By David McAleer, ACLR Featured Blogger
Though plurality decisions have existed throughout Supreme Court history, they have risen steadily over the years. Moreover, splintering has become the product of ideological differences, and in some cases may not be about the substantive legal question under consideration at all. The Supreme Court attempted to provide guidance to lower courts on how to determine precedent within such decisions in Marks v. United States, 430 U.S. 188, 193 (1977). Marks held, in the case of a fragmented decision supporting a holding, with no single rationale explaining the result, that “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds” (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, (1976) (opinion of Stewart, Powell, and Stevens, J.J.)) Since 1977, this has become controlling precedent, applied by most circuits when deciding similar cases.
Aside from creating confusion in a specific area of law—contrary to the Court's purported role of providing guidance on difficult questions—splintered decisions may undermine public confidence in the Supreme Court and the legal system as a whole. Some important cases which have resulted in unclear precedent include: NFIB v. Sebelius, 132 S.Ct. 2566 (2012) (upholding the individual mandate of the ACA under the Federal taxing power, but splintering on several sub-issues); Rapanos v. United States, 547 U.S. 715 (2006) (4-1-4 split decision, creating two competing tests for “navigable waters of the United States” under Clean Water Act); andAsahi Metal Indus. Co., v. Superior Court, 480 U.S. 102 (1987) (creating several competing “stream of commerce” tests for determining personal jurisdiction in splintered opinions).
The rationale behind the Marks test has been debated, but can generally be seen as either a fact-specific limitation or a rule to be applied when the narrowest decision is a logical subset of the competing opinions. The first view treats the precedential power of a decision as a factual question: “Given the specific facts of our case, how would the Supreme Court rule?” This has the practical effect of providing guidance to lower courts that result in opinions less likely to be overturned—thus pointing toward more settled law. Asahi has often been understood along these lines (prior to a recent opinion, J. McIntyre Mach. Ltd. v. Nicastro, 131 S.Ct. 2780 (2011)).
The second view is a philosophical justification that assumes the “narrowest” opinion encapsulates the specific issue which will be the tipping point that convinces enough Justices to create a majority. But this relies on an assumption that there is really only one issue or point of debate in the splintered opinion, or at least that the Justices can be arranged along a continuum. The decision in Rapanos, as applied by the majority of circuits, can be seen in this vein.
However, all three of the cases I've mentioned actually suffer from a major shortfall in the Marksrationale. The Justices don't agree on the issues at stake, and the bases of their opinions differ from each other. Furthermore, the issue on which the court is divided is not necessarily the same as the issue on which the plurality agrees. Sebelius is a concrete example of the result of multiple issues at stake within one decision, especially when we are looking for guidance on those multiple issues from the same splintered opinion.
A recent decision by the D.C. Circuit provides an example of the kind of difficulty faced by courts applying Marks, and the injustice that can result in criminal cases. United States v. Duvall, No. 10-3091, 2013 U.S. App. LEXIS 1658 (D.C. Cir. Jan. 25, 2013) In 2009, David Duvall was charged with conspiracy to distribute crack cocaine. Because he had two prior drug convictions, Duvall was facing a mandatory life sentence if found guilty. He negotiated a plea agreement with the government that included an agreed-upon sentence of 14 years, which the court accepted. Under Federal Rule of Criminal Procedure 11(c)(1)(C), once the court accepts a plea agreement, it is bound to any explicitly agreed upon sentence or sentencing range contained in that plea. The court must calculate and consider the applicable sentencing range which a guilty verdict would entail absent a plea agreement, and then may accept or reject the plea agreement in total, but must allow the defendant to withdraw his plea before imposing a sentence inconsistent with the agreement. The court accepted Duvall’s agreement, and imposed the agreed sentence of fourteen years.
However, effective November 2011, the U.S. Sentencing Commission amended the guidelines for crack-related offenses, making the change retroactive. See U.S. Sentencing Guidelines Manual app. C, amend. 750, 759 (2011). Under 18 U.S.C. § 3582(c)(2), sentencing guideline changes provide a basis for a court to reduce previously imposed terms of imprisonment, if that sentence was “based on” the sentencing guidelines. So the majority considers whether a sentence agreed to by plea is based on the guidelines or not. Based on a 4-1-4 split Supreme Court decision in Freeman v. United States, 131 S. Ct. 2685 (2011), the Ninth Circuit determined that a sentencing agreement is only based on the guidelines when the guidelines are referenced as the explicit basis in the agreement, or otherwise “evident from the agreement itself.” Here, because the plea agreement simply listed the agreed-on term of fourteen years without stating that this was based on the sentencing guidelines, Duvall’s sentence was not reduced pursuant to the change in the guidelines. This reasoning clearly followed Justice Sotomayor's individual opinion in Freeman, which all parties agreed was binding as the narrowest.
Senior Circuit Judge Williams, concurring in the judgment, undertook a markedly different line of reasoning. He first pointed out that Justice Sotomayor was actually alone in her opinion. In Freeman, four Justices believed that § 3582(c)(2) would permit a district judge to revisit sentencing to “whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or approve the agreement.” Four Justices preferred a categorical bar for any reduction following a Rule 11(c)(1)(C) agreement, taking the opinion that the sentence was necessarily based on the plea agreement, and not the sentencing guidelines. Justice Sotomayor alone undertook an analysis that considered the intent of the parties in creating the plea agreement, concluding that the intent of the agreeing parties should in effect control the understanding of the sentence. Judge Williams felt that this difference in analysis was the decisive factor separating Justice Sotomayor’s opinion from the opinions of the other eight other Justices, and that her analysis was incorrect because the question should not be the parties' intent, but the decision and sentencing of the court. Thus, Justice Sotomayor's opinion is not a subset of the plurality opinion when viewed from this perspective.
Duvall was subject to mandatory life in prison, absent the plea agreement. Under Due Process, no one should suffer criminal prosecution merely because they are reasonably unable to understand what conduct is prohibited under the law. The rule of lenity states that ambiguity in criminal statutes should be resolved in favor of the defendant. Here Judge Williams pointed out that, prior to the ruling in Freeman, and then only under the understanding that Justice Sotomayor's opinion was controlling, there was no reason for parties to a plea agreement to worry about including any specific language within the agreement. In relation to the justice of following that lone opinion as precedent, he says:
I do not believe United States courts should close the door on a man's chance at release from prison on the basis of a framework (1) that eight out of nine justices of the Supreme Court have squarely rejected, and (2) that depends on the talismanic presence of special words in a plea agreement.