Results, Holdings, and Plurality Opinions
When the Supreme Court issues an opinion (in Supreme Court speak when an opinion is "handed down") it's important to distinguish which side won (a very simple task) from what the case holds (a task that can challenge even the best lawyers and judges). This distinction--results versus holdings--is always important and may become crucial this term with many important, highly complex, and hotly disputed cases. I hope this long post helps you sort through what could be some very confusing cases.
Let's start with simple arithmetic and a simple case. Let's say the case is from the Third Circuit and one for which the Supreme Court granted cert: call it P v. R. P is the petitioner, who got his cert petition granted and wants the Supreme Court to reverse the Third Circuit. R is the respondent who didn't want cert granted and wants the Third Circuit to be affirmed. The Court has nine members. If a majority (5 or more) of the Court agrees with P that the circuit ought to be reversed, we have the result (what is called the judgment) in the case, and the Court's order will say "[citation of the case] reversed and remanded". So you can easily see the result of a case: identify the petitioner, the respondent and whether the case below was affirmed or reversed. Simple, right? (Cases can end up being affirmed in part/reversed in part, too, as well as vacated and remanded, but don't concern yourself with that for now. Another point: if the Court only has eight members, as it did for 14 months after Justice Scalia's death, and the Court splits 4-4, the lower court is affirmed "by an equally divided Court"). But that is only the result. What about the holding?
What is a holding? A holding is a court's determination of some matter or question of law. Often, the holding refers to a determination of such a central issue that it decides the entire case. As LII defines it, a question of law is (1) an issue regarding the application or interpretation of a law; (2) an issue regarding what the relevant law is and if there are two or more mutually exclusive laws, a judge determines which law is relevant; or (3) an issue of fact that nevertheless has been reserved for judges, not juries, to resolve. So one way to think about the relationship between the result of a case and the holding of a case is that the result of a case is the endpoint; the holding is how you get there.
But figuring out the holding of a case can get tricky awfully quickly. Any law student will tell you that. Figuring out the holding of a case is the first thing you learn how to do in law school, and you will continue to do that throughout your legal career, especially if, like me, you are an appellate lawyer. Let's first take the easy example of District of Columbia, et al. v. Wesby, et al, handed down on January 22 (covered in my blog post of the same date). The syllabus* reads:
765 F. 3d 13, reversed and remanded.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and KENNEDY, BREYER, ALITO, KAGAN, and GORSUCH, JJ., joined.
SOTOMAYOR, J., filed an opinion concurring in part and concurring in the judgment. GINSBURG, J., filed an opinion concurring in the judgment in part.
This one comes out 7-2. Clearly, the result is a reversal, and seven members joined the majority opinion written by Justice Thomas. So the holdings set forth in that opinion are clearly the holdings of the Court. And even Justices Sotomayor and Ginsburg concurred in the judgment, which means the result (reversal) got 9 votes; the holding got 7.
But consider Crawford, et al. v. Marion County Election Board, et al. 553 U.S. 181 (2008). (A nice summary from Oyez is here). That syllabus reads:
Held: The judgment is affirmed.
472 F. 3d 949, affirmed.....
STEVENS, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and KENNEDY, J., joined. SCALIA, J., filed an opinion concurring in the judgment, in which THOMAS and ALITO, JJ., joined. SOUTER, J., filed a dissenting opinion, in which GINSBURG, J., joined. BREYER, J., filed a dissenting opinion.
How do you sort this out?
Notice that unlike Wesby, it is not the "opinion of the Court" but "the judgment of the Court". Why? Because there was no majority opinion: the Court split 3-3-3. True, there were 6 votes for the judgment (result) of affirmance but no majority could agree on the reasons for that judgment. Crawford is a classic case of a plurality opinion. A plurality opinion is an appellate opinion in which no single opinion gets a majority. Put another way, it is an opinion with which a majority of the judges on the court concur in the result but not in the reasoning. The question then becomes, how do you interpret plurality opinions? We can figure out the result/judgment, but how do you determine the holding of the case given that there is no majority opinion?
The Supreme Court made an attempt to explain how the holding of a case should be viewed when there is no majority supporting the rationale of any one opinion in Marks v. United States, 430 U.S. 188 (1977):
When a fragmented Court decides a case with 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.
Marks, 430 U.S. at 193. On its face, this makes sense. If the concurring Justices believe that the result can be justified on a more narrow ground, it hardly seems right to interpret the holding of the case as being based on the more expansive ground favored by the other Justices.
Of course, this requires lower courts (and lawyers) to look at all of the opinions and try to figure out which opinion is the most narrow compared to the others. This becomes the controlling opinion, the holding of the case. Not only is this a difficult task, but it can lead to a result where a single concurring opinion can be the controlling opinion, in a 4-1-4 split. This is exactly what happened in Freeman v. United States, 564 U.S. 522 (2011), a 4-1-4 decision in a case involving plea agreements and sentencing.
As you can well imagine, Marks and cases like Freeman have given the lower courts and lots of lawyers lots of headaches. The Supreme Court gets another shot to try to make sense of Marks and plurality opinions (and Freeman too) this term in the case of Hughes v. United States.
The Hughes brief gives you exactly what is at stake in this case (along with a great summary of how we got here):
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.
The questions presented are:
1. 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.
2. 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
[Editorial note: Questions 1 and 2 seem to me to show how plurality opinions can become an interpretive nightmare when pushed to their logical extreme.]
3. 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.
One final point. Some commentators (and Hughes' counsel) make the point that the Supreme Court might want to revisit Marks and its treatment of plurality opinions and hold that only true majority opinions (5+ judges) have precedential value (that is, can determine other cases) and that plurality opinions only have persuasive authority. That would surely solve the interpretive problems surrounding plurality opinions.
Yet there's this. The Supreme Court gets difficult cases, and although they must come up with a result, getting five or more Justices to agree on the reason(s) for the result can itself be very difficult. Would making plurality opinions only persuasive help or hurt in writing opinions in cases like Gill (the gerrymandering case) or Masterpiece Cake? The decisions in those cases seem too important to have only persuasive authority, and the courts and lawyers (and the country) look to the Supreme Court for definitive guidance, not just thoughts about what the law ought to be. Would it help the Court come up with a majority opinion? Would it build--or force--the consensus that would be needed to get the 5 or more votes needed? On the other hand, perhaps these are cases that just can't be solved by forcing a majority: they involve law and societal issues that just aren't easily solved. And besides, I can't imagine that the Supreme Court writes pluralities lightly. They know the consequences.
Hughes will be argued March 27th. It is sure to be very interesting. As always, I will keep you up to date.
* The syllabus is prepared by the Reporter of Decisions of the Supreme Court "for the convenience of the reader" and "constitutes no part of the opinion of the Court". See United States v. Detroit Timber and Lumber Company 200 U.S. 321, 337 (1906). A nice summary of why this language is at the beginning of every reported case can be found here. Pro tip: the syllabus should never be relied upon for the holding of the case.