Amicus Curiae Brief — Erik Lindsey Hughes, Petitioner v. United States

Supreme Court briefJan 25, 2018

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No. 17-155

In The

Supreme Court of the United States

____________________

ERIK LINDSEY HUGHES,

Petitioner,

UNITED STATES OF AMERICA,

____________________

Respondent.

On Writ of Certiorari to

the United States Court of Appeals

for the Eleventh Circuit

____________________

BRIEF AMICUS CURIAE OF

CHANTELL AND MICHAEL SACKETT

AND DUARTE NURSERY, INC., IN SUPPORT

OF PETITIONER

____________________

BRIAN T. HODGES

Counsel of Record

ANTHONY L. FRANCOIS

DAMIEN M. SCHIFF

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: bth@pacificlegal.org

Counsel for Amici Curiae Chantell and Michael Sackett

and Duarte Nursery, Inc.

QUESTIONS PRESENTED

This Court explained in Marks v. United States,

430 U.S. 188, 193 (1977), that “[w]hen 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.’” In Freeman v.

United States, 564 U.S. 522 (2011), the Court issued a

fractured 4-1-4 decision concluding that a defendant

who enters into a plea agreement under Fed. R. Crim.

P. 11(c)(1)(C) may be eligible for a reduction in his

sentence if the Sentencing Commission subsequently

issues a retroactive amendment to the Sentencing

Guidelines. But the four-Justice plurality and Justice

Sotomayor’s concurrence shared no common rationale

and the courts of appeals have divided over how to

apply Freeman’s result. The questions presented are:

Whether this Court’s decision in Marks

means that the concurring opinion in a 4-1-4

decision represents the holding of the Court

where neither the plurality’s reasoning nor

the concurrence’s reasoning is a logical subset

of the other.

Whether, under Marks, the lower courts are

bound by the four-Justice plurality opinion in

Freeman, or, instead, by Justice Sotomayor’s

separate concurring opinion with which all

eight other Justices disagreed.

Whether, as the four-Justice plurality in

Freeman concluded, a defendant who enters

into a Fed. R. Crim. P. 11(c)(1)(C) plea

agreement is generally eligible for a sentence

reduction if there is a later, retroactive

amendment to the relevant Sentencing

Guidelines range.

iii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED…………………………… i

TABLE OF AUTHORITIES ...................................... iv

INTEREST OF AMICUS CURIAE ............................ 1

INTRODUCTION AND SUMMARY OF

ARGUMENT ............................................................... 2

ARGUMENT ............................................................... 6

THE CIRCUIT COURTS HAVE MISSED

THE MARK WITH MARKS .......................... 6

II.

RAPANOS ILLUSTRATES HOW

WIDE OF MARKS THE CIRCUIT

COURTS ARE ............................................. 13

III.

JUDICIAL POLICY ON PLURALITIES:

WORKING TOWARD MAJORITIES ......... 32

IV.

THIS COURT’S CLARIFICATION OF

MARKS WOULD GET THE CIRCUIT

COURTS BACK ON TARGET .................... 37

CONCLUSION.......................................................... 40

TABLE OF AUTHORITIES

Page

Cases

A Book Named “John Cleland’s Memoirs of a Woman

of Pleasure” v. Attorney Gen. of Mass.,

383 U.S. 413 (1966) ..................................... 7, 10, 22

AFTG-TG, LLC v. Nuvoton Tech. Corp.,

689 F.3d 1358 (Fed. Cir. 2012) ............................. 34

Ainsworth v. Moffett Eng’g, Ltd., 716 F.3d 174

(5th Cir. 2013) ....................................................... 34

Baldasar v. Illinois, 446 U.S. 222 (1980) ................. 35

Baze v. Rees, 553 U.S. 35 (2008)............................... 33

City of Lakewood v. Plain Dealer Publ’g Co.,

486 U.S. 750 (1988) ............................................... 12

City of Richmond v. J.A. Croson Co.,

488 U.S. 469 (1989) ............................................... 33

Crawford v. Marion Cty. Election Bd.,

553 U.S. 181 (2008) ............................................... 33

Freeman v. United States,

564 U.S. 522 (2011) ........................................... 3, 34

Furman v. Georgia, 408 U.S. 238 (1972) ............. 6, 22

Garland v. Roy, 615 F.3d 391 (5th Cir. 2010)............ 5

Gibson v. American Cyanamid. Co.,

760 F.3d 600 (7th Cir. 2014) ............................ 18-19

Green v. Haskell Cty. Bd. of Comm’rs,

568 F.3d 784 (10th Cir. 2009) ................................. 8

Gregg v. Georgia, 428 U.S. 153 (1976) ........... 6, 12, 33

Grutter v. Bollinger, 539 U.S. 306 (2003) ................ 35

Hawkes Co. v. U.S. Army Corps of Eng’rs,

963 F. Supp. 2d 868 (D. Minn. 2013) .................... 36

In re Medtronic, Inc. Sprint Fidelis Leads Prods.

Liab. Litig., 592 F. Supp. 2d 1147

(D. Minn. 2009)...................................................... 34

In re Packaged Ice Antitrust Litig.,

779 F. Supp. 2d 642 (E.D. Mich. 2011) ................. 34

In re Sealed Case, 722 F.3d 361

(D.C. Cir. 2013)...................................................... 33

J. McIntyre Machinery, Ltd. v. Nicastro,

564 U.S. 873 (2011) ............................................... 34

Johnson v. Bd. of Regents of Univ. of Ga.,

263 F.3d 1234 (11th Cir. 2001) ............................. 21

Kemp v. Medtronic, Inc., 231 F.3d 216, 218

(6th Cir. 2000) ....................................................... 34

King v. Palmer, 950 F.2d 771

(D.C. Cir. 1991)...............................................passim

Lisk v. Lumber One Wood Preserving, LLC,

792 F.3d 1331 (11th Cir. 2015) ........................... 4, 8

Marks v. United States,

430 U.S. 188 (1977) ........................................passim

McDonald v. City of Chicago,

561 U.S. 742 (2010) ............................................... 33

McKinney v. Bayer Corp., 744 F. Supp. 2d 733

(N.D. Ohio 2010).................................................... 34

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ........... 34

N. Cal. River Watch v. Wilcox, 633 F.3d 766

(9th Cir. 2010) ....................................................... 17

Nat’l Fed’n of Indep. Bus. v. Sebelius,

132 S. Ct. 2566 (2012) ........................................... 33

National Association of Manufacturers v. Department

of Defense, No. 16-299 (Jan. 22, 2018) .................. 14

Nichols v. United States,

511 U.S. 738 (1994) ........................................... 7, 35

Northern California River Watch v. City of

Healdsburg, 496 F.3d 993 (9th Cir. 2007) ............ 17

Northern California River Watch v. City of

Healdsburg, 457 F.3d 1023 (9th Cir. 2006) .......... 16

Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 483 U.S. 711 (1987) ........................ 24

Planned Parenthood of Se. Pa. v. Casey,

505 U.S. 833 (1992) ............................................... 33

Planned Parenthood of Se. Pa. v. Casey,

947 F.2d 682 (3d Cir. 1991)................................... 23

Rapanos v. United States,

547 U.S. 715 (2006) ........................................passim

Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) ........................................ 4-5, 35

Rowland v. Washtenaw Cty. Rd. Comm’n,

731 N.W.2d 41 (Mich. 2007).................................... 8

Sackett v. EPA, 566 U.S. 120 (2012) .......................... 1

Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.,

559 U.S. 393 (2010) ............................................... 34

Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188

(9th Cir. 2000) ......................................................... 4

Solid Waste Agency of N. Cook Cty. v. U.S. Army

Corps of Eng’rs, 531 U.S. 159 (2001) .................... 14

vii

Student Public Interest Research Group of New

Jersey, Inc. v. AT&T Bell Labs, 842 F.2d 1436

(3d Cir. 1988) ......................................................... 24

Tyler v. Bethlehem Steel Corp., 958 F.2d 1176

(2d Cir. 1992) ......................................................... 23

United States v. Alcan Aluminum Corp.,

315 F.3d 179 (2d Cir. 2003)..................................... 9

United States v. Bailey, 571 F.3d 791

(8th Cir. 2009) ....................................................... 28

United States v. Carrizales-Toledo, 454 F.3d 1142

(10th Cir. 2006) ....................................................... 8

United States v. Cundiff, 555 F.3d 200

(6th Cir. 2009) .................................................. 26-27

United States v. Davis, 825 F.3d 1014

(9th Cir. 2016) .............................................. 7, 28-30

United States v. Dixon, 687 F.3d 356

(7th Cir. 2012) ......................................................... 4

United States v. Donovan, 661 F.3d 174

(3d Cir. 2011) ..................................................... 4, 28

United States v. Duron-Caldera, 737 F.3d 988

(5th Cir. 2013) ....................................................... 33

United States v. Epps, 707 F.3d 337

(D.C. Cir. 2013)........................................................ 4

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006) ...................... 11, 17-18

United States v. James,

712 F.3d 79 (2d Cir. 2013)..................................... 33

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006).............................passim

viii

United States v. Martino, 664 F.2d 860

(2d Cir. 1981) ........................................................... 4

United States v. Riverside Bayview Homes Inc.,

474 U.S. 121 (1985) ............................................... 30

United States v. Robertson, 875 F.3d 1281

(9th Cir. 2017) ................................................... 7, 31

United States v. Robison, 505 F.3d 1208

(11th Cir. 2007) ..................................................... 25

United States v. Santos, 553 U.S. 507 (2008) ............ 5

United States v. Williams, 435 F.3d 1148

(9th Cir. 2006) ....................................................... 23

Webster v. Reprod. Health Servs.,

492 U.S. 490 (1989) ............................................... 33

Wiesenfeld v. Sec’y of Health, Educ. & Welfare,

367 F. Supp. 981 (D.N.J. 1973) ............................... 8

Williams v. Illinois, 567 U.S. 50 (2012) ................... 33

Other Authorities

Adler, Jonathan H., Reckoning with Rapanos:

Revisiting “Waters of the United States” and the

Limits of Federal Wetland Regulation,

14 Mo. Envtl. L. & Pol’y Rev. 1 (2006) ................. 12

Bednark, B. Andrew, Note, Preferential Treatment:

The Varying Constitutionality of Private

Scholarship Preferences at Public Universities,

85 Minn. L. Rev. 1391 (2001) .................................. 5

Berkolow, Much Ado About Pluralities: Pride and

Precedent Amidst the Cacophony of Concurrences,

and Re-Percolation After Rapanos,

15 Va. J. Soc. Pol’y & L. 299 (2008) ........................ 5

Corley, Pamela C., Uncertain Precedent: Circuit

Court Responses to Supreme Court Plurality

Opinions, 37 Am. Pol. Res. 30 (2009) ................... 32

Eber, Michael L., Comment, When the Dissent

Creates the Law: Cross-Cutting Majorities and the

Prediction Model of Precedent,

58 Emory L.J. 207 (2008) ...................................... 35

Ginsburg, Ruth Bader, Remarks on Writing

Separately, Jurisprudential Lecture at the

University of Washington School of Law

(May 11, 1989), 65 Wash. L. Rev. 133 (1990) ....... 35

Honore, A.M., Note, Ratio Decidendi: Judge and

Court, 71 Law Q. Rev. 196 (1955) ......................... 12

Hopper, M. Reed, Running Down the Controlling

Opinion in Rapanos v. United States (March 10,

2017). University of Denver Water Law Review,

Forthcoming. Available at SSRN:

https://ssrn.com/abstract=2983915....................... 20

Kimura, Ken, A Legitimacy Model for the

Interpretation of Plurality Decisions,

77 Cornell L. Rev. 1593 (1992) ............................... 9

Kornhauser, Lewis A. & Sager, Lawrence G., The

One and the Many: Adjudication in Collegial

Courts, 81 Cal. L. Rev. 1 (1993) .............................. 9

Note, Plurality Decisions and Judicial

Decisionmaking, 94 Harv. L. Rev. 1127 (1981) ...... 7

Powell, Lewis F., Jr., Stare Decisis and Judicial

Restraint, Leslie H. Arps Lecture at the Association

of the Bar of the City of New York (Oct. 17, 1989),

47 Wash. & Lee L. Rev. 281 (1990) ...................... 35

Rehnquist, William H., Remarks on the Process of

Judging, 49 Wash. & Lee L. Rev. 263 (1992) ....... 34

Spriggs, James F., II & Stras, David R., Explaining

Plurality Decisions,

99 Geo. L.J. 515 (2011).................................... 32, 35

Thurmon, Mark Alan, Note, When the Court Divides:

Reconsidering the Precedential Value of Supreme

Court Plurality Decisions,

42 Duke L.J. 419 (1992) .................................... 8, 21

INTEREST OF AMICI CURIAE

Pursuant to Supreme Court Rule 37.3, Chantell

and Michael Sackett and Duarte Nursery, Inc., submit

this brief amicus curiae in support of Petitioner Erik

Hughes. 1 Amici’s interest in this case is in the first

question presented, which may affect how fractured

decisions other than Freeman, such as Rapanos v.

United States, 547 U.S. 715 (2006), are applied by the

lower courts.

Amici Chantell and Michael Sackett are the

plaintiffs in Sackett v. EPA, presently pending, on

remand from this Court, in the U.S. District Court for

the District of Idaho, Case No. 2:08-cv-00185-N-EJL.

The Sacketts are challenging an administrative

compliance order issued by the Environmental

Protection Agency, which directs them to restore a

homesite they own near Priest Lake, Idaho, on the

ground that their property contains navigable waters

for which no dredge and fill permit will be issued

under the Clean Water Act. See generally, Sackett v.

EPA, 566 U.S. 120, 122 (2012). The sole issue in the

Sacketts’ challenge to the compliance order is whether

their property contains federally protected navigable

waters. A key basis on which the EPA defends its

jurisdictional determination is that a putative

wetland on the property meets the definition found in

Justice Kennedy’s concurring opinion in Rapanos. If

Justice Kennedy’s lone opinion is not the holding of

1 All parties have consented to the filing of this brief. No counsel

for any party authored this brief in whole or in part and no

person or entity made a monetary contribution specifically for

the preparation or submission of this brief. No person other than

Amici Curiae, their members, or their counsel made a monetary

contribution to its preparation or submission.

Rapanos under a proper application of Marks, then a

significant legal ground for the EPA’s enforcement

order against the Sacketts would be removed.

Amicus Duarte Nursery, Inc., is a farming

company in California, with an ongoing interest in the

scope of the federal government’s exercise of

regulatory authority over farming practices under the

Clean Water Act. Duarte Nursery is a petitioner in

Washington Cattlemen’s Association v. EPA, pending

in the Sixth Circuit, Case No. 15-4188, which

challenges EPA’s 2015 regulation defining “waters of

the United States” under the Clean Water Act, on the

ground that, inter alia, the regulation exceeds the

statute as interpreted by this Court in Rapanos. See

generally In re: EPA, 803 F.3d 804 (6th Cir. 2015).

Duarte Nursery, Inc., is also a respondent before this

Court in National Association of Manufacturers v.

Department of Defense, Case No. 16-299.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This case presents the Court with an opportunity

to clarify the “narrowest grounds” test used to

interpret fragmented decisions of this Court, as set

out by Marks v. United States, 430 U.S. 188, 193

(1977).

In 2013, the United States charged Hughes

federal drug and firearm offenses. Hughes thereafter

entered, pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C), into a plea agreement, which

the district court accepted. Subsequently, the federal

sentencing guidelines commission lowered the

recommended sentence for Hughes’s charged crimes.

Hughes thereupon asked for a sentence reduction,

relying on a provision of the federal criminal code, 18

U.S.C. § 3582(c)(2), that allows a retroactive reduction

in a sentence if it was “based on” the sentencing

guidelines that were later changed. The central

question in Hughes’s case is whether a sentence based

on a plea agreement also can be considered “based on”

the sentencing guidelines such that Hughes may be

entitled to retroactive relief.

This Court attempted to answer that question in

Freeman v. United States, 564 U.S. 522 (2011), a

plurality decision in which the Court held that the

petitioner was entitled to a sentence reduction, but no

opinion of the Court commanded a majority of the

justices. A four-Justice plurality argued that a Rule

11(c)(1)(C) agreement generally is subject to

retroactive sentencing relief, if the judge’s decision to

accept the agreement was based on the sentencing

guidelines. Justice Sotomayor concurred in the

judgment only. In her view, the availability of

retroactive relief depends not on what the judge

thought or said, but rather on what the Rule

11(c)(1)(C) agreement expressly contemplates. The

lower courts, however, are irreconcilably split on how

to interpret Freeman, because they disagree on how to

interpret split decisions.

The difficulty that lower courts have experienced

interpreting Freeman is reflective of widespread

confusion among the lower courts regarding the

Marks test. Much of that confusion stems from the fact

that, in the four decades since Marks, this Court has

not clarified the criteria for determining the

“narrowest grounds,” or whether such an opinion

exists. 2 Thus, many lower courts interpret Marks as

directing them to search for a single “narrowest”

opinion—even where the putatively “narrowest”

opinion reflects the reasoning of only one of the

Court’s nine members. 3 Other courts find it

inappropriate to give binding effect to portions of an

opinion in which a majority of Justices did not

explicitly or implicitly acquiesce. 4 Still other courts

consider the rationale of dissenting opinions when

striving to find the “narrowest grounds.” 5 Given this,

2 See, e.g., United States v. Martino, 664 F.2d 860, 872 (2d Cir.

1981) (observing that the Supreme Court has not “elaborated on

what was meant by ‘narrowest grounds”’); cf. Lisk v. Lumber One

Wood Preserving, LLC, 792 F.3d 1331, 1337 (11th Cir. 2015) (“For

some issues, asking which of two opinions is narrower is akin to

asking, ‘Which is taller, left or right?”’).

3 See, e.g., United States v. Dixon, 687 F.3d 356, 359 (7th Cir.

2012) (holding that “[e]ven though eight Justices disagreed with

Justice Sotomayor’s approach [in Freeman v. United States, 564

U.S. 522 (2011),] and believed it would produce arbitrary and

unworkable results, her reasoning” was nonetheless controlling

under Marks (citation omitted)); Smith v. Univ. of Wash. Law

Sch., 233 F.3d 1188, 1198, 1200 (9th Cir. 2000) (concluding that

Justice Powell’s opinion controlled in Regents of the Univ. of Cal.

v. Bakke, 438 U.S. 265 (1978), even though “none of the other

Justices fully agreed with Justice Powell’s opinion”).

4 See, e.g., United States v. Epps, 707 F.3d 337, 348 (D.C. Cir.

2013) (concluding that the “narrowest opinion” under Marks

“must represent a common denominator of the Court’s

reasoning” and “must embody a position implicitly approved by

at least five Justices who support the judgment” (emphasis

omitted) (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir.

1991) (en banc)).

5 Compare, e.g., United States v. Donovan, 661 F.3d 174, 182–83

(3d Cir. 2011) (interpreting Marks and subsequent Supreme

Court opinions to require that lower courts “examine the

dissenting Justices’ views to see if there is common ground”

among a majority as to a rationale), with, e.g., King, 950 F.2d at

it is unsurprising to find a series of long-standing

circuit splits on important legal issues resulting from

disagreements regarding the “narrowest grounds”

rule. 6

Amici curiae urge this Court to clarify the Marks

rule. In particular, Amici urge this Court to

emphasize that lower courts may not use dissenting

opinions in determining the narrowest grounds for

judgment; lower courts may not use multiple opinions

supporting the judgment if neither satisfies the Marks

“narrowest grounds” test; lower courts should be

particularly cautious about determining single Justice

opinions to be the holding of a fractured decision; and

lower courts should determine the “narrowest

grounds” for a decision without regard to which

opinion most narrowly constrains government power

and with careful attention to the issue actually

decided by the judgment in the case.

783 (“[W]e do not think we are free to combine a dissent with a

concurrence to form a Marks majority.”).

6 See, e.g., Garland v. Roy, 615 F.3d 391, 402–03 (5th Cir. 2010)

(identifying a four-way circuit split regarding application of

Marks to United States v. Santos, 553 U.S. 507 (2008), and

rejecting all four in favor of a fifth distinct approach); Berkolow,

Much Ado About Pluralities: Pride and Precedent Amidst the

Cacophony of Concurrences, and Re-Percolation After Rapanos,

15 Va. J. Soc. Pol’y & L. 299, 334–44 (2008) (describing a circuit

split regarding the proper application of Marks to the opinions in

Rapanos v. United States, 547 U.S. 715 (2006)); B. Andrew

Bednark, Note, Preferential Treatment: The Varying

Constitutionality of Private Scholarship Preferences at Public

Universities, 85 Minn. L. Rev. 1391, 1398-99 (2001) (identifying

a three-court split as to the controlling opinion in Regents of the

Univ. of Cal. v. Bakke, 438 U.S. 265 (1978)).

ARGUMENT

THE CIRCUIT COURTS HAVE

MISSED THE MARK WITH MARKS

This Court articulated the rule for determining

the controlling rule of law when no single opinion

commands a majority of the members of the Court in

Marks v. United States, 430 U.S. 188 (1977). There,

the Court instructed that the controlling opinion is

that which supports the judgment on the “narrowest

grounds.” 7 Id. at 193. As simple as that rule sounds,

history has shown it to be difficult to apply, resulting

in numerous splits of authority among the lower

courts when interpreting fragmented decisions. 8

7 This rule for interpreting fractured opinions derived from the

Supreme Court’s decision in Gregg v. Georgia, 428 U.S. 153, 169

n.15 (1976). In Gregg, the Court examined Furman v. Georgia,

408 U.S. 238 (1972), which involved a challenge to the

constitutionality of a Georgia death penalty statute. In Furman,

five Justices had agreed in the judgments, but the Court split on

the legal standard that should be applied to death penalty cases:

two concurring Justices felt that capital punishment was

unconstitutional in all cases, whereas the other three Justices

believed that capital punishment was unconstitutional only in

the circumstances presented by the case. Concluding that the

plurality opinion controls, Gregg explained that “Since five

Justices wrote separately in support of the judgments in

Furman, the holding of the Court may be viewed as that position

taken by those Members who concurred in the judgments on the

narrowest grounds . . . .” Gregg, 428 U.S. at 169 n.15.

8 Despite this difficultly, the “narrowest ground” test is the only

rule sanctioned by this Court for interpreting its split decisions.

See Gregg v. Georgia, 428 U.S. at 169 n.15; Furman v. Georgia,

408 U.S. 238 (1972); see also In re Cook, 322 B.R. 336, 341

(Bkrtcy. N.D. Ohio 2005) (“The only approach approved by the

Supreme Court is the ‘narrowest grounds’ approach.”).

United States v. Robertson, 875 F.3d 1281, 1290 (9th

Cir. 2017) (“[r]ecognizing the difficulty that courts

have faced in discerning what the Supreme Court

meant by ‘narrowest grounds’”); United States v.

Davis, 825 F.3d 1014, 1020 (9th Cir. 2016)(“In the

nearly forty years since Marks, lower courts have

struggled to divine what the Supreme Court meant by

‘the narrowest grounds.’”); see also Nichols v. United

States, 511 U.S. 738, 746 (1994) (Marks has “baffled

and divided the lower courts that have considered it.”);

see also Note, Plurality Decisions and Judicial

Decisionmaking, 94 Harv. L. Rev. 1127, 1130 (1981)

(stating that some plurality decisions are

“incomprehensible” to lower courts).

Much of that confusion, however, arises from the

lower courts’ failure to faithfully follow Marks. In

Marks, this Court was asked to determine the

standard applicable to regulations restricting obscene

material. 430 U.S. at 188–90. To answer that

question, the Court turned to its fractured decision in

A Book Named “John Cleland’s Memoirs of a Woman

of Pleasure” v. Attorney Gen. of Mass., 383 U.S. 413,

419, 421 (1966). There, three Justices in the plurality

decided a book was protected from government

regulation if it was otherwise “obscene” but had some

social redeeming value. Id. at 419, 443. Two other

Justices concurred in the judgment, relying on what

the Court called “broader grounds” that the First

Amendment provided an absolute shield against

government action to suppress obscenity. Id. at 421,

424. A sixth Justice concurred in the judgment based

on his view that only hardcore pornography may be

suppressed. Id. at 421. Marks concluded that the

three-Justice plurality was the “narrowest grounds”

for the judgment and the controlling opinion in the

case. 9 430 U.S. at 193-94.

Despite the seeming simplicity of this rule, the

precise manner in which a court is to determine which

opinion rests on the “narrowest grounds,” however, is

subject to widespread confusion. 10 Marks states that

for an opinion to constitute the “narrowest grounds,”

it must be a logical subset of the other opinions

9 Importantly, Marks rejected the common argument that

plurality decisions, by their very nature, have no precedential

effect. See, e.g., Wiesenfeld v. Sec’y of Health, Educ. & Welfare,

367 F. Supp. 981, 988 (D.N.J. 1973); Mark Alan Thurmon, Note,

When the Court Divides: Reconsidering the Precedential Value of

Supreme Court Plurality Decisions, 42 Duke L.J. 419, 420 (1992).

Some state courts still adhere to this view regarding the

precedential significance of their own plurality decisions. See,

e.g., Rowland v. Washtenaw Cty. Rd. Comm’n, 731 N.W.2d 41, 47

n.7 (Mich. 2007) (“[D]ecisions in which no majority of the justices

participating agree with regard to the reasoning are not an

authoritative interpretation under the doctrine of stare decisis.”).

10 Compare, e.g., Green v. Haskell Cty. Bd. of Comm’rs, 568 F.3d

784, 807 n.17 (10th Cir. 2009) (“Given that [Van Orden v. Perry,

545 U.S. 677 (2005),] was decided by a plurality, the separate

opinion of Justice Breyer, who supplied the ‘decisive fifth vote,’ is

controlling under the rule of Marks.” (citations omitted) (quoting

Heideman v. S. Salt Lake City, 348 F.3d 1182, 1198 (10th Cir.

2003))), with, e.g., United States v. Carrizales-Toledo, 454 F.3d

1142, 1151 (10th Cir. 2006) (“In practice, . . . the Marks rule

produces a determinate holding ‘only when one opinion is a

logical subset of other, broader opinions.”’ (quoting King v.

Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc))). Some

circuit courts have even commented on this internal

inconsistency. See, e.g., Lisk v. Lumber One Wood Preserving,

LLC, 792 F.3d 1331, 1337 (11th Cir. 2015) (“[W]e apparently

have taken as many as three different approaches [to the

narrowest grounds rule]—or we at least have articulated our

approach three different ways—when confronting other

fragmented Supreme Court decisions.”).

supporting the judgment: “In essence, the narrowest

opinion must represent a common denominator of the

Court’s reasoning; it must embody a position

implicitly approved by at least five Justices who

support the judgment.” King v. Palmer, 950 F.2d 771,

781 (D.C. Cir. 1991) (en banc) (holding Marks works

only when “one opinion is a logical subset of . . .

broader opinions”); see also, e.g., United States v.

Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir.

2003); Lewis A. Kornhauser & Lawrence G. Sager,

The One and the Many: Adjudication in Collegial

Courts, 81 Cal. L. Rev. 1, 45–48 (1993) (arguing Marks

doctrine only works when concurring rationales “fit []

within each other like Russian dolls”). Put another

way:

The Justices supporting the broader legal rule

must necessarily recognize the validity of the

narrower legal rule. That is, if a statute is

found to be constitutionally permissible

pursuant to a strict scrutiny standard of

review, then it is necessarily permissible

pursuant to a rational basis standard of

review. From the text of the alternative

concurring opinions, it is possible to

determine that if all of the Justices apply the

narrower rule, the outcome would have been

the same.

Ken Kimura, A Legitimacy Model for the

Interpretation of Plurality Decisions, 77 Cornell L.

Rev. 1593, 1603–04 (1992) (footnote omitted). So

viewed, the Marks rule supports the principle of

majoritarianism by ascertaining, where possible, the

narrow legal proposition that is supported by a

majority and that is consistent with the disposition of

the case. See King, 950 F.2d at 781 (“[T]he narrowest

opinion must . . . embody a position implicitly

approved by at least five Justices who support the

judgment.”).

This interpretation of Marks is consistent with

the cases cited therein. Consider, for example, the

three judgment-supportive opinions in Memoirs. The

broadest rationale supporting the judgment in that

case was the opinion of Justices Black and Douglas,

which would categorically ban obscenity prosecutions.

Justice Stewart’s sole concurrence provided a

narrower rule, concluding that only “hardcore

pornography” should be subject to prosecution.

Finally, Justice Brennan’s plurality opinion provided

the narrowest subset by proposing a three-part test to

determine the circumstances when obscenity can be

subject to prosecution. Each of those opinions aligns

in a manner that reflects consensus among the six

concurring Justices regarding the proper application

of their respective rationales. Thus, any obscenity

prosecution deemed impermissible under Justice

Brennan’s plurality opinion would necessarily be

considered impermissible under the more speechprotective rationales endorsed by Justices Stewart,

Black, and Douglas. Without such alignment between

the judgment-supportive opinions, courts risk

elevating the viewpoint of a minority of the Court into

a rule of law.

Marks addressed this risk by recognizing that

there will be times when the “narrowest grounds” test

does not work—i.e., when no opinion is a logical subset

of any other. In that circumstance, there is no rule of

law to be found in the decision, and only the judgment

controls.

When, however, one opinion supporting the

judgment does not fit entirely within a

broader circle drawn by the others, Marks is

problematic. If applied in situations where

the various opinions supporting the judgment

are mutually exclusive, Marks will turn a

single opinion that lacks majority support

into national law. When eight of nine Justices

do not subscribe to a given approach to a legal

question, it surely cannot be proper to endow

that approach with controlling force, no

matter how persuasive it may be.

King, 950 F.2d at 782.

A rule that forced lower courts to glean a

precedential rule of law in such a circumstance would

undermine the judicial process by transferring the

power to establish precedent away from the majority

and toward individual Justices, presumably on the

theory that his or her concurring opinion reflects the

position that a majority of the Court would most likely

have reached on had they been “forced to choose” a

single rationale. See, e.g., United States v. Gerke

Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006)

(interpreting Marks to require “lower-court judges . . .

to follow the narrowest ground to which a majority of

the Justices would have assented if forced to choose”).

Plurality decisions, however, are only made possible

because the Justices are not forced to choose in this

way and have instead chosen not to adopt a single

opinion as the authoritative position of the Court. 11

11 See, e.g., Rapanos v. United States, 547 U.S. at 810 (Stevens,

J., dissenting) (“It has been our practice in a case coming to us

from a lower federal court to enter a judgment commanding that

court to conduct any further proceedings pursuant to a specific

Thus, while a majority may opt to join in a single

rationale, that fact alone does not justify the

suggestion that lower courts must act as if the

majority actually did so.

Importantly, both Marks and Gregg instructed

lower courts to identify the “holding of the Court” by

looking to the “position taken by those [Justices] who

concurred in the judgments on the narrowest

grounds.” Marks, 430 U.S. at 193 (quoting Gregg v.

Georgia, 428 U.S. at 169 n.15). The opinion of

dissenting Justices cannot constitute part of the

logical set supporting the judgment and cannot be

combined with a concurring opinion in order to

formulate a precedential rule of law. See City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750,

764 n.9 (1988) (criticizing the dissenting opinion’s

reliance on a dissenting opinion as inconsistent with

Marks); see also Jonathan H. Adler, Reckoning with

Rapanos: Revisiting “Waters of the United States” and

the Limits of Federal Wetland Regulation, 14 Mo.

Envtl. L. & Pol’y Rev. 1, 14 (2006) (“Nothing in the

dissent constitutes a portion of the judgment of the

Court, so nothing in the dissent” can be “part of the

actual holding of the case” under Marks.); A.M.

Honore, Note, Ratio Decidendi: Judge and Court, 71

Law Q. Rev. 196, 198 (1955) (“[O]pinions of

[dissenting] judges cannot form part of the ratio

decidendi of a case [because] they are not reasons for

the order made by the court . . . .”).

mandate. That prior practice has, on occasion, made it necessary

for Justices to join a judgment that did not conform to their own

views.”).

The below discussion of the lower courts’

inconsistent application of Marks to the plurality

decision in Rapanos illustrates this deeply entrenched

confusion over the “narrowest grounds” and what

portions of a fractured decision may be considered.

Only clarification by this Court will bring an end to

the widening disagreement among the lower courts.

RAPANOS ILLUSTRATES HOW WIDE OF

MARKS THE CIRCUIT COURTS ARE

In Rapanos, the Supreme Court sought to define

the scope of the Clean Water Act (CWA), 12 which

prohibits the discharge of pollutants, including

dredged and fill material, into “navigable waters”

without a federal permit 13 and defines the term

“navigable waters” as “waters of the United States.” 14

Id. at 730–32. The Army Corps of Engineers claimed

the CWA covered the shallow wetlands on John

Rapanos’s Michigan lots. Id. at 729-30. When he

graded the lots for construction, Corps officials cited

Mr. Rapanos for filling “navigable waters” without a

permit in violation of the Act. Id. The district court

found Mr. Rapanos liable because the wetlands on his

property bordered a manmade drainage ditch that

flowed intermittently through a series of conduits to a

navigable-in-fact watercourse miles away. 15 The Sixth

Circuit Court of Appeals upheld the district court on

the theory that any hydrological connection with a

12 Clean Water Act, 33 U.S.C. §§ 1251–1275 (2012).

13 33 U.S.C. § 1344(a) (2012).

14 33 U.S.C. § 1362(7) (2012).

15 See United States v. Rapanos, 190 F. Supp. 2d 1011, 1013

(E.D. Mich. 2002).

traditional navigable water was sufficient for federal

jurisdiction, no matter how slight. 16 In a fractured

decision, this Court reversed the Sixth Circuit,

however, invalidating the Army Corps regulation’s

expansive interpretation of the CWA. Id. at 757; see

National Association of Manufacturers v. Department

of Defense, No. 16-299 (Jan. 22, 2018), slip op. at 4

(Court struck down overbroad regulations in

Rapanos).

Five of the nine Justices agreed the Corps’

regulations exceeded the scope of the Act and that the

agency could not regulate all waters based solely on a

hydrological connection to a downstream navigablein-fact waterway. Chief Justice Roberts observed:

Rather than refining its view of its authority

in light of our decision in SWANCC, 17 and

providing guidance meriting deference under

our generous standards, the Corps chose to

adhere to its essentially boundless view of the

scope of its power. The upshot today is

another defeat for the agency.

Rapanos, 547 U.S. at 758.

Writing for a four-member plurality, Justice

Scalia agreed:

In applying the definition to “ephemeral

streams,” “wet meadows,” storm sewers and

culverts, “directional sheet flow during storm

events,” drain tiles, man-made drainage

ditches, and dry arroyos in the middle of the

16 See United States v. Rapanos, 376 F.3d 629, 642 (6th Cir.

2004). See id. at 639.

17 See Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of

Eng’rs, 531 U.S. 159, 168 (2001) (“SWANCC”).

desert, the Corps has stretched the term

“waters of the United States” beyond parody.

The plain language of the statute simply does

not authorize this “Land Is Waters” approach

to federal jurisdiction.

Id. at 734.

Justices Scalia, Thomas, Alito, and Roberts

determined the language, structure, and purpose of

the CWA limited federal authority to “relatively

permanent, standing or continuously flowing bodies of

water” commonly recognized as “streams, oceans,

rivers and lakes” connected to traditional navigable

waters. Id. at 716, 739. The Scalia plurality would also

authorize federal regulation of wetlands physically

abutting these water bodies, but only if they have a

continuous surface water connection whereby the

wetland

and

water

body

are

literally

“indistinguishable.” Id. at 755.

Although Justice Kennedy joined the plurality in

finding the agency regulations beyond the scope of the

Act, providing a five-member majority in favor of

Mr. Rapanos, he proposed a different standard for

determining “waters of the United States” subject to

federal control under the Act. Under a “significant

nexus” 18 test, the federal government could regulate a

wetland if it significantly affects a navigable-in-fact

waterway. Id. at 780. This excludes from federal

regulation remote drains, ditches, and streams with

insubstantial flows and only speculative evidence of a

“significant nexus.” Id. at 779-81.

The four Justices in the dissent (Stevens, Souter,

Ginsburg, and Breyer) would have granted Chevron

18 Id. at 759 (Kennedy, J., concurring).

deference to uphold the Corps’ regulations, and took

the view that the Act allowed the Corps to regulate

any feature that advanced the statutory goal of

maintaining the “chemical, physical, and biological

integrity of the Nation’s waters.” Id. at 787. (Stevens,

J., dissenting).

Although Rapanos provided a clear majority that

the Corps’ regulatory definition of “waters of the

United States” are invalid, the five prevailing Justices

split four to one on their rationale. Id. at 718.

Consequently, the lower courts must decide the

controlling opinion, if there is one, to determine

whether Rapanos stands for more than the invalidity

of the Corps’ regulations. In putative reliance on

Marks, many circuit courts have either adopted the

lone Kennedy concurrence, or rejected Marks as

unworkable. Other courts have adopted an either/or

test allowing the government to establish federal

jurisdiction under either the Kennedy concurrence or

the Scalia plurality. Still others have adopted the

Kennedy concurrence as a subset of the dissenting

opinion’s rationale.

The following cases demonstrate the depth of

conflict in the lower court’s application of Marks.

Northern California River Watch v. City of

Healdsburg

The Ninth Circuit was the first Circuit Court to

apply Marks to Rapanos. In Northern California River

Watch v. Healdsburg (River Watch I), the court

summarily concluded the Kennedy concurrence was

controlling without further discussion:

Justice Kennedy, constituting the fifth vote

for reversal, concurred only in the judgment

and, therefore, provides the controlling rule of

law. See Marks v. United States, 430 U.S. 188

(1977) (citation omitted), (explaining that

“[w]hen 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

judgment on the narrowest grounds”).

457 F.3d 1023, 1029 (9th Cir. 2006). This summary

disposition adds nothing to an understanding of the

Marks analysis. It is unclear why the Ninth Circuit

concluded the Kennedy concurrence is controlling,

and this conclusion has been drawn into question by

the more recent Ninth Circuit decision in United

States v. Davis, discussed later.

The Ninth Circuit decision on panel rehearing in

Northern California River Watch v. City of

Healdsburg, 496 F.3d 993, 1000 (9th Cir. 2007) (River

Watch II), affirms its decision in River Watch I that

the Kennedy test is controlling, because it is the least

restrictive of federal authority. 19 River Watch II was

issued on panel rehearing from River Watch I,

following the issuance of the Seventh Circuit’s

decision in United States v. Gerke, discussed next.

United States v. Gerke

United States v. Gerke Excavating, Inc. was the

next appellate case to apply Marks to the Rapanos

decision. 464 F.3d 723, 724 (7th Cir. 2006). Gerke was

charged with filling “waters of the United States”

19 But see N. Cal. River Watch v. Wilcox, 633 F.3d 766, 781 (9th

Cir. 2010) (Healdsburg did not foreclose establishing jurisdiction

under the plurality decision as well as the Kennedy concurrence).

without a federal permit under the CWA. Id. at 723.

Gerke challenged the government’s jurisdiction in the

case and petitioned the Supreme Court after losing in

the Seventh Circuit. Id. at 723–24. This Court granted

certiorari and remanded the case in light of Rapanos.

Id. at 724. On remand, the Seventh Circuit held in a

per curiam decision that Justice Kennedy’s concurring

opinion was controlling because: (1) that opinion was

the least restrictive of government authority; and (2)

when joined with the four dissenters, Justice

Kennedy’s opinion made up a majority on the Court.

Id. at 724–25.

To reach that conclusion, however, the Seventh

Circuit misstated the Marks test. According to Gerke:

When a majority of the Supreme Court agrees

only on the outcome of a case and not on the

ground for that outcome, lower court-judges

are to follow the narrowest grounds to which

a majority of the Justices would have

assented if forced to choose.

Id. at 724; but see Marks, 430 U.S. at 193 (The holding

of a plurality opinion “may be viewed as that position

taken by those Members who concurred in the

judgments on the narrowest grounds.”). This

misstatement of Marks allowed the Seventh Circuit to

aggregate the Kennedy concurrence with the four

dissenting Justices to reach a majority. But Marks

does not allow consideration of the dissenting opinions

in a fractured decision like Rapanos.

Later, in Gibson v. American Cyanamid. Co., the

Seventh Circuit revisited its Gerke decision, holding it

had been wrong to count the Rapanos dissent in ruling

on the controlling opinion. 760 F.3d 600, 621 (7th Cir.

2014) (“Of course, Marks itself is binding on us, and

instructs that only those positions of the Justices

concurring in the outcome count in the analysis.”).

Gibson explained that it makes sense to exclude

dissenting opinions because “by definition, the

dissenters have disagreed with both the plurality and

any concurring Justice” as to the outcome as well as

how the governing standard should apply. Id. at 620.

It is very likely, the court said, that if the dissenters

disagree (and are cited) then the lower courts and

litigants “will not have a clear idea on the contours of

the standard and how to apply it in future cases.” Id.

“This is not the way to make binding precedent.” Id.

Accordingly, in Gibson the Seventh Circuit

concluded that its reliance on the Rapanos dissent in

Gerke was dicta and not necessary to the decision.

Gibson, 760 F.3d at 621. Nevertheless, Gibson

affirmed Gerke’s conclusion that Justice Kennedy’s

concurrence in Rapanos was the “narrowest grounds”

and therefore controlling. Id.

Gerke cited no authority for the proposition that

“narrowest grounds” means least restrictive of

government authority. Nor could that standard apply

universally because not all split decisions involve the

government. If Gerke had been true to Marks and

discounted the dissent, it could have found a majority

by looking to the Rapanos plurality as the “narrowest

grounds.” 20 Whenever the plurality would find a

In Rapanos, the plurality thought Justice Kennedy’s

“significant nexus” approach was not much narrower than the

outsized reading the Corps (and the dissent) gave the Act.

“Justice Kennedy tips a wink at the agency, inviting it to try its

same expansive reading again.” 547 U.S. at 756 n.15. And, as

noted above, the dissent opined that “Justice Kennedy’s

jurisdictional water, Justice Kennedy would agree

because the plurality test is a logical subset of Justice

Kennedy’s broader “significant nexus” test. Together,

the four Justices in the plurality and Justice Kennedy

constitute

five-member

majority—without

distorting Marks. See M. Reed Hopper, Running Down

the Controlling Opinion in Rapanos v. United States

(March 10, 2017). University of Denver Water Law

Review,

Forthcoming.

Available

SSRN:

https://ssrn.com/abstract=2983915.

United States v. Johnson

In United States v. Johnson, the government cited

landowners under the CWA for converting wetlands

to cranberry bogs without a federal permit. 467 F.3d

56, 58 (1st Cir. 2006). In defense, the landowners

challenged the government’s statutory jurisdiction.

Id. A split panel of the First Circuit Court of Appeals

upheld federal jurisdiction citing a “hydrological

connection” to navigable waters. Id. Shortly

thereafter, this Court invalidated that basis for

jurisdiction in Rapanos. On remand, the First Circuit

rejected Gerke’s interpretation of Marks and declared

that the trial court could establish federal jurisdiction

under either the Scalia plurality test or the Kennedy

“significant nexus” test. Id. at 66. But this just

exacerbated the confusion over how to apply Marks to

Rapanos.

The First Circuit thought it curious that Gerke

equated “narrowest grounds” with the opinion least

restrictive of federal authority. “Such an equation,”

approach . . . treats more of the Nation’s waters as within the

Corps’ jurisdiction,” and it would be a rare case when the

plurality test is met and the Kennedy test is not. Id. at 754 n.14.

the court stated, “leaves unanswered the question of

how one would determine which opinion is controlling

in a case where the government is not a party.”

Johnson, 467 F.3d at 63. The court found it “just as

plausible to conclude that the narrowest ground of

decision in Rapanos is the ground most restrictive of

government authority (the position of the plurality),”

because, the court concluded, “that ground avoids the

constitutional issue of how far Congress can go in

asserting jurisdiction under the Commerce Clause.”

Id.

In contrast to the Seventh Circuit’s reading of

Marks in Gerke, the First Circuit suggested the

“narrowest grounds” might sensibly be interpreted to

mean the “less far-reaching-common ground,” 21 or the

opinion “most clearly tailored to the specific fact

situation before the Court and thus applicable to the

fewest cases.” See Mark Alan Thurmon, Note, When

the Court Divides: Reconsidering the Precedential

Value of Supreme Court Plurality Decisions, 42 Duke

L.J. 419, 420–21 (1992). Relying on King v. Palmer, 22

the First Circuit noted the D.C. Circuit found “Marks

is workable—one opinion can be meaningfully

regarded as ‘narrower’ than another—only when one

opinion is a logical subset of other, broader opinions.”

Johnson, 467 F.3d at 63. “In other words,” the First

Circuit explained, “the ‘narrowest grounds’ approach

makes the most sense when two opinions reach the

same result in a given case, but one opinion reaches

that result for less sweeping reasons than the other.”

21 Johnson, 467 F.3d at 63 (quoting Johnson v. Bd. of Regents of

Univ. of Ga., 263 F.3d 1234, 1247 (11th Cir. 2001)).

22 950 F.2d at 781.

Id. at 64. According to the First Circuit, Marks

followed this approach.

For examples, the court cited Furman 23 and

Memoirs 24 upon which Marks was based. In Furman,

the First Circuit observed, “the Justices who

concluded that capital punishment was per se

unconstitutional would always strike down future

death penalty sentences,” but the Justices who found

the death penalty unconstitutional only as

administered in Furman “would only strike down

capital sentences in a subset of future capital cases.”

Johnson, 467 F.3d at 64. Likewise, in Memoirs, “two

Justices would always require a ruling in favor of

protecting speech, but the view of three other Justices

that only non-obscene speech is protected would

extend First Amendment protection only to a subset

of such cases.” Id. The First Circuit therefore

concluded the “less sweeping opinion in each case [i.e.,

the opinions that are the logical subset of the other per

se opinions] represents the ‘narrowest grounds’ for the

decision.” Id.

Having concluded that Marks applies only where

one opinion is the subset of another concurring

opinion, the First Circuit then held the understanding

of “narrowest grounds” does not translate easily to

Rapanos: “The cases in which Justice Kennedy would

limit federal jurisdiction are not a subset of the cases

in which the plurality would limit jurisdiction.” Id.

For this reason, the court rejected Gerke’s conclusion

that, under Marks, Justice Kennedy’s lone

concurrence is controlling in Rapanos. Instead, the

First Circuit held the “federal government can

23 See generally Furman, 408 U.S. 238.

24 See generally Memoirs, 383 U.S. 413.

establish jurisdiction over the target sites if it can

meet either the plurality’s or Justice Kennedy’s

standard as laid out in Rapanos.” Id. at 66.

Notably, the First Circuit cited, with approval,

that a number of Circuits have abandoned the Marks

approach to split opinions or applied Marks

selectively. Johnson, 467 F.3d at 64. Instead, those

courts have sought to divine the controlling opinion in

this Court’s fragmented decisions, like Rapanos, by

adopting a so-called “pragmatic” approach to the

situation. Id. This approach involves assessing which

grounds would “command a majority of the Court.” Id.

In Tyler v. Bethlehem Steel Corp., for example, the

Second Circuit concluded: “In essence, what we must

do is find common ground shared by five or more

justices.” 958 F.2d 1176, 1182 (2d Cir. 1992).

Similarly, in United States v. Williams, the Ninth

Circuit held,

[w]e need not find a legal opinion which a

majority joined, but merely “a legal standard

which, when applied, will necessarily

produce results with which a majority of the

Court from that case would agree.”

435 F.3d 1148, 1157 (9th Cir. 2006) (quoting Planned

Parenthood of Se. Pa. v. Casey, 947 F.2d 682, 693 (3d

Cir. 1991)).

The First Circuit in Johnson used similar logic to

justify its determination that federal jurisdiction over

wetlands could be established under either the

plurality test in Rapanos or the Kennedy test: “If

Justice Kennedy’s test is satisfied, then at least

Justice Kennedy plus the four dissenters would

support jurisdiction. If the plurality’s test is satisfied,

then at least the four plurality members plus the four

dissenters would support jurisdiction.” Johnson, 467

F.3d at 64.

The First Circuit also relied on Student Public

Interest Research Group of New Jersey, Inc. v. AT&T

Bell Labs, 25 wherein the Third Circuit examined

Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air 26 to determine the controlling opinion. In

Pennsylvania, the Supreme Court was asked to

address the availability of contingency fees under

federal fee-shifting statutes. 483 U.S. at 714. The

court split along the lines of Rapanos with four

Justices in the plurality, four Justices in the dissent,

and Justice O’Connor’s lone concurrence in the

judgments. Id. at 731. The Third Circuit thus

determined that “[b]ecause the four dissenters would

allow contingency multipliers in all cases in which

Justice O’Connor would allow them, her position

commands a majority of the Court” and is controlling.

Student Pub., 842 F.2d at 1451.

In King v. Palmer, 27 however, the D.C. Circuit

took a different approach. The D.C. Circuit refused to

examine the points of commonality among Justice

O’Connor’s opinion and that of the dissent, relying

mainly on a literal reading of Marks that the holding

is the position of the Justices “who concurred in the

judgments on the narrowest grounds.” 950 F.2d at

783. The D.C. Circuit also relied on the fact that this

Court had not explicitly applied Marks in a way that

would combine concurring and dissenting votes. Id.

25 842 F.2d 1436, 1438–39 (3d Cir. 1988).

26 483 U.S. 711 (1987).

27 950 F.2d 771 (D.C. Cir. 1991).

United States v. Robison

In United States v. Robison, a pipe manufacturer

was convicted for discharging wastewater into a

nearby waterway in violation of its Clean Water Act

discharge permit. 505 F.3d 1208, 1211 (11th Cir.

2007). On appeal, the defendants argued the jury

should have been instructed that the government

must establish jurisdiction based solely on the

Rapanos plurality and not on the Kennedy

concurrence. Id. at 1219. The Eleventh Circuit

rejected Johnson’s either/or approach and adopted the

Gerke holding that the Kennedy opinion was the

“narrowest grounds” and controlling under Marks,

because it was the least restrictive of federal

authority. Id. at 1221–22. The court’s Marks analysis

is instructive, albeit flawed.

First, the court observed it would be a rare case in

which the plurality test is met and the Kennedy test

is not. See id. at 1220. And, “as a practical matter”

such rare cases can be dismissed. Id. This concedes

that the plurality test is a subset of the Kennedy test

and under Marks should control. But the Eleventh

Circuit accepted the Seventh Circuit’s assertion that

the “narrowest grounds” is the opinion least

restrictive of federal authority—a proposition that

finds no support in this Court’s case law. The Eleventh

Circuit did not address how that rule would apply

when the government is not a party and cited no

authority for that interpretation other than Gerke’s

ipse dixit to the same effect.

Second, the Eleventh Circuit rejected the First

Circuit’s reliance on the Rapanos dissent in Johnson.

See Robison, 505 F.3d at 1220–21. After stating that

Marks applies only to “those Members who concurred

in the judgments,” the court acknowledged, “[w]e

simply cannot avoid the command of Marks.” Id. at

1221. Moreover, the court held that dissenters, by

definition, have not joined in the judgment. Id.

Therefore, “[i]n [the court’s] view, Marks does not

direct lower courts interpreting fractured Supreme

Court decisions to consider the positions of those who

dissented.” Id. The court took this one step further,

citing the D.C. Circuit in King v. Palmer: “We do not

think we are free to combine a dissent with a

concurrence to form a Marks majority.” Id. (citing

King, 950 F.2d at 783). “It would be inconsistent with

Marks,” the Eleventh Circuit continued, “to allow the

dissenting Rapanos Justices to carry the day and

impose an ‘either/or’ test, whereby the CWA

jurisdiction would exist when either Justice Scalia’s

test or Justice Kennedy’s test is satisfied.” Id. The

court simply deemed the votes of the dissenters as “of

no moment under Marks.” Id.

United States v. Cundiff

United States v. Cundiff involved landowners who

were held to be in violation of the CWA for dredging

and filling wetlands without a permit. 555 F.3d 200,

204–05 (6th Cir. 2009). The trial court imposed an

injunction against the Cundiffs to restore the property

and assessed a civil fine. Id. at 205. The Cundiffs

challenged federal jurisdiction on appeal arguing the

plurality decision is controlling because it is the most

restrictive of government authority. Id. at 209.

The Sixth Circuit rejected the Cundiffs’ argument

stating “Marks does not imply that the ‘narrowest’

Rapanos opinion is whichever one restricts

jurisdiction the most.” Id. The court also rejected the

“least restrictive of government power” approach

favored in Gerke, River Watch, and Robison. Id. (“[It]

makes little sense for the ‘narrowest’ opinion to be the

one that restricts jurisdiction the least . . . .”). Properly

read, the Sixth Circuit held, the “‘narrowest’ opinion

refers to the one which relies on the least doctrinally

‘far-reaching-common ground’ among the Justices in

the majority: it is the concurring opinion that offers

the least change to the law.” Id. However, the court

did not apply this test to the Rapanos decision.

According to the Sixth Circuit, the controlling

opinions in Memoirs and Furman were “less

doctrinally sweeping” than the other concurring

opinions as adduced by the fact that, in Memoirs, the

controlling opinion disagreed that obscenity laws per

se violate the Constitution, while, in Furman, the

controlling opinion disagreed that the death penalty

was per se unconstitutional. Cundiff, 555 F.3d at 209.

Because of this, the Sixth Circuit concluded Memoirs

and Furman were an easy fit for Marks. Id. However,

the court asserted Marks is problematic if one opinion

does not fit within the broader circle drawn by others.

Id.

Based on this approach, the Sixth Circuit declared

Marks inapplicable to Rapanos because “there is quite

little common ground between Justice Kennedy’s and

the plurality’s conception of jurisdiction under the

Act, and both flatly reject the other’s views.” Id. at

210. Therefore, the court abandoned Marks and

adopted the view of the First Circuit in Johnson that

there is no controlling opinion in Rapanos and the

government can establish jurisdiction under either

the plurality test or the Kennedy test. Id.

Other circuits have adopted the reasoning of the

First Circuit without adding anything to the Marks

analysis. The Eighth Circuit in United States v.

Bailey 28 and the Third Circuit in United States v.

Donovan 29 both adhere to the conclusion and

reasoning in Johnson that Marks cannot be applied to

Rapanos because neither opinion is a subset of the

other; therefore jurisdiction can be established under

the either/or test. Johnson, 467 F.3d at 66. And here

the matter stood until two very recent decisions of the

Ninth Circuit muddied the waters further.

United States v. Davis

The Ninth Circuit’s decision in United States v.

Davis, 825 F.3d 1014 (9th Cir. 2016) (en banc), does

not address Rapanos, but it provides a refined

perspective on Marks, which could be applied to

Rapanos. In Davis, the court examined the 4-1-4

decision in Freeman. To determine the controlling

opinion, the Ninth Circuit started with the statement

in Marks:

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.

Davis, 825 F.3d at 1020.

The court observed that after forty years, the

courts are still struggling “to divine what the Supreme

Court meant by the ‘narrowest grounds.’” Id. As a

28 United States v. Bailey, 571 F.3d 791, 799 (8th Cir. 2009).

29 United States v. Donovan, 661 F.3d 174, 181 (3d Cir. 2011).

result, two approaches have emerged. One is the

reasoning-based approach whereby the court seeks to

determine if there is a common reasoning among the

concurring opinions such that one is a logical subset

of the other, broader opinion. Id. “In essence, the

narrowest opinion must represent a common

denominator of the Court’s reasoning; it must embody

a position implicitly approved by at least five Justices

who support the judgment.” Id. The other approach is

results-based and defines “narrowest grounds” as “the

rule that would necessarily produce results with

which a majority of Justices in the controlling case

would agree.” Id. at 1021. Of the two, the Ninth

Circuit preferred the reasoning-based approach:

To foster clarity, we explicitly adopt the

reasoning-based approach to applying Marks.

This approach is not only consistent with our

most recent case law, [] but also makes the

most sense. A fractured Supreme Court

decision should only bind the federal courts of

appeal when a majority of the Justices agree

upon a single underlying rationale and one

opinion can reasonably be described as a

logical subset of the other. When no single

rationale commands a majority of the Court,

only the specific result is binding on lower

federal courts.

Id. at 1021–22 (citation omitted).

But this approach to Marks did not help the court

define the “narrowest grounds” in Davis. To the

contrary, the court found the concurring opinions

mutually exclusive in most cases; neither the plurality

nor the lone concurrence is a subset of the other.

Davis, 825 F.3d at 1022. Therefore, a standard Marks

analysis does not fit. Although Marks expressly limits

the analysis to concurring opinions, the Ninth Circuit

cited examples where some courts, including the

Supreme Court, had looked to the dissent to find a

majority. Id. at 1024–25 (reserving question of

whether dissents can be consulted, since Freeman

dissent did not change result); see Marks, 430 U.S. at

193. Yet the Davis court determined that even that

approach was unavailing in Freeman because neither

the plurality position nor the lone concurrence is a

logical subset of the dissent, or vice versa. Davis, 825

F.3d at 1025. The court acknowledged some overlap

among the opinions but found no case in which one

opinion would always agree with another. Id.

Accordingly, the court decided Marks could not be

applied: “[s]imply put, no combination of Freeman’s

dissenting and concurring opinions yields a binding

rule that we must follow.” Id.

In the absence of a controlling opinion, the Ninth

Circuit concluded it could choose the opinion it found

most persuasive, limited only by the result in the case

that a defendant relying on a plea agreement is not

categorically barred from taking advantage of a

sentence reduction under the Guidelines. Id. In the

end, the court found the plurality the most persuasive

and applied that opinion to the case. Id. at 1028.

Under the Davis approach, the court must first

determine whether the reasoning of the plurality and

the Kennedy opinion is a logical subset of the other.

Id. at 1016. The plurality in Rapanos reasoned that a

jurisdictional wetland must have the characteristics

of the wetland regulated in Riverside Bayview.

Rapanos, 547 U.S. at 742; see United States v.

Riverside Bayview Homes Inc., 474 U.S. 121, 134–35

(1985). That is, it must be “indistinguishable” from the

abutting waterway, not merely connected. Rapanos,

547 U.S. at 755. Justice Kennedy acknowledged that

such a wetland is subject to federal regulation under

Riverside Bayview. Id. at 765–67; see Riverside

Bayview, 474 U.S. at 134–35. Therefore, the plurality

opinion is a logical subset of the Kennedy opinion. But

the converse is not true. The plurality rejected Justice

Kennedy’s “significant nexus” test where the wetland

is not “indistinguishable” from the abutting waterway

as in Riverside Bayview. Rapanos, 547 U.S. at 753–56;

see Riverside Bayview, 474 U.S. at 134–35. The

Kennedy test is broader than the plurality test for

wetlands such that the Kennedy test encircles the

plurality test in all cases. This is different from

Freeman where the reasoning of the concurring

opinions was not the logical subset of another.

Therefore, under a straightforward application of

Marks as applied by Davis, the plurality opinion in

Rapanos is controlling.

But post-Davis, the Ninth Circuit made quick

work of reaffirming its prior holding in River Watch II

that the Kennedy concurrence controls.

United States v. Robertson

Following its decision in Davis, the Ninth Circuit

addressed whether Davis had undermined River

Watch II in United States v. Robertson, 875 F.3d 1281

(9th Cir. 2017). Appellant Robertson argued that

Davis undermined the Ninth Circuit’s prior decision

in River Watch II, which lacked any of the detailed

Marks analysis called for by Davis. Robertson, 875

F.3d at 1290. The Ninth Circuit held that River Watch

II remained the law of the circuit, on the express

ground that Justice Kennedy’s opinion is a logical

subset of the Rapanos dissent. Id. at 1292 (citing

Gerke’s discussion of the Rapanos dissent). Robertson

thus creates an express circuit split with the D.C.

Circuit’s decision in King v. Palmer, discussed above,

on whether dissents may form the “larger set” for

Marks purposes. See also Robertson, 875 F.3d at

1289–90 (cataloging wide circuit splits on how to apply

Rapanos). 30

III

JUDICIAL POLICY ON PLURALITIES:

WORKING TOWARD MAJORITIES

Although plurality decisions from the Court were

historically rare, they have grown more frequent since

the mid-twentieth century. 31 As many Court watchers

have observed, plurality decisions often occur in cases

involving especially difficult and highly salient legal

issues on which public opinion is sharply divided. 32

Some of the most significant and divisive Supreme

30 When

this Court granted certiorari in this case, the Ninth

Circuit stayed its mandate in Robertson and ordered further

briefing on the effect of this Court’s decision in this case on the

disposition of Mr. Robertson’s case. United States v. Robertson,

No. 16-30178, Dkt # 82 (9th Cir. Dec. 21, 2017).

31 See James F. Spriggs II & David R. Stras, Explaining Plurality

Decisions, 99 Geo. L.J. 515, 519 (2011) (reporting that the

Supreme Court issued only 45 plurality decisions between 1801

and 1955 but issued 195 plurality decisions between 1953 and

2006).

32 See, e.g., Pamela C. Corley, Uncertain Precedent: Circuit Court

Responses to Supreme Court Plurality Opinions, 37 Am. Pol. Res.

30, 32 (2009) (“[P]lurality decisions are important to study

because they tend to occur in highly salient issue areas such as

civil liberties and civil rights.” (citation omitted)); Spriggs &

Stras, supra note 31, at 527 (“[P]lurality decisions tend to occur

in difficult and highly salient cases . . . .”).

Court cases in recent history—involving such issues

as abortion, 33 gun control, 34 voting rights, 35

affirmative action, 36 capital punishment, 37 and the

scope of congressional authority under the Commerce

Clause 38—have been decided by plurality decision. At

the same time, the effects of plurality decisions extend

well beyond such high-profile contexts. The proper

interpretation of plurality precedent also matters for

a variety of less prominent legal issues that

nonetheless carry substantial importance to the

workaday business of the federal courts, such as

33 See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833

(1992); Webster v. Reprod. Health Servs., 492 U.S. 490 (1989).

34 See McDonald v. City of Chicago, 561 U.S. 742 (2010)

(concerning incorporation of the Second Amendment against

state governments).

35 See, e.g., Crawford v. Marion Cty. Election Bd., 553 U.S. 181

(2008) (challenging Indiana’s voter identification law).

36 See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469

(1989) (challenging the constitutionality of racial preferences in

public contracting); Regents of the Univ. of Cal. v. Bakke, 438 U.S.

265 (1978) (challenging racial preferences in higher education).

37 See, e.g., Baze v. Rees, 553 U.S. 35 (2008) (addressing the

permissible methods of capital punishment); Gregg v. Georgia,

428 U.S. 153 (1976) (reaffirming capital punishment’s

constitutionality).

38 See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)

(challenging Congress’s authority to require that certain

individuals either acquire health insurance or pay a penalty).

criminal

procedure, 39

sentencing, 40

personal

jurisdiction,

class certification, 42 and federal

preemption of state law. 43

Recognizing that the government, people, and

courts rely on stability and predictability in the law,

several Justices have expressed concern that the

Court’s plurality decisions leave lower courts and

litigants with insufficient guidance. See, e.g.,

39 See, e.g., United States v. Duron-Caldera, 737 F.3d 988, 994 &

n.4 (5th Cir. 2013) (noting the difficulty of applying the

narrowest grounds rule to discern the Supreme Court’s holding

in Williams v. Illinois, 567 U.S. 50 (2012), regarding whether

particular statements prepared in the course of an investigation

were “testimonial” for purposes of the Sixth Amendment’s

Confrontation Clause); United States v. James, 712 F.3d 79, 9596 (2d Cir. 2013) (noting the same difficulty).

40 See, e.g., In re Sealed Case, 722 F.3d 361, 365 (D.C. Cir. 2013)

(noting the divergence of lower court opinion regarding proper

interpretation of the federal sentencing guidelines resulting from

differing understandings of the Supreme Court’s plurality

decision in Freeman v. United States, 564 U.S. 522 (2011)).

41 See, e.g., Ainsworth v. Moffett Eng’g, Ltd., 716 F.3d 174, 178

(5th Cir. 2013) (applying Marks analysis to the Supreme Court’s

plurality decision in J. McIntyre Machinery, Ltd. v. Nicastro, 564

U.S. 873 (2011)); AFTG-TG, LLC v. Nuvoton Tech. Corp., 689

F.3d 1358, 1363 (Fed. Cir. 2012) (per curiam) (engaging in the

same inquiry).

42 See, e.g., In re Packaged Ice Antitrust Litig., 779 F. Supp. 2d

642, 659-60 (E.D. Mich. 2011) (applying Marks to determine the

holding of the Supreme Court’s plurality decision in Shady Grove

Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393 (2010));

McKinney v. Bayer Corp., 744 F. Supp. 2d 733, 746–47 (N.D. Ohio

2010) (engaging in the same analysis).

43 See, e.g., Kemp v. Medtronic, Inc., 231 F.3d 216, 218, 224 & n.1

(6th Cir. 2000) (applying Marks to determine the precedential

effect of the Supreme Court’s plurality decision in Medtronic, Inc.

v. Lohr, 518 U.S. 470 (1996)); In re Medtronic, Inc. Sprint Fidelis

Leads Prods. Liab. Litig., 592 F. Supp. 2d 1147, 1151 n.4 (D.

Minn. 2009) (parsing the same opinion).

William H. Rehnquist, Remarks on the Process of

Judging, 49 Wash. & Lee L. Rev. 263, 270 (1992)

(“There must be an effort to get an opinion for at least

a majority of the Court in every case where that is

possible, in order that lower court judges and the

profession as a whole may know what the law is

without having to go through an elaborate headcounting process.”); Judge Ruth Bader Ginsburg,

Remarks on Writing Separately, Jurisprudential

Lecture at the University of Washington School of Law

(May 11, 1989), 65 Wash. L. Rev. 133, 148 (1990)

(describing the “proliferation” of decisions without a

clear majority as “unsettling”); Justice Lewis F.

Powell, Jr., Stare Decisis and Judicial Restraint,

Leslie H. Arps Lecture at the Association of the Bar of

the City of New York (Oct. 17, 1989), 47 Wash. & Lee

L. Rev. 281, 289 (1990) (“Splintered decisions provide

insufficient guidance for lower courts . . . [and]

promote disrespect for the Court as a whole . . . .”).

And similar reservations regarding the workability of

the Marks framework itself have found their way into

the Court’s opinions E.g., Nichols v. United States, 511

U.S. 738, 745–46 (1994) (noting difficulties lower

courts had encountered in seeking to apply Marks to

the Court’s fractured opinion in Baldasar v. Illinois,

446 U.S. 222 (1980), and concluding that “[w]e think

it not useful to pursue the Marks inquiry to the utmost

logical possibility when it has so obviously baffled and

divided the lower courts which have considered it”);

accord Grutter v. Bollinger, 539 U.S. 306, 325 (2003)

(reaching a similar conclusion regarding lower courts’

interpretation of Regents of the Univ. of Cal. v. Bakke,

438 U.S. 265 (1978)).

The discussion of Rapanos provides a vivid

example of the adverse impacts that uncertainty and

unpredictability have on the public. See Spriggs &

Stras, supra note 31, at 529 (“Clear, understandable

precedent is necessary to ‘reduce [] transaction costs

and wasted judicial effort, and encourage[] like cases

to be treated alike—the bedrock of equality and

fairness.’” (quoting Michael L. Eber, Comment, When

the Dissent Creates the Law: Cross-Cutting Majorities

and the Prediction Model of Precedent, 58 Emory L.J.

207, 233 (2008))).

Inconsistency and unpredictability in the law is

harmful to the public interest in that it promotes ad

hoc governance. Take, for example, the First Circuit’s

conclusion in United States v. Johnson that the

government can establish CWA jurisdiction by

satisfying either the Kennedy or the Scalia plurality

test. In Hawkes v. United States, 44 the Army Corps of

Engineers issued a Jurisdictional Determination

asserting federal jurisdiction based on the Scalia

plurality test. 45 When the landowners challenged the

determination in an administrative setting, the Corps

changed tactics, asserting for the first time that the

wetlands at issue were subject to federal control under

the Kennedy “significant nexus” test, which burdened

the landowners with unnecessary delay and

expense. 46 An interpretation that allows agencies and

courts to follow two different legal tests creates

uncertainty among the regulated public and legal

practitioners. It also allows the government to play

legal games with alleged violators of the CWA. This

44 Hawkes Co. v. U.S. Army Corps of Eng’rs, 963 F. Supp. 2d 868

(D. Minn. 2013).

45 Id. at 871.

46 Id.

Court’s clarification of Marks is necessary to protect

against the risk of arbitrary and ad hoc governance.

THIS COURT’S CLARIFICATION

OF MARKS WOULD GET THE

CIRCUIT COURTS BACK ON TARGET

This Court could substantially reduce the

confusion that attends the lower courts’ efforts to

apply cases like Freeman and Rapanos by clarifying

Marks, based on the above discussed shortcomings in

how Marks is currently applied.

First, this Court should hold that dissenting

opinions in its decisions may not be used as the “larger

set” in identifying the narrowest grounds under

Marks. For all the reasons stated above, including the

text of the Marks decision, only those opinions

supporting the judgment of this Court should be

canvassed to determine the holding of a fractured

decision.

Second, this Court should hold that when

applying Marks, the result is either that one opinion

supporting the judgment is the holding, or that none

are. As discussed above, cases like United States v.

Johnson, which state that both the plurality or the

concurrence in Rapanos are the holding of the case, fly

directly in the face of Marks’ charge to identify the

narrowest ground for the decision. If a four Justice

plurality is a narrower decision than a single Justice

concurrence, than the plurality is the holding under

Marks. But logic prevents each from being narrower

than the other. If each opinion nested completely

within the other, they would not be separate opinions.

This Court should admonish lower courts to identify

the narrowest grounds, if possible, which can only

yield one opinion, or none, as the holding under

Marks.

Third, this Court should caution lower courts

against adopting single-Justice opinions as the

holding of the Court under a Marks analysis when

that opinion is expressly critiqued by all the other

members of the Court. The circuit courts may do this

in two contexts. First, the lower court might consider

a single opinion to be the narrowest ground

supporting the judgment. But a single opinion whose

methodology or conclusions are strongly criticized by

the plurality is unlikely to be a logical subset of the

plurality (particularly where the concurrence is

conceptually closely related to the dissent). And

opinions criticized by the other eight Justices, but

which nonetheless are taken by the lower courts as the

holding of a case, stand the institution of a

majoritarian Supreme Court on its head.

Alternatively, a lower court might conclude under

Marks that a decision has no holding, and wish to

adopt a single-Justice concurrence as the “most

persuasive” opinion. But the notion of the lower

appellate courts determining that a single-Justice

opinion, which persuaded no other member of this

Court, is nonetheless the law of the land because it is

the most persuasive, raises the level of irony in the

Marks exercise to dangerous levels.

Fourth, this Court should instruct lower courts to

disregard whether opinions constrain government

power more or less when applying Marks. As noted

above, this question has no bearing on cases in which

the government is not a party. It is entirely unclear

why the government, of all parties, should benefit

from such a finger on the scales of justice. It is also

entirely inconsistent with the federal judiciary’s

responsibility to protect the individual liberties of this

nation’s citizens from government overreach. Further,

such an approach makes even less sense when one

considers that many statutes which this Court

construes (such as the Clean Water Act) can be

enforced either privately or by the government. Are

lower courts to say that for private enforcement of the

Clean Water Act, the Rapanos plurality is the holding,

but that the concurrence is controlling when the

government enforces?

Fifth, this Court could guide lower courts in their

application of Marks by focusing their attention more

closely on the specific question being answered in

fractured decisions. While this may continue to yield

elusive results in constitutional cases, it should prove

fruitful in cases of statutory interpretation. In

particular, this Court could hold that when one of its

fractured decisions involves interpretation of a federal

statute, then lower courts are to look to the narrowest

interpretation of that statute among the opinions

supporting the judgment.

Finally, this Court could instruct lower courts to

be more content with “half-a-holding”: in some

decisions there is a clear level of agreement among a

plurality and a concurrence which could prove helpful

in many if not all cases. For example, in a statutory

interpretation case like Rapanos, the lower courts

should focus on the fact that both the plurality and the

concurrence interpret the phrase “waters of the

United States” as part of the statutory text, and

conclude that the agency regulations interpreting the

same text are too broad and therefor invalid. Five

Justices voting that a particular regulation is invalid

(especially where, as in Rapanos, the dissent would

have upheld the regulation under Chevron deference)

is a significant result which lower courts can easily

apply in particular cases, despite the lack of

agreement on why they are invalid.

CONCLUSION

This Court should clarify Marks as described

above, to improve uniformity in the Circuit Courts

where this Court cannot reach a majority, and to raise

this Court’s incentives for majority decisions.

DATED: January, 2018.

Respectfully submitted,

BRIAN T. HODGES

Counsel of Record

ANTHONY L. FRANCOIS

DAMIEN M. SCHIFF

Pacific Legal Foundation

930 G Street

Sacramento, California 95814

Telephone: (916) 419-7111

E-mail: bth@pacificlegal.org

Counsel for Amici Curiae Chantell and Michael Sackett and

Duarte Nursery, Inc.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.