What Happens When Five Supreme Court Justices Can’t Agree?

What Happens When Five Supreme Court Justices Can’t Agree?

Legal Sidebari

What Happens When Five Supreme Court
Justices Can’t Agree?
Updated June 4, 2018
UPDATE, 6/4/2018: On June 4, 2018, the Supreme Court issued its decision in Hughes. The Court
ultimately deemed it “unnecessary” to decide which opinion governs when no single opinion enjoys a
majority and instead decided the case on alternative grounds. Thus, the underlying circuit split
concerning the Marks rule remains unresolved, and guidance from the Supreme Court regarding “the
proper application of Marks” will have to await a future case.
The original post from April 5, 2018, is below.
The Supreme Court generally adjudicates by majority rule; whatever legal position garners a majority of
votes in favor of its legal position prevails, and the majority’s ruling in that case becomes binding
precedent in subsequent cases. But what happens when a majority of Justices agree that a party should
win, but cannot agree as to why that party should win? Which Justice’s opinion, if any, becomes the law
when no single opinion enjoys a majority vote?
The Supreme Court has stated that “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.’” That
seemingly simple rule, however, is not always so simple to apply in practice. For example, it is not self-
evident how should courts identify which Justice’s opinion rests on the “narrowest grounds.” If the
opinion resting on the “narrowest grounds” only garnered a single Justice’s vote, does that opinion have
precedential effect even when every other Justice on the Court disagrees with it?
The Supreme Court recently heard oral argument in Hughes v. United States, a case that presents an
opportunity to explore these questions. Because split Supreme Court decisions have become increasingly
common in the past several decades, and because the Supreme Court is frequently unable to reach a
majority consensus “in cases involving especially difficult and highly salient legal issues on which public
opinion is sharply divided”—such as abortion, capital punishment, and environmental law—the Court’s
ultimate decision in Hughes could have significant implications in a variety of different fields.
This Sidebar begins by discussing the current doctrinal framework for determining what opinion should
govern when no opinion commands a majority vote. The Sidebar then explores the facts and issues
involved in Hughes before examining Hughes’s potential impact.
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Current Doctrine: The Marks Rule and “Reasoning” Versus “Results”
The Supreme Court held in Marks v. United States in 1977 that “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.’” This principle, known as the “Marks rule,” is frequently, as the Court itself has recognized,
“more easily stated than applied.” Lower courts have often disagreed regarding how to determine the
“narrowest ground” on which a judgment rests. In particular, courts disagree regarding whether the
“narrowest ground” is measured by “the reasoning of the various opinions” in the case or by “the ultimate
results” of those opinions.
Under the former approach, a particular opinion of a splintered Court constitutes binding precedent if and
only if that opinion “represent[s] a common denominator of the Court’s reasoning.” Put another way, an
opinion binds the lower courts only if it “embod[ies] a position implicitly approved by at least five
Justices who support the judgment.” If, instead, the rationale advanced by the plurality opinion does not
overlap with that advanced by the concurring opinion, such that no opinion serves as “a logical subset of
other, broader opinions,” the various opinions lack precedential effect and “only the specific result [of the
case] is binding on lower federal courts.”
Other courts, by contrast, focus on the “results” reached by each opinion rather than the reasoning therein.
These courts determine which opinion “provide[s] the narrowest, most case-specific basis for deciding”
the case in question and then accord that opinion “full precedential effect,” “even when that opinion does
not share common reasoning with the other opinions necessary to support the judgment,” and even when
a majority of the other Justices disagree with that opinion’s reasoning.
The practical difference between these two approaches toward the Marks rule can be stark. In a
significant number of split Supreme Court decisions, the plurality and concurring opinions do not share a
clear “common denominator,” in that the opinions rest upon rationales that do not neatly overlap logically
or conceptually. Because courts that have adopted the “reasoning” approach to Marks treat such decisions
“as wholly nonprecedential, or, at most, limited to their ‘specific results,’” one scholar argues that the
“reasoning” approach undesirably “threatens to leave lower courts without meaningful precedential
guidance with respect to many—perhaps most—plurality decisions.” On the other hand, because the
“results” approach to the Marks rule grants “full precedential effect” to opinions that have not
commanded a full majority of the Court, some have argued that the “results” approach can improperly
accord binding effect to opinions with which the majority of the Justices disagree.
Hughes, Freeman, and the Marks Rule
As explained below, Hughes presents the Court with an opportunity to clarify whether, and to what extent,
a Supreme Court opinion that does not garner a majority vote may nonetheless constitute binding
precedent. Hughes specifically presents the question of how the Marks rule applies to the Supreme
Court’s prior split decision in Freeman v. United States. Freeman involved a specific type of criminal plea
agreement, pursuant to which the prosecution and the defendant “agree that a specific sentence or
sentencing range is the appropriate disposition of the case.” Freeman presented the question of whether
criminal defendants who enter into those types of plea agreements—and thereby effectively concede that
a particular sentence would be appropriate—may nonetheless be entitled to a lower sentence if the United
States Sentencing Commission later amends the federal Sentencing Guidelines in a manner that favors the
defendant.
Although five Justices agreed that a defendant is potentially entitled to a sentence reduction under 18
U.S.C. § 3582(c)(2) in such circumstances, they “differ[ed] as to the reason why.” A four-Justice plurality
led by Justice Kennedy concluded that “there is no reason to deny” a sentence reduction “to defendants

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who linger in prison pursuant to sentences that would not have been imposed but for a since-rejected,
excessive range.” Justice Sotomayor agreed with the plurality that such defendants may potentially be
“eligible for sentence reduction.” Unlike the plurality, however, Justice Sotomayor interpreted the text
and history of 18 U.S.C. § 3582(c)(2) to mean that such defendants are eligible for a sentence reduction
only when their plea agreement “expressly uses a Guidelines sentencing range to establish the term of
imprisonment.” As a result, Justice Sotomayor’s approach would often result in fewer defendants
becoming eligible for sentence reductions than the plurality’s approach. Notably, however, “eight
Justices”—namely, the four Justices in the plurality and four dissenting Justices—“disagreed with Judge
Sotomayor’s approach and believed it would produce arbitrary and unworkable results.”
Because no single opinion in Freeman commanded a majority of the Court, the Supreme Court left the
lower courts to determine which Justice’s opinion (if any) constituted binding precedent under the Marks
rule. The majority of the federal Courts of Appeals, applying the “results” approach described above, have
concluded that, because Justice Sotomayor’s “reasoning provided the narrowest, most case-specific basis
for deciding Freeman,” her concurring opinion binds the lower courts, “even though eight Justices
disagreed with Justice Sotomayor’s approach.” However, a few other courts, applying the “reasoning”
approach to the Marks rule, have instead concluded that “there is no controlling opinion in Freeman”
whatsoever “because the plurality and concurring opinions do not share common reasoning whereby one
analysis is a ‘logical subset’ of the other.”
The Hughes Case
Amidst this confusion, the United States Court of Appeals for the Eleventh Circuit (Eleventh Circuit)
decided whether Erik Hughes was eligible for a sentence reduction under 18 U.S.C. § 3582(c)(2). Hughes
pleaded guilty to drug and firearm offenses, and the district court sentenced him to 180 months of
imprisonment. Soon thereafter, however, the United States Sentencing Commission amended the
Sentencing Guidelines to retroactively reduce the offense levels for certain drug offenses. Hughes
thereafter sought a reduction of his sentence.
The Eleventh Circuit, applying the “results” approach to Marks, concluded that Hughes was “ineligible
for a sentence reduction.” The Eleventh Circuit, applying the Marks rule, first determined that “Justice
Sotomayor’s concurring opinion [wa]s the holding of Freeman” because it “establishe[d] the ‘le[ast] far-
reaching’ rule” of all the opinions in the case. Because, according to Justice Sotomayor, a sentence
reduction is available only when the plea agreement “calls for a ‘defendant to be sentenced within a
particular Guidelines sentencing range’” or otherwise “makes clear that the basis for the specified term”
of the sentence “is a Guidelines sentencing range applicable to the offense to which the defendant pleaded
guilty,” and because “Hughes’s agreement d[id] neither” of those things, the Eleventh Circuit ruled that
Hughes was “not eligible for a sentence modification.”
The Supreme Court granted Hughes’s petition for certiorari to determine whether the Eleventh Circuit
properly applied the Marks rule. Hughes urges the Court to adopt the “reasoning” conception of Marks—
that is, to hold that “an opinion constitutes the ‘narrowest grounds’ under Marks” only when that opinion
“represents a logical subset of reasoning embraced by a majority of the Court.” Hughes maintains that,
when faced with a decision rendered by a fractured Court, a lower court should “only ask whether the
rationale of one opinion is fully subsumed by that of another. If so, the narrower opinion controls; if not,
there is no controlling precedent.” According to Hughes, “there is something seriously wrong with an
approach that would give controlling effect to reasoning with which eight Justices disagreed,” as the
Eleventh Circuit’s approach arguably does with respect to Justice Sotomayor’s concurrence in Freeman.
The United States, by contrast, claims that Hughes’s conception of Marks would “strip th[e] Court of the
ability to create nationwide uniformity when Members of th[e] Court reach common results through
different rationales.” Notably, some amici have urged the Supreme Court to abrogate the Marks rule

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altogether and instead hold that a Supreme Court decision has precedential value only when a majority of
Justices “expressly agree on a rule of decision.”
A decision in Hughes that either restricts or expands the precedential effect of splintered Supreme Court
decisions could have important implications in a variety of fields. As noted above, the Supreme Court is
frequently unable to reach a majority consensus in cases that involve divisive issues, such as abortion,
capital punishment, or the reach of environmental law.
The Supreme Court will likely issue its decision in Hughes this summer. While prognostication about how
the Supreme Court will rule in any given case is often hazardous, at least some of the Justices appear to
believe that the “reasoning” approach to Marks advocated by Hughes may sometimes produce “illogical”
results. Specifically, at oral argument, Justice Alito doubted whether, if a group of friends is “deciding
which movie to go and see, and four of them want to see a romantic comedy, and two of them want to see
a romantic comedy in French, and four of them want to see a mystery,” “the two who want to see the
romantic comedy in French” can be accurately characterized as “a logical subset of those who want to see
a romantic comedy” as the “reasoning” approach to Marks might suggest. Other Justices, such as Justice
Breyer, suggested that, rather than adopting either of the “reasoning” or “results” approaches to Marks,
the best course of action might be to “leave [the Marks rule] alone” and admonish lower courts to simply
“interpret it with common sense.”

Author Information

Kevin M. Lewis

Legislative Attorney

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