Nobody likes plurality decisions. Former Chief Justice Rehnquist called them "genuine misfortune [s]," since they are filled with unique and ominous issues. Often arising in cases involving contentious subjects, the reasoning behind these decisions' holdings by definition did not receive majority support. Nevertheless, the fate of any particular plurality decision is an open question, as its initial instability does not always inhibit its ability to solidify as law. While some are discarded over time, others (for better or worse) become legal mainstays. After the Supreme Court hands down a plurality decision, lower courts must discern its precedential value according to the Marks doctrine of Marks v. United States, which states that the binding precedent of a plurality decision should be the rationale of the Justice(s) who concurred on the "narrowest grounds." Despite this established method, lower courts sometimes struggle to determine and apply plurality precedents, and eventually cases with similar issues climb the ranks of appellate courts. Therefore, in addition to creating plurality decisions, the Court also determines their fates, deciding whether or not to follow stare decisis in subsequent cases where the plurality precedents are applicable. The Court follows a pattern when reviewing its plurality precedents, a pattern which depends upon lower court confusion and upon the Court's own evaluation of a precedent's substantive worth. When the precedent of a plurality decision has been clear to lower courts, the Court relies on the Marks doctrine to uphold it. If, however, lower courts are split over the correct application of a plurality precedent, the Court bypasses the Marks doctrine to reconsider the issue in dispute. In these situations, the Court frequently discards the plurality precedent in an attempt to announce a better precedent. In other cases, however, the Court chooses to follow the plurality precedent's reasoning because the Court agrees with its substantive law. In the recent plurality decision of Van Orden v. Perry, the Court decided that a long-standing government display of the Ten Commandments on the capitol grounds of Texas, which is surrounded by other historical monuments, does not violate the Establishriaent Clause. The Court, however, was starkly divided over the issue. In fact, Van Orden's plurality decision turned on the swing vote of Justice Breyer, whose rationale should be considered Van Orden's binding precedent under the Marks doctrine. The question that emerges is how the Court should treat this precedent in the future. Should the Court uphold Van Orden's precedent under the Marks doctrine? If not, when the Court reconsiders the issue, should it discard or readopt the precedent's rationale? In other words, should the Court consider the precedent substantively desirable law? This Note addresses these questions. Specifically, this Note explains why, when another government display of religion case is granted certiorari, the Supreme Court should bypass the Marks doctrine to reconsider Van Orden's issue and why the Court should discard Van Orden's plurality precedent. To appreciate why this outcome is appropriate, one must understand how plurality precedents are determined, as well as how and why the Court decides their end fates. Therefore, Part II summarizes the Marks doctrine and how the Court reviews its plurality precedents. Part III then discusses Van Orden's plurality decision. Next, Part IV first determines Van Orden's precedential opinion under the Marks doctrine, concluding that it is Justice Breyer's concurrence. Second, that Part details the developing circuit split in interpreting Van Orden's precedent. Finally, that Part exposes the substantive problems of this precedent. Because of the developing circuit split, the Court should bypass the Marks doctrine to reconsider the issue. Because of the precedent's substantive problems, the Court should discard it altogether.
W. Jesse Weins,
A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks over Van Orden v. Perry,
85 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol85/iss3/7