On Monday, November 25, the Court issued its first decision for the October 2019 Term in a case from the Ninth Circuit Court of Appeals called Thompson v. Hebdon. On the surface, it’s a case about the constitutionality of limits on campaign contributions, but the Court doesn’t actually decide that question. Instead, the decision actually seems to be saying something about a doctrine known as the Marks rule. But what it’s saying is not entirely clear, and explaining why requires a little background.
This was a summary reversal. First, a few words about that. Each year the Court grants petitions to accept a number of cases (around 70 in recent years), hears oral argument in those cases, and then issues signed opinions deciding them. This is referred to as the Court’s “merits” docket. In addition to the merits docket, the Court occasionally issues summary decisions (5–10 per year or so). These are decisions issued without full briefing or oral argument. The opinions are typically pretty short and are normally issued “per curiam” — i.e., on behalf of the Court as a body, rather than signed by an individual justice.
The justices like to say that the Supreme Court is not a court of “error correction” — that is, they don’t take a case just because the lower court got it wrong, but instead only because the case is of particular national importance or because the lower courts are divided on the legal issue presented in the case. That’s generally true of the merits docket, but the Court’s summary reversals tend to look much more like error correction. The Supreme Court steps in to set straight a lower court that’s gone astray.
Thompson v. Hebdon is one of these error correction cases. The basic legal question in the case is whether Alaska’s campaign contribution limits are unconstitutionally low. But the Court doesn’t actually answer that question. Instead it vacates the lower court’s decision and sends the case back for a do-over.
Why? It ultimately comes down to the Marks rule. The overwhelming majority of Supreme Court decisions are delivered with an Opinion of the Court — that’s a majority opinion, joined by five or more justices, that provides the authoritative reasoning supporting the Court’s decision. There may also be additional concurring or dissenting opinions, but there is usually one clear majority opinion. Occasionally though, the justices in the majority are unable to agree on the reasoning, and there is no Opinion of the Court. Instead, the justices forming the majority are divided across two or more separate opinions that don’t agree completely (or sometimes even remotely) on the reasoning supporting the decision. These are commonly referred to as “splintered” or “fractured” decisions. An opinion joined by the largest number of justices (typically three or four) is referred to as the plurality opinion, but it is not designated the Opinion of the Court.
When there is an Opinion of the Court, its reasoning is binding on the lower courts. But what is a lower court supposed to do when the Court issues a splintered decision with no clear majority opinion? The Supreme Court answered this question in a 1977 case called Marks v. United States. In that case, the Court said 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.”
That sounds straightforward enough, but in practice it has led to decades of disagreements in the lower courts. First of all, what does “narrowest grounds” mean in this context? Reasoning that departs the least from the status quo before the decision? The median position among the rules advocated in the various opinions of the justices? A rule of decision that resolves the smallest set of cases going forward? Second, what if the rules advocated in the different opinions making up the majority are wildly incompatible with each other? Is there even a narrowest grounds to be identified?
There’s a fair amount of academic writing on the Marks rule, offering various interpretations and proposals for reform, but no clear consensus. A recent article by Richard Re does a good job of describing the Marks problem and several competing interpretations of what lower courts are supposed to do. (For what it’s worth, I’m not fully on board with the way Re characterizes the various approaches to Marks, but I agree completely with his proposed solution: the Marks rule should be scrapped, and splintered decisions should have precedential value only to the extent that the opinions making up the majority actually agree on a rule of decision.)
The lower courts have also struggled with Marks for years and have not all ended up in the same place. You might think the Supreme Court could step in to give some guidance. The problem is, the Supreme Court is very differently situated from the lower courts. It’s not bound by its own precedents. Even a 9–0 decision can theoretically be overturned or modified in a later decision. So when the Supreme Court is faced with a case presenting a thorny Marks question about its own precedent, it can (and generally does) completely sidestep Marks by re-deciding the underlying legal issue. Individual justices have offered (conflicting) opinions on the correct application of Marks, but the Court as a whole has given very little guidance.
That brings me back to Thompson v. Hebdon. In 2006, the Supreme Court decided a case about the constitutionality of campaign contribution limits called Randall v. Sorrell. For purposes of this post, the important thing about Randall is that it was a 6–3 splintered decision. Simplifying slightly, the majority consisted of a plurality opinion for three justices written by Justice Breyer, plus a solo concurrence by Justice Kennedy, and a concurrence for two justices written by Justice Thomas.
So, how did the lower court in Thompson v. Hebdon apply the splintered decision in Randall v. Sorrell? Short answer: not at all. The Ninth Circuit cited it only in a footnote, saying “Randall is not binding authority because no opinion commanded a majority of the Court.” But what about the Marks rule?
For that we need to go to an earlier Ninth Circuit decision in a case called Lair v. Bullock, which the Ninth Circuit cited in Thompson. In Lair, the court considered how the Marks rule applies to Randall v. Sorrell. The Ninth Circuit uses an interpretation of Marks called the “logical subset” approach. Under this approach, the narrowest opinion for Marks purposes is one that “will necessarily produce results with which a majority of the Court from that case would agree.” But what if there is no opinion that fits that description? Under the logical subset approach, the case creates no binding precedential rule. The Lair court held that none of the opinions in Randall meets the logical subset test, and thus Randall is not binding precedent. (As an aside, it’s not clear that Lair correctly applies the logical subset test. That test is usually taken to ask whether the results called for by one opinion are logically produced by another, not whether there is agreement on the rationale. Under the results-based test, it seems that Breyer’s plurality opinion should control.)
So what did the Supreme Court say in Thompson v. Hebdon? The Court notes that “the Ninth Circuit declined to apply our precedent in Randall v. Sorrell.” In a footnote, the Court elaborates further, stating that “[t]he court below declined to consider Randall ‘because no opinion commanded a majority of the Court,’” but that “Courts of Appeals from ten Circuits have, however, correctly looked to Randall in reviewing campaign finance restrictions.”
What can we take away from this? I’m not entirely sure.
On the one hand, the Court’s description of the other circuits as “correctly look[ing] to Randall” as opposing to the Ninth Circuit which “declined to apply” it, could simply be rebuking the lower court for failing to identify binding authority at all, rather than expressing an opinion on the correct Marks result. On this reading, the Court is implicitly rejecting the logical subset test (and presumably any other Marks approach that doesn’t always yield a binding opinion), but not expressly deciding the correct precedential application of Randall. Observe that the Court never explicitly says which opinion in Randall is binding.
On the other hand, the Court could be saying that the other circuits “correctly looked to Randall” by correctly identifying the Breyer plurality as binding precedent, without necessarily meaning to express any opinion on Marks methodology. The Court seems to implicitly endorse the Breyer plurality by repeatedly referring to it using the pronoun “we”: “In Randall, we identified . . .”; “We observed in Randall . . .”; “In Randall, we noted . . .”. But the Court never mentions Marks or even alludes to the issue of identifying the controlling opinion in a splintered decision. On this reading, the Ninth Circuit’s error was simply not recognizing Breyer’s opinion as controlling in this particular case. And as I noted above, although the logical subset rule doesn’t always result in binding authority, a correct application in this case would arguably have also identified Breyer’s opinion as controlling.
Or maybe the Court meant to imply both: every splintered decision has a controlling opinion, and in this case that opinion is Breyer’s plurality. Or maybe the opinion is deliberately ambiguous because it’s a compromise among justices who agree that the lower court got it wrong, but don’t necessarily agree exactly why.
Based on their most recent public attempt to grapple with Marks, it appears to me that many (most?) of the justices don’t have a particularly sophisticated understanding of the Marks problem, and even if they did, it’s not clear that they would agree on a solution. So trying to discern what they really meant in Thompson v. Hebdon is probably a fool’s errand. But it will be interesting to see what, if any, effect it has on the lower courts’ approach to Marks.