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

No. 17-155

In the Supreme Court of the United States

ERIK LINDSAY HUGHES,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Eleventh Circuit

BRIEF AMICUS CURIAE FOR AGRICULTURAL,

BUILDING, FORESTRY, LIVESTOCK, MANUFACTURING, MINING, AND PETROLEUM BUSINESS

INTERESTS IN SUPPORT OF PETITIONER

MICHAEL B. KIMBERLY

JOHN T. LEWIS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3127

TIMOTHY S. BISHOP

Counsel of Record

Mayer Brown LLP

71 South Wacker Drive

Chicago, Illinois 60606

(312) 782-0600

tbishop@mayerbrown.com

Counsel for Amici Curiae

[Additional counsel listed on signature page]

TABLE OF CONTENTS

Page

Table of Authorities.................................................... ii

Interest of the Amici Curiae .......................................1

Introduction and Summary of Argument...................5

Argument.....................................................................8

The Fractured Rapanos Decision Offers A

Case Study That Should Inform The

Court’s Approach In This Case..............................8

A. Justice Kennedy’s concurrence in

Rapanos is not controlling..............................10

B. Justice Stevens’s dissenting opinion in

Rapanos is not entitled to any weight. ..........17

C. Courts should give weight to those

conclusions shared by the plurality and

concurring opinion in Rapanos. .....................19

1. Applying both opinions. ............................20

2. Finding points of agreement.....................21

3. Treating all of the majority opinions

as persuasive authority.............................24

D. Other common law jurisdictions agree

with the approaches we have proposed. ........25

Conclusion .................................................................28

ii

TABLE OF AUTHORITIES

Page(s)

Cases

A Book Named “John Cleland’s Memoirs

of a Woman of Pleasure” v. Attorney

General of Massachusetts,

383 U.S. 413 (1966)........................................11, 12

Dague v. City of Burlington,

935 F.2d 1343 (2d Cir. 1991) ...............................13

Duarte Nursery, Inc. v. United States

Army Corps of Engineers,

2017 WL 1105993 (E.D. Cal. Mar.

24, 2017) ...............................................................22

Federation Ins. Ltd. v. Wasson

[1987] HCA 34 (Austl.).........................................26

Fellner v. Minister of the Interior

1954 (4) SA 523 (App. Div.) .................................27

Freeman v. United States,

564 U.S. 522 (2011)............................ 5, 6, 8, 27, 28

FTC v. Whole Foods Mkt., Inc.,

548 F.3d 1028 (D.C. Cir. 2008) ............................22

Garcia v. National Austl. Bank Ltd.

[1998] HCA 48 (Austl.).........................................26

George Wimpey & Co. v. British

Overseas Airways Corp.

[1955] AC 169 (U.K.)............................................26

Gibson v. American Cyanamid Co.,

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

Glossip v. Gross,

135 S. Ct. 2726 (2015)..........................................12

iii

TABLE OF AUTHORITIES—continued

Page(s)

Gold v. Essex County Council

[1942] 2 KB 293 (U.K.).........................................27

Great W. Ry. Co. v. Owners of the S.S.

Mostyn

[1928] AC 57 (U.K.)..............................................27

Gregg v. Georgia,

428 U.S. 153 (1976)..............................................11

Harper v. National Coal Bd.

[1974] QB 614.......................................................26

Homeward Bound, Inc. v. Hissom Mem’l Ctr.,

963 F.2d 1352 (10th Cir. 1992)............................13

King v. Palmer,

950 F.2d 771 (D.C. Cir. 1991) ............ 12, 13, 15, 19

Marks v. United States,

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

Nichols v. United States,

511 U.S. 738 (1994)..............................................12

Northern Cal. River Watch v. City of

Healdsburg,

496 F.3d 993 (9th Cir. 2007)................................16

O’Dell v. Netherland,

521 U.S. 151 (1997)..............................................17

Panetti v. Quarterman,

551 U.S. 930 (2007)..............................................12

Perara-Cathcart v. The Queen

[2017] HCA 6 (Austl.)...........................................27

iv

TABLE OF AUTHORITIES—continued

Page(s)

Rapanos v. United States,

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

Romano v. Oklahoma,

512 U.S. 1 (1994)..................................................17

Solid Waste Agency of N. Cook Cty. v.

United States Army Corps of Eng’rs,

531 U.S. 159 (2001)....................................7, 20, 24

Tyler v. Bethlehem Steel Corp.,

958 F.2d 1176 (2d Cir. 1992) ...............................21

United States v. Alcan Aluminum Corp.,

315 F.3d 179 (2d Cir. 2003) .................................13

United States v. Bailey,

571 F.3d 791 (8th Cir. 2009)................................14

United States v. Chevron Pipe Line Co.,

437 F. Supp. 2d 605 (N.D. Tex. 2006) .................24

United States v. Cundiff,

555 F.3d 200 (6th Cir. 2009).............. 13, 14, 17, 20

United States v. Davis,

825 F.3d 1014 (9th Cir. 2016)..............................13

United States v. Donovan,

2010 WL 3000058 (D. Del. July 23,

2010) .....................................................................14

United States v. Donovan,

661 F.3d 174 (3d Cir. 2011) .................................14

United States v. Duvall,

740 F.3d 604 (D.C. Cir. 2013) ..............................18

v

TABLE OF AUTHORITIES—continued

Page(s)

United States v. Epps,

707 F.3d 337 (D.C. Cir. 2013) ..............................13

United States v. Freedman Farms, Inc.,

786 F. Supp. 2d 1016 (E.D.N.C.

2011) ...............................................................14, 17

United States v. Gerke Excavating, Inc.,

464 F.3d 723 (7th Cir. 2006)................................16

United States v. Johnson,

467 F.3d 56 (1st Cir. 2006) ............................14, 16

United States v. Lucas,

516 F.3d 316 (5th Cir. 2008)................................20

United States v. Riverside Bayview

Homes, Inc.,

474 U.S. 121 (1985)....................................7, 20, 24

United States v. Robertson,

875 F.3d 1281 (9th Cir. 2017)..............................18

United States v. Robison,

505 F.3d 1208 (11th Cir. 2007)............................18

Walsh v. Curry

[1955] NI 112, 125 (N. Ir.) ...................................26

Statutes, Rules, and Regulations

80 Fed. Reg. 37,053 (June 29, 2015)...........................6

82 Fed. Reg. 34,899 (July 27, 2017)............................6

Exec. Order No. 13,778, 82 Fed. Reg.

12,497 (Feb. 28, 2017)............................................6

vi

TABLE OF AUTHORITIES—continued

Page(s)

Other Authorities

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 (2006) ......................19, 22

Joseph M. Cacace, Note, Plurality

Decisions in the Supreme Court of

the United States: A Reexamination

of the Marks Doctrine After Rapanos

v. United States, 41 Suffolk U. L.

Rev. 97 (2007).......................................................15

Jamison E. Colburn, Governing the

Gradient: Clarity and Discretion at

the Water’s Edge, 62 Vill. L. Rev. 81

(2017)....................................................................15

Rupert Cross & J.W. Harris, Precedent

in English Law (4th ed. 1991) .............................27

Roni A. Elias, More than a Rivulet

Running to It: Making Sense of the

Clean Water Act Jurisdiction After

Rapanos v. United States, 10

Appalachian Nat. Resources L.J. 29

(2016)..............................................................15, 25

Ruth Bader Ginsburg, The Role of

Dissenting Opinions, 95 Minn. L.

Rev. 1 (2010).........................................................18

A.M. Honore, Ratio Decidendi: Judges

and Court, 71 Law Q. Rev. 196

(1955)....................................................................26

vii

TABLE OF AUTHORITIES—continued

Page(s)

G.W. Jones, Note, Federal Wetlands

Jurisdiction—The Quagmire of

Rapanos v. United States, 2 Pitt. J.

Envtl. Pub. Health L. 79 (2008) ..........................15

Ken Kimura, A Legitimacy Model for

the Interpretation of Plurality

Decisions, 77 Cornell L. Rev. 1593

(1992)....................................................................24

J.L. Montrose, Ratio Decidendi and the

House of Lords, 20 Mod. L. Rev. 124

(1957)....................................................................25

Justin F. Marceau, Plurality Decisions:

Upward Flowing Precedent and

Acoustic Separation, 45 Conn. L.

Rev. 933 (2013)...............................................15, 17

Richard M. Re, Beyond the Marks Rule

(UCLA Sch. of Law, Pub. Law

Research Paper No. 17-50, 2018),

perma.cc/2ZJ3-T945.............................................24

Kristen M. Sopet, Environmental

Law/Administrative Law—United

States v. Rapanos: Justice Stevens’s

Suggestion May Not Be the Yellow

Brick Road, but It Is the Best

Pathway to Oz, 31 W. New Eng. L.

Rev. 879 (2009).....................................................16

viii

TABLE OF AUTHORITIES—continued

Page(s)

Mark Alan Thurmon, When the Court

Divides: Reconsidering the

Precedential Value of Supreme Court

Plurality Decisions, 42 Duke L.J. 419

(1992)....................................................................22

Ryan J. Williams, Questioning Marks:

Plurality Decisions and Precedential

Constraint, 69 Stan. L. Rev. 795

(2017)........................................................16, 18, 20

INTEREST OF THE AMICI CURIAE

Amici curiae are trade associations whose members are responsible for a significant proportion of

American agricultural, forestry, mining, and energy

production, manufacturing, and construction.1

The American Farm Bureau Federation (AFBF)

is a voluntary general farm organization formed in

1919 to protect, promote, and represent the business,

economic, social, and educational interests of American farmers and ranchers. Through its state and

county Farm Bureau organizations, AFBF represents

about six million member families in all 50 states

and Puerto Rico.

The American Forest & Paper Association

(AF&PA) serves to advance a sustainable U.S. pulp,

paper, packaging, tissue, and wood products manufacturing industry through fact-based public policy

and marketplace advocacy. AF&PA member companies make products essential for everyday life from

renewable and recyclable resources and are committed to continuous improvement through the industry’s sustainability initiative, Better Practices, Better Planet 2020. The forest products industry accounts for approximately four percent of total U.S.

manufacturing GDP, manufactures over $200 billion

in products annually, and employs approximately

900,000 men and women.

The American Petroleum Institute (API) is a national trade organization representing over 650 comPursuant to Rule 37.6, amici affirm that no counsel for a party authored this brief in whole or in part and that no person

other than amici or their counsel made a monetary contribution

to its preparation or submission. The parties have provided

written consent to the filing of this amicus brief.

1

2

panies involved in all aspects of the domestic and international oil and natural gas industry, including

exploration, production, refining, marketing, distribution, and marine activities. API’s members include

producers, refiners, suppliers, pipeline operators,

and marine transporters, as well as service and supply companies that support all segments of the industry.

The Leading Builders of America (LBA) is a national trade association representing 20 of the largest homebuilding companies in North America. Collectively, LBA members build approximately 35% of

all new homes in America. Its purpose is to preserve

home affordability for American families. LBA member companies build across the residential spectrum

from first-time and move-up to luxury and activeadult housing. In each of these segments, its members are leaders in construction quality, energy efficiency, design, and the efficient use of land. Many of

its members are also active in urban multi-family

markets and also develop traditional and neotraditional suburban communities.

The National Alliance of Forest Owners (NAFO)

is a national advocacy organization committed to advancing federal policies that support the long-term

economic, social, and environmental benefits of sustainably managed, privately owned forests. NAFO

member companies own and manage more than 43

million acres of private working forests—forests that

are managed to provide a steady supply of timber.

NAFO’s membership also includes state and national

associations representing tens of millions of additional acres. NAFO works aggressively to sustain the

ecological, economic, and social values of forests and

3

to assure an abundance of healthy and productive

forest resources for present and future generations.

The National Association of Home Builders

(NAHB) is a national trade association incorporated

in Nevada. NAHB’s membership includes more than

140,000 builder and associate members organized into approximately 700 affiliated state and local associations in all 50 states, the District of Columbia, and

Puerto Rico. Its members include individuals and

firms that construct single-family homes, apartment

buildings, condominiums, and commercial and industrial projects, as well as land developers and remodelers.

The National Association of Manufacturers

(NAM) is the largest manufacturing association in

the United States, representing small and large

manufacturers in every industrial sector and in all

50 states. Manufacturing employs more than 12 million men and women, contributes $2.17 trillion to the

U.S. economy annually, has the largest economic impact of any major sector, and accounts for more than

three-quarters of all private-sector research and development in the nation. The NAM is the voice of the

manufacturing community and the leading advocate

for a policy agenda that helps manufacturers compete in the global economy and create jobs across the

United States.

The National Cattlemen’s Beef Association

(NCBA) is the national trade association representing U.S. cattle producers, with more than 30,000 individual members and several industry organization

members. NCBA represents more than 175,000 of

America’s farmers, ranchers and cattlemen who provide a significant portion of the nation’s supply of

food. NCBA works to advance the economic, political,

4

and social interests of the U.S. cattle business and to

be an advocate for the cattle industry’s policy positions and economic interests.

The National Mining Association (NMA) is the

national trade association of the mining industry.

NMA’s members include the producers of most of the

Nation’s coal, metals, and industrial and agricultural

minerals; manufacturers of mining and mineral processing machinery, equipment, and supplies; and engineering and consulting firms that serve the mining

industry.

The National Pork Producers Council (NPPC) is

an association of 43 state pork producer organizations and the global voice in Washington, D.C., for

the nation’s 67,000 pork producers. NPPC conducts

public policy outreach at both the state and federal

level with a goal of meeting growing worldwide consumer demand for pork while simultaneously protecting the water, air, and other environmental resources that are in the care of or potentially affected

by pork producers and their farms. NPPC and its

members have engaged directly with EPA over the

last two decades regarding the development of water

quality standards and have made significant capital

investments in the design and operation of farms to

comply with these environmental regulations.

As frequent litigants in courts at every level,

amici have a general interest in promoting clear

principles for determining the precedential effect of

this Court’s decisions. In particular, each amicus is

deeply interested in the scope of federal jurisdiction

under the Clean Water Act and has participated in

litigation and rulemaking addressing that issue over

many years. In that area, uncertainty over the precedential effect of this Court’s 4-1-4 decision in

5

Rapanos v. United States, 547 U.S. 715 (2006), has—

it is no exaggeration to say—wreaked havoc in courts

and agencies and among regulated communities.

This Court’s decision in Marks v. United States, 430

U.S. 188 (1977), has proved a murky standard for

applying Rapanos and similarly divided decisions. As

amici explain, a clearer set of principles for applying

fractured decisions like Rapanos is readily available,

would promote greater certainty, and would redirect

party, judicial, and government resources from fruitless debates about how to apply Marks back to resolution of the underlying legal issues.

INTRODUCTION AND

SUMMARY OF ARGUMENT

The Court should take this opportunity to clarify

the precedential effect of its decisions in which no rationale supporting the judgment enjoys majority

support. This Court’s guidance in Marks v. United

States, 430 U.S. 188 (1977), has proved inadequate to

the task. Amici illustrate the problem, and suggest

its resolution, by examining one divided 4-1-4 decision that has proved especially problematic for amici

and their members: Rapanos v. United States, 547

U.S. 715 (2006), which addressed the scope of federal

authority under the Clean Water Act. By doing so,

amici hope to illuminate the principles that should

be applied in cases like these, whether it is with respect to Rapanos, or Freeman v. United States, 564

U.S. 522 (2011), or more generally.

Rapanos addressed the jurisdiction of the Environmental Protection Agency and the U.S. Army

Corps of Engineers over the “waters of the United

States,” a term of art used in the Clean Water Act.

While a majority of the Court agreed that the agencies had defined the “waters of the United States” too

6

broadly, the Justices divided regarding the appropriate test for defining those waters. Justice Scalia,

writing for a plurality of four Justices, and Justice

Kennedy, concurring separately, offered two very different tests, backed by two very different rationales.

Rapanos, therefore, raises the same issue presented

here: which, if any, of the opinions in a split decision

is controlling.

The question of how Rapanos should be interpreted has been the subject of sustained controversy.

In enacting their 2015 rule defining “waters of the

United States,” the Corps and the EPA relied heavily

on Justice Kennedy’s concurrence, as well as Justice

Stevens’s dissent. Clean Water Rule: Definition of

“Waters of the United States,” 80 Fed. Reg. 37,053,

37,061 (June 29, 2015). The President recently instructed the agencies to reconsider that rule and instead “consider interpreting the term ‘navigable waters’ * * * in a manner consistent with the opinion of

Justice Antonin Scalia in Rapanos.” Exec. Order No.

13,778, § 3, 82 Fed. Reg. 12,497 (Feb. 28, 2017). Pursuant to that instruction, the agencies have filed a

notice of proposed rulemaking indicating that they

will “consider developing a new definition of ‘waters

of the United States’ taking into consideration the

principles that Justice Scalia outlined in the

Rapanos plurality opinion.” Definition of “Waters of

the United States”—Recodification of Pre-Existing

Rules, 82 Fed. Reg. 34,899, 34,902 (July 27, 2017).

The Court’s decision in this case is likely to clarify how lower courts and agencies should interpret

not only Freeman, but other decisions like Rapanos.

In the pages that follow, we offer some thoughts regarding how courts should approach that task, in

light of Marks and of general principles of judicial

7

authority—and how they should determine the precedential effect of Rapanos in particular. Ultimately,

we submit that any coherent approach to similarly

divided decisions would recognize the following principles:

1. A concurring opinion is controlling if, and only

if, it offers a rationale that a majority of the Court

would accept, which was decidedly not the case in

Rapanos. A concurring rationale that is entirely distinct from and incommensurate with that of the

plurality opinion can never be deemed the decision’s

binding holding.

2. A decision’s holding may never be constructed

by looking to the rationale urged by dissenters.

3. Even though a plurality and a concurrence

may disagree on the rationale for the judgment, they

may agree as to particular examples of how their

rationales would play out. Such points of agreement

by a majority of Justices are entitled to considerable

weight.

4. Where no rationale enjoys majority support,

and where the rationale of one opinion forming the

majority cannot properly be characterized as a logical subset of another (as in Rapanos), the holding of

the case is limited to the judgment on the particular

facts. In the Clean Water Act context, that result is

not problematic. Prior precedent addressing the issue will be left in place—for example, Solid Waste

Agency of Northern Cook County v. United States

Army Corps of Engineers, 531 U.S. 159 (2001), and

United States v. Riverside Bayview Homes, Inc., 474

U.S. 121 (1985), in the case of Clean Water Act jurisdiction. And the Court will have other opportunities

to address the issue and potentially resolve its divi-

8

sions. That result is preferable to the endless disputes over how to apply Marks that have marred the

development of Clean Water Act law after Rapanos.

ARGUMENT

The Fractured Rapanos Decision Offers A Case

Study That Should Inform The Court’s Approach In

This Case.

What the Court says in this case about how to

construe a divided 4-1-4 decision (or any decision in

which a rationale explaining the judgment does not

enjoy majority support) will necessarily shed light on

how courts should interpret other similarly split decisions—including the Court’s decision in Rapanos.

Like the decision in Freeman, Rapanos consisted of a

four-Justice plurality opinion, a single-Justice concurrence, and a four-Justice dissent. Neither the plurality opinion nor the concurrence can be described

as a logical subset of the other.

Rapanos addressed two distinct questions regarding the jurisdiction of federal agencies to regulate “waters of the United States” under the Clean

Water Act—immensely important questions, given

that “[t]he burden of federal regulation on those who

would deposit fill material in locations denominated

‘waters of the United States’ is not trivial,” to say the

least. 547 U.S. at 721 (plurality opinion). First, the

Court considered whether the “waters of the United

States” encompass any “channel or conduit—whether

man-made or natural, broad or narrow, permanent

or ephemeral—through which rainwater or drainage

may occasionally or intermittently flow.” Id. at 722.

Second, the Court considered “whether a wetland

may be considered ‘adjacent to’ remote ‘waters of the

9

United States,’ because of a mere hydrologic connection to them.” Id. at 740.

Justice Scalia, writing for himself, the Chief Justice,2 and Justices Thomas and Alito, answered both

questions in the negative. As to the first question,

Justice Scalia reasoned that the statutory phrase

“waters of the United States” refers to “relatively

permanent, standing or flowing bodies of water,” not

“ordinarily dry channels through which water occasionally or intermittently flows.” 547 U.S. at 732-733.

As to the second question, the plurality concluded

that “only those wetlands with a continuous surface

connection to bodies that are ‘waters of the United

States’ in their own right, so that there is no clear

demarcation between ‘waters’ and wetlands, are ‘adjacent to’ such waters and covered by the Act.” Id. at

742.

Justice Kennedy, writing for himself only, concurred in the judgment—but he applied a wholly distinct analytic framework to determine the scope of

the “waters of the United States.” To start, he concluded that the plurality’s “first requirement” of

“permanent standing water or continuous flow” made

“little practical sense in a statute concerned with

downstream water quality,” and was not compelled

by the statute’s text. 547 U.S. at 769 (Kennedy, J.,

concurring in the judgment). Turning to the second

question, he would hold that wetlands are sufficiently “adjacent” to “waters of the United States” if they

The Chief Justice also wrote separately to emphasize that

“the Corps and the EPA would have enjoyed plenty of room to

operate in developing some notion of an outer bound to the

reach of their authority,” but instead “chose to adhere to [their]

essentially boundless view of the scope of [their] power.” 547

U.S. at 758 (Roberts, C.J., concurring).

2

10

possess a “significant nexus” to those waters, meaning that they “significantly affect the[ir] chemical,

physical, and biological integrity.” Id. at 779-780.

Justice Stevens, writing for himself and Justices

Souter, Ginsburg, and Breyer, dissented. The dissenters accused the plurality of relying on an “arbitrary distinction” between permanent and intermittent flows of water, reasoning that “[i]ntermittent

streams can carry pollutants just as perennial

streams can.” 547 U.S. at 801, 804 (Stevens, J., dissenting). The dissent would have deferred to the conclusion of the Corps that wetlands are “adjacent” to

“waters of the United States” if they possess a hydrologic connection to those waters. Id. at 805. For that

reason, the dissenters also rejected Justice Kennedy’s imposition of a “significant nexus” requirement.

Id. at 807-809. Regardless, Justice Stevens noted

that “all four Justices who have joined this opinion

would uphold the Corps’ jurisdiction * * * in all other

cases in which either the plurality’s or Justice Kennedy’s test is satisfied.” Id. at 810.

In sum, Rapanos presents the same general

question at issue here: how a court may determine

which, if any, of the distinct opinions in a split decision are controlling. Amici now offer their own understanding of how to determine the precedential effect (or lack thereof) of such decisions, using Rapanos

as our example.

A. Justice Kennedy’s concurrence in Rapanos

is not controlling.

Marks is of limited import in determining the

precedential effect of a divided decision like Rapanos.

Indeed, it establishes a very narrow rule: Where a

concurring opinion adopts a narrower variant of the

11

plurality’s reasoning, the concurring opinion may be

considered the opinion of the Court (and vice versa).

Beyond this “Russian nesting doll” situation, Marks

has no application. It does not permit a court to give

precedential effect to a concurrence that is simply

different from—i.e., neither a narrower nor a broader

version of the reasoning of—the plurality opinion.

1. In Marks, the Court considered whether its de-

cision in A Book Named “John Cleland’s Memoirs of

a Woman of Pleasure” v. Attorney General of Massachusetts (“Memoirs”), 383 U.S. 413 (1966), had established the applicable obscenity standard at the time

the petitioner trafficked in allegedly obscene materials. 430 U.S. at 193. The majority opinions in Memoirs comprised a three-Justice plurality opinion holding that obscenity must be “utterly without redeeming social value”; “broader” opinions by Justices

Black and Douglas holding that “the First Amendment provides an absolute shield” against obscenity

prosecutions; and a similarly broad opinion by Justice Stewart holding that “only ‘hardcore pornography’ may be suppressed.” Id. at 193-194. Put simply,

all six Justices in the majority agreed that alleged

obscenity receives significant constitutional protection, while disagreeing on exactly how much protection to afford.

Marks held that the plurality opinion in Memoirs

was controlling. 430 U.S. at 194. The Court reiterated 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.’” Id. at 193 (quoting Gregg v. Georgia,

428 U.S. 153, 169 n.15 (1976) (plurality opinion)).

12

Because the plurality opinion would afford the least

First Amendment protection to obscenity among the

opinions concurring in the judgment, “[t]he view of

the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards.” Id. at 194.

Marks sets forth the rule that “[w]hen there is no

majority opinion, the narrower holding controls.”

Panetti v. Quarterman, 551 U.S. 930, 949 (2007)

(emphasis added). And since Marks, the Court and

individual justices have reasoned that Marks is inapplicable where one opinion is neither narrower nor

broader than another. See, e.g., Glossip v. Gross, 135

S. Ct. 2726, 2793 (2015) (Sotomayor, J., dissenting)

(explaining that Marks was inapplicable where one

opinion was “unrelated to, and thus not any broader

or narrower than,” the other); Nichols v. United

States, 511 U.S. 738, 745 (1994) (declining to apply

Marks where “[a] number of Courts of Appeals have

decided that there is no lowest common denominator

or ‘narrowest grounds’ that represents the Court’s

holding”).

To serve as the narrower ground under Marks,

an 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) (emphasis added).

That is the case where, for example, “the concurrence

posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own,

broader position.” Id. at 782. Ultimately, “[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

13

one opinion can reasonably be described as a logical

subset of the other.” United States v. Davis, 825 F.3d

1014, 1021-1022 (9th Cir. 2016) (en banc). Accord

United States v. Alcan Aluminum Corp., 315 F.3d

179, 189 (2d Cir. 2003); Homeward Bound, Inc. v.

Hissom Mem’l Ctr., 963 F.2d 1352, 1359 (10th Cir.

1992).

Conversely, there is no controlling opinion if “the

plurality and concurring opinions do not share common reasoning whereby one analysis is a ‘logical

subset’” of the other. United States v. Epps, 707 F.3d

337, 350 (D.C. Cir. 2013) (quoting King, 950 F.2d at

781). “Where no standard put forth in a concurring

opinion is a logical subset of another concurring opinion (or opinions) that, together, would equal five

votes, Marks breaks down.” United States v. Cundiff,

555 F.3d 200, 209 (6th Cir. 2009). Thus, “[w]hen no

single rationale commands a majority of the Court,

only the specific result is binding on lower federal

courts.” Davis, 825 F.3d at 1022.

Some courts of appeals, like the decision below,

have taken a different approach, holding instead that

an opinion is controlling if it “necessarily produce[s]

results with which a majority of the Court from that

case would agree,” regardless of whether its reasoning overlaps in any meaningful way with the other

opinions. Pet. App. 12a. But that approach would

“turn a single opinion that lacks majority support into national law” (King, 950 F.2d at 782)—yielding

the anomalous result that “the views of one justice,

with whom no one concurs,” represents “the law of

the land.” Dague v. City of Burlington, 935 F.2d

1343, 1360 (2d Cir. 1991). That is an untenable rule

on its face. Instead, the Court should hold that an

opinion is only controlling under Marks if it contains

14

reasoning with which a majority of the Court necessarily agreed.

2. In Rapanos, neither the plurality opinion nor

Justice Kennedy’s concurring opinion can reasonably

be described as a “logical subset” of the other. Thus

neither is controlling under Marks. See Pet. Br. 50.

As courts of appeals have repeatedly explained,

in Rapanos, “neither the plurality’s test nor Justice

Kennedy’s can be viewed as relying on narrower

grounds than the other.” United States v. Donovan,

661 F.3d 174, 182 (3d Cir. 2011). That is because

“[t]he cases in which Justice Kennedy would limit

federal jurisdiction are not a subset of the cases in

which the plurality would limit jurisdiction,” or vice

versa. United States v. Johnson, 467 F.3d 56, 64 (1st

Cir. 2006). Accord United States v. Freedman Farms,

Inc., 786 F. Supp. 2d 1016, 1018-1019 (E.D.N.C.

2011) (“neither the plurality opinion nor the concurring opinion is a precise subset of the other”); United

States v. Donovan, 2010 WL 3000058, at *3 (D. Del.

July 23, 2010) (“no single opinion in Rapanos is a logical subset of any other opinion”). “Because there is

little overlap between the plurality’s and Justice

Kennedy’s opinions, it is difficult”—indeed, a selfdefeating exercise—to try to “determine which holding is the narrowest.” United States v. Bailey, 571

F.3d 791, 798 (8th Cir. 2009).

Underlining that the Justices’ approaches were

starkly different, each opinion “flatly reject[s] the

other’s view.” Cundiff, 555 F.3d at 210. Justice Scalia

contended that Justice Kennedy’s opinion “leaves the

Act’s ‘text’ and ‘structure’ virtually unaddressed”—

effectively “rewrit[ing] the statute, using for that

purpose the gimmick of ‘significant nexus.’” Rapanos,

547 U.S. at 753, 756 (plurality opinion). Justice Ken-

15

nedy responded that the plurality opinion “impose[s]

two limitations * * * without support in the language

and purposes of the Act or in our cases interpreting

it.” Id. at 768 (Kennedy, J., concurring in the judgment). As the Chief Justice put it, “no opinion commands a majority of the Court on precisely how to

read Congress’ limits on the reach of the Clean Water Act,” and “[l]ower courts and regulated entities

will now have to feel their way on a case-by-case basis.” Id. at 758 (Roberts, C.J., concurring).

Commentators have likewise concluded that Justice Kennedy’s concurring opinion “lays out a framework far different from that offered by the plurality,”

and is therefore not a “logical subset” of the plurality’s reasoning. G.W. Jones, Note, Federal Wetlands

Jurisdiction—The Quagmire of Rapanos v. United

States, 2 Pitt. J. Envtl. Pub. Health L. 79, 88 (2008).

See also Jamison E. Colburn, Governing the Gradient: Clarity and Discretion at the Water’s Edge, 62

Vill. L. Rev. 81, 91 (2017) (“Justice Kennedy’s theory

of the CWA’s text, purpose, and doctrinal record differed substantially from the plurality’s theory in this

regard”). Justice Kennedy’s opinion, therefore, cannot be designated the controlling opinion under

Marks.3

See also, e.g., Joseph M. Cacace, Note, Plurality Decisions in

the Supreme Court of the United States: A Reexamination of the

Marks Doctrine After Rapanos v. United States, 41 Suffolk U. L.

Rev. 97, 121 (2007) (“the putative narrowest-grounds opinion

‘does not fit entirely within a broader circle drawn by the’ plurality”) (quoting King, 950 F.2d at 782); Roni A. Elias, More

than a Rivulet Running to It: Making Sense of the Clean Water

Act Jurisdiction After Rapanos v. United States, 10 Appalachian Nat. Resources L.J. 29, 51 (2016) (“there is no significant

commonality among any of the opinions in Rapanos”); Justin F.

Marceau, Plurality Decisions: Upward Flowing Precedent and

3

16

Of course, several circuits have held that Justice

Kennedy’s opinion does “provid[e] the controlling

rule of law” in Rapanos, even though the plurality

expressly rejected its reasoning, which is logically

distinct from the plurality’s. See, e.g., Northern Cal.

River Watch v. City of Healdsburg, 496 F.3d 993,

999-1000 (9th Cir. 2007). But those courts have

wrongly concluded that an opinion may be deemed

controlling under Marks even if it contains reasoning

that none of the other Justices concurring in the

judgment would adopt. Indeed, some of those courts

have treated Justice Kennedy’s opinion as controlling, even while acknowledging that in some cases it

would yield a result opposed by eight Justices. See

United States v. Gerke Excavating, Inc., 464 F.3d

723, 724-725 (7th Cir. 2006). That result is plainly

not authorized by Marks.

Nor does it make sense to say that Justice Kennedy’s opinion is the “narrowest’ because it is “least

restrictive of the assertion of federal authority,” given that “it seems just as plausible to conclude that

the narrowest ground of decision in Rapanos is the

ground most restrictive of government authority.”

Johnson, 467 F.3d at 63.

Acoustic Separation, 45 Conn. L. Rev. 933, 981 (2013) (“the

Court’s decisions that apply Marks suggest that there is no

precedent”); Kristen M. Sopet, Environmental Law/Administrative Law—United States v. Rapanos: Justice Stevens’s

Suggestion May Not Be the Yellow Brick Road, but It Is the Best

Pathway to Oz, 31 W. New Eng. L. Rev. 879, 908 (2009) (“[T]he

Marks test will not yield an intelligible result when applied to

Rapanos.”); Ryan J. Williams, Questioning Marks: Plurality Decisions and Precedential Constraint, 69 Stan. L. Rev. 795, 812

(2017) (“the jurisdictional test [Justice Kennedy] endorsed was

not wholly subsumed within the plurality’s test”).

17

Thus, neither Justice Scalia’s plurality opinion

nor Justice Kennedy’s concurring opinion, in isolation, can be deemed to set forth the holding of

Rapanos.

B. Justice Stevens’s dissenting opinion

Rapanos is not entitled to any weight.

in

Whatever weight is due to concurring opinions,

courts should not give any weight to dissenting opinions, which necessarily do not support the Court’s

judgment. As the Court put it in O’Dell v. Netherland, 521 U.S. 151 (1997), Marks requires the court

to identify “the narrowest grounds of decision among

the Justices whose votes were necessary to the judgment.” Id. at 160 (emphasis added). In Rapanos, that

means that Justice Stevens’s dissenting opinion cannot be deemed to set forth any controlling rules of

law.

The Court in Marks “instruct[ed] lower courts

* * * to ignore dissents.” Cundiff, 555 F.3d at 208. As

explained above, the Court held 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”—i.e., not those who expressly dissented from those judgments. Marks, 430 U.S.

at 193 (emphasis added). Thus, “[t]he plain wording

of Marks does not contemplate considering the position of dissenting Justices.” Freedman Farms, Inc.,

786 F. Supp. 2d at 1021. See Marceau, 45 Conn. L.

Rev. at 959 n.121 (counting the votes of dissenting

Justices is “inconsistent with the plain language of

the Marks formula”).

The Court has repeatedly emphasized this limitation on the scope of the Marks rule. See, e.g.,

O’Dell, 521 U.S. at 160; Romano v. Oklahoma, 512

18

U.S. 1, 9 (1994) (explaining that because “Justice

O’Connor supplied the fifth vote in Caldwell, and

concurred on grounds narrower than those put forth

by the plurality, her position is controlling”) (emphasis added). The votes of dissenting justices are, by

definition, not necessary to the judgment, and therefore do not count under Marks.

In this respect, statements in dissenting opinions

are similar to dicta. After all, “like dicta, statements

in dissenting opinions are neither ‘necessary to’ nor

even supportive of the judgment.” Williams, 69 Stan.

L. Rev. at 852. Treating them as more would change

the nature of dissents, in which dissenters now “enjoy something of the liberty of a gadfly, as the outcome does not in fact depend on what they say.”

United States v. Duvall, 740 F.3d 604, 623 (D.C. Cir.

2013) (Williams, J., concurring in denial of en banc

review). See also Ruth Bader Ginsburg, The Role of

Dissenting Opinions, 95 Minn. L. Rev. 1, 6 (2010)

(acknowledging that the purpose of a dissent may be

to “attract immediate public attention and, thereby,

to propel legislative change”).

For these reasons, the courts of appeals have

held that “Marks does not direct lower courts interpreting fractured Supreme Court decisions to consider the positions of those who dissented.” United

States v. Robison, 505 F.3d 1208, 1221 (11th Cir.

2007). See also Pet. App. 7a (following Robison);

United States v. Robertson, 875 F.3d 1281, 1292 (9th

Cir. 2017) (“the dissent that did not support the

judgment is out”); Gibson v. American Cyanamid Co.,

760 F.3d 600, 620 (7th Cir. 2014) (“under Marks, the

positions of those Justices who dissented from the

judgment are not counted in trying to discern a governing holding from divided opinions”). A court simp-

19

ly may not “combine a dissent with a concurrence to

form a Marks majority.” Palmer, 950 F.2d at 783.

Because nothing in Justice Stevens’s dissent in

Rapanos “constitutes a portion of the judgment of the

Court, * * * nothing in the dissent is part of the actual holding of the case.” 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). A

court may not give any controlling effect to the

Rapanos dissent under Marks.

C. Courts should give weight to those conclusions shared by the plurality and concurring opinion in Rapanos.

Having cleared the brush, the question remains:

What should a court do where neither of the opinions

which make up the majority supporting the judgment is a logical subset of the other, obviating

Marks? There are a number of options, each of which

gives appropriate weight to the opinions rendered by

the Court.

First, a court can apply both opinions to ascertain how a majority of the Justices would resolve the

case at hand. If both opinions would arrive at the

same result, then there is no need to determine

which opinion is controlling. Application of that approach to Rapanos would require a court to apply the

plurality’s test and Justice Kennedy’s “significant

nexus” test, and find jurisdiction (or a lack thereof) if

both would reach the same conclusion.

Second, a court can look for express points of

agreement between the two opinions, and afford controlling weight to how a majority of the Justices

would resolve specific issues. Application of that ap-

20

proach to Rapanos would yield a number of clear

propositions of law that would assist a court (or

agency) in assessing whether jurisdiction is present.

Third, it may be the case that none of the opinions in a split decision, or any parts of them, are controlling. In that case, the court—or the agency—

should carefully consider each of the opinions rendered by the majority as persuasive authority. Application of that approach to Rapanos would require

considering the plurality opinion and Justice Kennedy’s concurrence as persuasive authority, in light of

the cases that preceded Rapanos in which there were

clear majority holdings, including SWANCC and

Riverside Bayview.

We lay out each of these approaches in turn.

1.

Applying both opinions.

The first option is the most straightforward: A

court may apply both the plurality and the concurrence to ascertain how they would resolve the issue

at hand. “Any result that would have been reached

under every one of the judgment-supportive rationales constitutes a result that the lower court itself is

similarly bound to reach in the later case.” Williams,

69 Stan. L. Rev. at 803. Moreover, applying both

opinions where they would yield convergent results

allows the court to avoid resolving the often difficult

question of which opinion is controlling or what rationale constitutes the holding of the case.

That was the approach of the Sixth Circuit in

Cundiff, which held that “jurisdiction [was] proper

* * * under each of the primary Rapanos opinions,”

and therefore declined to “decide here, once and for

all, which test controls in all future cases.” 555 F.3d

at 208. Similarly, the Fifth Circuit in United States

21

v. Lucas, 516 F.3d 316, 327 (5th Cir. 2008), upheld a

conviction under the Clean Water Act because “the

evidence presented at trial supports all three of the

Rapanos standards,” meaning that the Court did not

need to decide which opinion was controlling.

Under this approach, a court would require that

Clean Water Act jurisdictional rules satisfy both the

plurality opinion and Justice Kennedy’s concurring

opinion, because that is the narrowest “position” taken by the majority opinions, read together. Rapanos

would therefore require that jurisdictional waters

have a relatively permanent flow that reaches traditional navigable waters, that wetlands have a continuous surface connection to navigable waters, and

that the flow or connection is sufficient in frequency,

duration, and proximity to affect the chemical, physical, and biological integrity of covered waters to satisfy Justice Kennedy’s significant nexus test.

In contrast, if under both opinions the relevant

jurisdictional hook is not present, then five Justices

would necessarily conclude that they do not fall within the Act. Thus, this approach serves to isolate comparatively “easy” cases where both the plurality and

the concurrence would reach the same result.

2.

Finding points of agreement.

Alternatively, the court may look for specific

points of agreement between the plurality and concurring opinions—i.e., “common ground shared by

five or more Justices.” Tyler v. Bethlehem Steel Corp.,

958 F.2d 1176, 1182 (2d Cir. 1992). This approach

will usually yield some guidance, because “[o]nly in

very rare cases do the opinions making up a majority

of a court contain no common principles or common

ground on which to derive any precedential holding

22

of the court.” FTC v. Whole Foods Mkt., Inc., 548

F.3d 1028, 1061 n.8 (D.C. Cir. 2008). See also Mark

Alan Thurmon, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 Duke L.J. 419, 452-453 (1992)

(“many decisions will contain majority agreement on

some points and lack that level of consensus on other

issues”). Even absent common ground as to the rationale employed, there may be agreement as to the

result the Justices’ disparate rationales would reach

as to specific facts. That is the case with Rapanos.

The plurality opinion and Justice Kennedy’s concurring opinion contain multiple points of agreement

as to which types of features are jurisdictional and

which are not. A subsequent court (or agency) faced

with the question of jurisdiction over one of those

features should be bound by that agreement of a majority of Justices, or at least give that agreement

considerable weight. See Adler, 14 Mo. Envtl. L. &

Pol’y Rev. at 11 (under this approach, “the grounds of

agreement between Justice Kennedy and the plurality opinion authored by Justice Scalia, form the holding of the Court”).

For example, the plurality and Justice Kennedy

agreed that “the word ‘navigable’ in ‘navigable waters’ [must] be given some importance.” Rapanos,

547 U.S. at 778 (Kennedy, J., concurring in the

judgment). See id. at 731 (plurality opinion). They

also agreed that the Clean Water Act “encompasses

some waters not navigable in the traditional sense,”

but that have a substantial connection to navigable

waters. Duarte Nursery, Inc. v. United States Army

Corps of Engineers, 2017 WL 1105993, at *5 (E.D.

Cal. Mar. 24, 2017). Of course, they disagreed

whether the sufficient connection is “a continuous

23

surface connection,” requiring a “relatively permanent standing or continuously flowing bod[y] of water

(Rapanos, 547 U.S. at 739, 742 (plurality opinion)),

or instead a “nexus” that is “significant” enough to

“affect the chemical, physical, and biological integrity” of the navigable water (id. at 779-780 (Kennedy,

J., concurring in the judgment)).

Despite this difference in characterizing the necessary connection, both Justice Kennedy and the

plurality agreed that, applying their tests, “waters of

the United States” do not include “drains, ditches,

and streams remote from any navigable-in-fact water

and carrying only minor water volumes toward it,”

much less the waters or “wetlands [that] lie alongside [such] a ditch or drain.” 547 U.S. at 778, 781

(Kennedy, J., concurring in the judgment). See id. at

778-781 (identifying “volume of flow” and “proximity”

as relevant factors and ruling out jurisdiction over

features with a “remote,” “insubstantial,” or “speculative effect on navigable waters); id. at 733-734

(plurality opinion) (jurisdiction reaches “continuously

present, fixed bodies of water”; “intermittent or

ephemeral flow” of the sort found in “drainage ditches,” “storm sewers and culverts,” and “dry arroyos” is

insufficient); id. at 742 (wetlands with “an intermittent, physically remote hydrologic connection” to jurisdictional waters lack a “significant nexus”).

Under this common-denominator approach, those

are points of law on which five Justices are necessarily in agreement—and therefore bind lower courts

and agencies. But further issues as to which five Justices did not agree remain open for decision.

24

3.

Treating all of the majority opinions as

persuasive authority.

A third option is to hold that neither the plurality nor the concurring opinion in a split decision is

controlling, and each serves as persuasive authority

that courts may use in resolving similar questions in

the future. This approach recognizes that “Court

precedent should form only when a single rule of decision has the express support of at least five justices.” Richard M. Re, Beyond the Marks Rule 1 (UCLA

Sch. of Law, Pub. Law Research Paper No. 17-50,

2018), perma.cc/2ZJ3-T945. And it also has the advantage of allowing lower courts “to experiment with

alternative rules and outcomes,” which may assist

the Court in resolving the issue that gave rise to the

split in the first place. Ken Kimura, A Legitimacy

Model for the Interpretation of Plurality Decisions, 77

Cornell L. Rev. 1593, 1625 (1992).

Under this approach, a court would not treat any

opinion or combination of opinions as controlling and

would instead use the Justices’ writings in Rapanos

as persuasive authority to be considered in determining the scope of jurisdiction under the Clean Water

Act. Importantly, those merely persuasive opinions

would need to be read through the lens of earlier decisions addressing Clean Water Act jurisdiction that

do have clear holdings, such as SWANCC and Riverside Bayview. In no circumstance would it be permissible to read statements in any of the Rapanos opinions as having superseded the authoritative rulings

in those earlier cases. At least one court has taken

this approach. United States v. Chevron Pipe Line

Co., 437 F. Supp. 2d 605, 615 (N.D. Tex. 2006).

By relying on all of the non-dissenting opinions

in Rapanos, the court or agency would also give

25

weight to the balance of interests that Congress considered in enacting the Clean Water Act. Justice

Scalia’s plurality opinion “comports with the text because it gives effect to the long-standing and wellestablished meanings of the crucial terms ‘navigable

waters’ and ‘waters of the United States,” while also

reflecting “[f]oundational principles of federalism.”

Elias, 10 Appalachian Nat. Resources L.J. at 57-58.

Justice

Kennedy’s

opinion

recognizes

the

“[i]mportant public interests * * * served by the

Clean Water Act in general and by the protection of

wetlands in particular.” Rapanos, 547 U.S. at 777.

These opinions therefore serve as a useful guide to

future questions of jurisdiction under the Clean Water Act, even if neither is controlling.

Ultimately, however, what a court cannot do is

allow the opinion of one Justice, lacking support from

a majority of the Court, to make national law. Any of

the options discussed above would be far more consistent with Marks—and give appropriate weight to

all of the Court’s prior opinions.

D. Other common law jurisdictions agree with

the approaches we have proposed.

The principles we describe above have been recognized in other common law jurisdictions in which

separate opinions in support of a majority judgment

have been the norm and the search for the ratio

decidendi of a case across disparate opinions a more

commonplace endeavor. See generally J.L. Montrose,

Ratio Decidendi and the House of Lords, 20 Mod. L.

Rev. 124, 127-130 (1957).

In those jurisdictions, dissenting decisions are afforded no weight in determining the holding of a

fractured decision. As Professor Anthony Honore ex-

26

plained, “[t]he fundamental reason why the opinions

of minority judges cannot form part of the ratio

decidendi of a case is that they are not reasons for

the order made by the court: a ratio decidendi is entitled to authority not as the opinion of one or more

judges, but as the reason for a judicial order.” A.M.

Honore, Ratio Decidendi: Judges and Court, 71 Law

Q. Rev. 196, 198 (1955). See, e.g., Federation Ins.

Ltd. v. Wasson [1987] HCA 34 (Austl.) (“it would not

be proper to seek to extract a binding authority from

an opinion expressed in a dissenting judgment”);

Garcia v. National Austl. Bank Ltd. [1998] HCA 48

(Austl.) (a Justice of the Australian High Court

“cannot speak for the Court unless his reasoning attracts the support, express or implied, of a majority

of the participating Justices (disregarding for this

purpose any who did not agree with the order of the

Court disposing of the proceedings on the point in

question”)) (Kirby, J.).

And courts in those jurisdictions do not recognize

opinions in which no rationale shares majority support as authoritative precedent beyond the particulars of the judgment. Thus, when the members of the

U.K. House of Lords expressed different opinions

about the meaning of a statute, “the decision in the

House of Lords does not give us authoritative guidance.” Walsh v. Curry [1955] NI 112, 125 (Black,

L.J.) (N. Ir.) (addressing the divided decision of the

three-justice majority in George Wimpey & Co. v.

British Overseas Airways Corp. [1955] AC 169). In

those circumstances, a subsequent “court is in a position to form its own judgment on the matter.” Id. at

124 (MacDermott, L.C.J.). See also, e.g., Harper v.

National Coal Bd. [1974] QB 614, 621-622 (Denning,

L.J.) (concluding that when a majority of the House

of Lords divided 2-1 as to their rationale, “we cannot

27

say that any of the three in the majority was correct”); Fellner v. Minister of the Interior 1954 (4) SA

523 (App. Div.) (S. Afr.) (“there is no ratio decidendi

of [a five judge] court unless at least three judges

propound the same ratio decidendi”); PeraraCathcart v. The Queen [2017] HCA 6 (Austl.) (“aggregation of the reasons for decision of members of

the majority can sometimes fail to yield a ratio

decidendi”) (Gageler, J.); Great W. Ry. Co. v. Owners

of the S.S. Mostyn [1928] AC 57, 73 (U.K.) (“if from

the opinions delivered it is clear * * * what the ratio

decidendi was which led to the judgment,” it “is binding. But if it is not clear, then I do not think it is part

of the tribunal’s duty to spell out with great difficulty

a ratio decidendi in order to be bound by it”) (Dunedin, L.J.).4

As with Rapanos, when there is a divided majority that does not fit the “Russian dolls” situation covered by Marks, a court should treat the case “as one

which had no discernible ratio and regar[d] itself as

free to follow * * * earlier decisions.” Rupert Cross &

J.W. Harris, Precedent in English Law 92 (4th ed.

1991).

* * *

Under these principles, neither the plurality

opinion nor Justice Sotomayor’s concurring opinion

in Freeman, 564 U.S. 522, should be deemed to con4 The Marks rule too has an analogue in English common law.

See, e.g., Gold v. Essex County Council [1942] 2 KB 293, 298

(Greene, L.J.) (where “two members of the court base their

judgments, the one on a narrow ground * * * and the other on

wide propositions * * *, and the third member of the court expresses his concurrence in the reasoning of both, I think it right

to treat the narrow ground as the real ratio decidendi”).

28

trol in this case. Neither opinion is a “logical subset”

of the other; as the Chief Justice explained, “[t]he

plurality and the opinion concurring in the judgment

agree on very little except the judgment.” Id. at 544

(Roberts, C.J., dissenting). Thus, the court of appeals

erred in holding that Justice Sotomayor’s concurrence states the holding of Freeman. Pet. App. 2a-3a.

The Court should instead adopt the approach we

have described using Rapanos as a parallel example,

and hold that both opinions are entitled to considerable weight to the extent they would yield the same

result or agree on discrete legal issues, and should

otherwise be treated as persuasive authority only.

CONCLUSION

The judgment of the court of appeals should be

reversed.

Respectfully submitted.

MICHAEL B. KIMBERLY

JOHN T. LEWIS

Mayer Brown LLP

1999 K Street, NW

Washington, DC 20006

(202) 263-3127

TIMOTHY S. BISHOP

Counsel of Record

Mayer Brown LLP

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Chicago, Illinois 60606

(312) 782-0600

tbishop@mayerbrown.com

ELLEN STEEN

JAN POLING

DANIELLE HALLCOM QUIST JERRY SCHWARTZ

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STACY LINDEN

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Leading Builders of

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National Alliance of

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National Association of

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LELAND P. FROST

National Association of

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JANUARY 2017