) some members of the Court commented on what Marks might mean. Ironically, the Court in Ramos itself was split without a majority on the meaning of Marks. Justice Gorsuch, writing for three on this issue, said that Marks in fact does not ever result in a single justice's opinion becoming the controlling position. He presented this example:

Suppose we face a question of first impression under the Fourth Amendment: whether a State must obtain a warrant before reading a citizen's email in the hands of an Internet provider and using that email as evidence in a criminal trial. Imagine this question splits the Court, with four Justices finding the Fourth Amendment requires a warrant and four Justices finding no such requirement. The ninth Justice agrees that the Fourth Amendment requires a warrant, but takes an idiosyncratic view of the consequences of violating that right. In her view, the exclusionary rule has gone too far, and should only apply when the defendant is prosecuted for a felony. Because the case before her happens to involve only a misdemeanor, she provides the ninth vote to affirm a conviction based on evidence secured by a warrantless search.

This is a 4-1-4 split, in which the solo Justice holds the arguably narrowest grounds of decision, one which would be overruling precedent in this hypothetical. Justice Gorsuch says though that Marks "never sought to offer or defend" a rule that "a single Justice's opinion can overrule prior precedents."

Justice Kavanaugh, writing in concurrence, but not agreeing with Justice Gorsuch on his Marks point, said that the Marks rule is "ordinarily commonsensical to apply and usually means that courts in essence heed the opinion that occupies the middle-ground position between (i) the broadest opinion among the Justices in the majority and (ii) the dissenting opinion." He noted that the members of the Court in Ramos had notably differing opinions about how to apply Marks to Apodaca: "six Justices treat the result in Apodaca as precedent for purposes of stare decisis analysis. A different group of six Justices concludes that Apodaca should be and is overruled."

The dissent in Ramos, written by Justice Alito, was of the view the Marks applied to the ruling in Apodaca and that it produced precedential value that the Justice Gorsuch majority was ignoring. The dissent said that Marks clearly stands for the proposition that "the position taken by a single Justice in the majority can constitute the binding rule for which the decision stands."

Further reading

If you're really interested in this, I suggest reading Richard Re's brief and his article, read the parties' briefs in Hughes (petitioner's, respondent's, petitioner's reply), and listen to the oral argument.


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