Marks All the Way Down, and the Importance of Conceptual Legal Puzzles

I want to say a few things about a cool, conceptual legal puzzle left open by the Supreme Court’s decision last week in Hughes, but also about why pondering cool, conceptual legal puzzles is important – as abstract and inhuman as they are.

I have previously written (on my own blog) about the meta logic of Hughes v. United States.  In Hughes, the Court had an opportunity to decide how lower courts should interpret fractured Supreme Court opinions where no majority agrees on the rationale behind a decision(Here’s an example of the 4-1-4 prior opinion at issue in Hughes.)  According to Marks v. United States, the governing rationale of a case where no majority can agree on the basis for the decision “is the position taken by those Members who concurred in the judgments on the narrowest grounds.”  Of course, the meaning of “narrowest grounds” is unclear, but in Hughes, the Court dodged the meta question of how to interpret “narrowest grounds” by simply garnering a majority for the decision’s reasoning.

Richard Re and the hosts of First Mondays both noted an interesting possibility if the Court does decide to confront the Marks question head on.  What if the Court fractures on how to interpret Marks, such that there is a 4-1-4 opinion on what to do about 4-1-4 opinions?  This could lead to an interesting paradox where accepting one Justice’s opinion as the controlling one would lead to accepting a different Justice’s opinion as the controlling one.

For example, let’s say Justice Sotomayor believed that the “narrowest opinion” is the one proffered by the largest number of Justices concurring in the judgment.  Then, if Justice Sotomayor’s holding about the meaning of Marks is considered the narrowest opinion, her holding is not considered the narrowest opinion – and we would look to how the 4 reasoned through Marks.  Further, if Justices Kagan, Breyer, Ginsburg, and the Chief wrote the plurality holding that the Marks narrowest opinion is the one that commands the most Justices of the Court, including dissents, that reasoning could lead to not accepting their rationale, if one initially accepts their rationale.  It’s just Marks all the way down.

In writing this blog, I pondered whether we should continue to spend much time ruminating on these excellent conceptual legal puzzles, in an era where asylum seekers are being separated from their families, school shootings dominate the news, and the real, practical stakes of our political strife are significant and pressing.  I continue to believe that rule of law requires formal, abstract thinking about cases, divorced from the result.  These sort of puzzles remind us to keep reasoning markedly distinct from result, and they help hone our analytical skills so we can develop a coherent body of law that enhances legal legitimacy.  I’d be interested to hear other thoughts on this issue.

(Cross posted at PrawfsBlawg.)

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