On a splintered Court, who rules?
Supposedly, the Supreme Court settled thirty-six years ago the issue of how to count the votes of the Justices to decide who won a case — and why — when the Court is widely splintered. But that ruling, in Marks v. United States, has “baffled and confused” the lower courts, as the Supreme Court itself has admitted. The confusion broke out anew on Tuesday, in the D.C. Circuit Court, about what the Justices meant two years ago in the four-one-four decision in Freeman v. United States.
Ultimately, the Justices themselves may have to sort out Freeman — an important decision on setting prison time for cocaine crimes — because the D.C. Circuit has split with all of the other circuit courts that have ruled on how to interpret that ruling. In short, the D.C. Circuit has found that the opinion written by Justice Sonia Sotomayor — for herself alone — may but also may not have controlled the result in Freeman, but the other appeals courts have ruled that her opinion definitely did define the precedent.
The Marks decision in 1977 involved a prosecution for distributing pornography, but its most important lingering impact is based upon this sentence in the opinion: “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 judgment on the narrowest grounds.”
The judgment, of course, is the end result: who won and who lost. But what qualifies as “the narrowest grounds” which justify that result — in other words, what is the holding or legal declaration that establishes a precedent? It is important for lower courts to figure that out, so that they can then apply a deeply divided Supreme Court decision when a new case raising the same issue comes along.
The puzzle for the lower courts can be stated fairly simply: If no group of five Justices explicitly signs onto a single opinion that explained the result, can two or more opinions, each of which speaks for fewer than five Justices, be patched together to get something that five Justices presumably could all accept, even if they never said that they would?
The answer to that question seems to be one of two alternatives: is the holding based on (a) a common line of reasoning that five Justices presumably could accept, or on (b) a legal declaration dictating a result that five would embrace? In both approaches, a narrower opinion is controlling, if it can be accepted as a subset of a broader opinion.
Under option (a), a common rationale would be a narrow explanation that one opinion gives which is logically in harmony with a broader explanation given by another, with the narrower view controlling because it is narrower. Under option (b), the controlling legal standard is a rule of law that is narrower than a broader one, but not in conflict with it and supporting the same end result.
The two, stated that way, do not seem all that different. But judges can write at considerable length and with a good deal of passion as they disagree about which to choose.
That is what happened Tuesday in the D.C. Circuit, as it sought to cope again with the Supreme Court’s splintered 2011 decision in the Freeman case. Its reaction offered a vivid illustration of the interpretive puzzle that is the challenging legacy of the Marks decision. Sharp disagreement came as the full Circuit Court denied en banc rehearing in a cocaine sentencing case, United States v. Duvall (Circuit docket 10-3091). That order left intact a January decision by a three-judge panel.
At issue was how to read this lineup of Justices in the Freeman decision: four Justices joined in one opinion (the plurality opinion that announced the result), four Justices joined in a dissenting opinion, and Justice Sotomayor wrote an opinion that did not draw any other vote but supported the result. Thus, the result had a five-to-four majority, but what was the holding, what precedent was set?
On Tuesday, Circuit Judge Judith W. Rogers said the issue already had been settled for the D.C. Circuit by a prior Circuit precedent, laying down a rule that would mean that there was no controlling opinion in Freeman. Rogers was already on record as taking that view, in a February ruling (United States v. Epps), and she stressed it anew to answer a colleague, Circuit Judge Brett M. Kavanaugh. In turn, Judge Kavanaugh sharply criticized Rogers’s stance, and he applied a different interpretation that led him to conclude that the Sotomayor opinion did control the Freeman outcome. He noted that this is what all other Circuit Courts had found. Where the D.C. Circuit actually stands on the issue, then, is quite ambiguous — Rogers’ view, or Kavanaugh’s?
The core issue in Freeman was whether an individual convicted of a crime and given a sentence under federal guidelines could later seek to have that sentence reduced, because the U.S. Sentencing Commission in the meantime had lowered the punishment range, and made the reduction retroactive — as it did for cocaine crimes. The Freeman case involved a variation on that issue: can the convicted individual take advantage of the new, more lenient sentencing regime if he and prosecutors had earlier made a plea bargain that discussed what sentence he would get?
The Supreme Court plurality (four Justices), in the opinion written by Justice Anthony M. Kennedy, allowed such a reduction in plea-bargained cases, on the theory that the earlier sentence was always based upon the guidelines and thus a new retroactive guideline had the effect of lowering the range. The four dissenters, in the opinion written by Chief Justice John G. Roberts, Jr., would not allow such a reduction, finding that the earlier sentence would always have been keyed to the terms of the bargain, not to the guidelines.
Justice Sotomayor’s separate concurrence said that the guidelines were sometimes (although not always) the basis of an earlier sentence. In the Freeman case, she said, they were, and so the lower guideline range applied.
Judge Kavanaugh had written the Circuit panel’s January decision in Duvall relying upon the Sotomayor opinion as controlling, and finding that the convicted individual in this case had not made a plea deal involving a sentence based on the guidelines, so he was not eligible for a new, lower sentence. On Tuesday, the judge voted against rehearing that ruling in a lengthy opinion, but he said the Circuit Court should be prepared to reconsider the issue and firmly declare that the Sotomayor opinion set the binding precedent, as every other appeals court had concluded.
It makes no sense, Kavanaugh wrote, to interpret the United States v. Marks mode of interpreting splintered Supreme Court decisions by looking for a common rationale. When the Court is splintered, as in Freeman, it is precisely because a majority cannot agree on a rationale, he said. In Freeman, he concluded, Sotomayor wrote an opinion that “would produce the results with which a majority” would agree. Judge Rogers’s February decision in Epps would not lead to such results, he argued, so it should someday be overruled.
Judge Rogers also voted on Tuesday against rehearing the Duvall case, but vigorously defended her decision in Epps as one in which she had no choice. To apply United States v. Marks to a splintered Supreme Court ruling, she wrote, a lower court must look for the common line of reasoning around which a majority of Justices could be said to have rallied, even if silently. Judge Kavanaugh, she implied, had been led astray in the panel ruling in the Duvall case.
This division within the Circuit Court, of course, mirrors the conflict among the circuit courts on the meaning of Freeman, and that is exactly the kind of conflict that can lead the Supreme Court to step in, if a case is appealed there.
Recommended Citation: Lyle Denniston, On a splintered Court, who rules?, SCOTUSblog (Aug. 13, 2013, 7:15 PM), http://www.scotusblog.com/2013/08/on-a-splintered-court-who-rules/