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Plurality decisions in the Supreme Court of the United States: a reexamination of the Marks doctrine after Rapanos v. United States.

"First thing I want you kids to learn is how to count to five." (1)

I. INTRODUCTION

Although the Supreme Court of the United States almost never has trouble counting to five with respect to the ultimate disposition of a case, (2) the Court often stumbles when attempting to agree on the appropriate rationale. (3) If not resolved, this disagreement will lead to the Court's announcing a plurality decision. (4) The Court has handed down a steadily increasing number of plurality decisions throughout its history. (5) Commentators have suggested a number of factors that might account for this increase, including ideological splits among the Justices, (6) an increasingly heavy workload, (7) more cases presenting socially volatile issues, (8) a lack of leadership on the Court, (9) and an increase in "substantive" reasoning in the Court's decisions. (10) Whatever the root causes might be, plurality decisions have become an undeniable part of the Supreme Court's jurisprudence. (11)

Given this observation, many commentators have called attention to the obvious problems that plurality decisions create. (12) Plurality decisions provide lower courts and litigants with very little guidance as to the state of the law. (13) Even more troubling is that plurality decisions can erode public confidence in the Supreme Court, as a result of the Court's inability to render authoritative decisions. (14) Not surprisingly, many of these critics argue that the Court must do more to produce opinions that achieve majority consensus. (15)

Nevertheless, several commentators have argued that plurality decisions are not without value. (16) For example, when the Justices fundamentally disagree about a legal principle, it might be best for them to express their individual views and not to "insist on superficial agreement." (17) First, this practice can actually provide increased guidance to lower courts and litigants because it reveals a position that might eventually prevail. (18) Second, both the Justices and lower courts are freer to indulge "innovative and creative" solutions to novel legal issues after a plurality decision than they would be after a majority decision. (19) Since plurality decisions are accorded a lower degree of stare decisis value within the Court, (20) the Justices can continue to explore new rationales until one achieves majority support. (21) Similarly, lower courts have more opportunity to distinguish future cases and develop alternative rationales. (22) This process of "issue percolation" in the lower courts can be helpful to the Supreme Court the next time it confronts the issue. (23)

The normative value of plurality decisions aside, they have become a conspicuous part of the Supreme Court's jurisprudence. (24) Consequently, the Supreme Court articulated a rule for interpreting plurality decisions in Marks v. United States. (25) The Marks Court announced: "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....'" (26) While this rule--called the "Marks doctrine" or "narrowest grounds doctrine" (27)--resolved some of the interpretive problems unique to plurality decisions, (28) it has proved to be "more easily stated than applied," (29) and has created disagreement among courts and commentators about when and how the rule should apply. (30)

Accordingly, this Note explores the narrowest-grounds doctrine in an attempt to resolve some of the conflict and confusion that Marks has engendered. (31) This Note begins by addressing the factors that prompted the Supreme Court to pronounce an interpretive rule for plurality decisions. (32) After discussing Marks v. United States, (33) this Note examines two competing approaches to the Marks doctrine. (34) Part II.C.1 describes the conventional approach, which views the Marks doctrine as an application of the principle of majoritarianism to Supreme Court plurality decisions. (35) Part II.C.2 discusses the more novel social choice approach, which deems the Marks doctrine an application of the Condorcet criterion to Supreme Court plurality decisions. (36) Part III of this Note analyzes these competing approaches in light of the Supreme Court's recent plurality decision in Rapanos v. United States. (37) This Note concludes that the conventional understanding of Marks as an application of the principle of majoritarianism is more normatively justifiable than the social choice view of Marks as an application of the Condorcet criterion. (38) Finally, this Note suggests a simple two-step process for lower courts to use when attempting to follow Supreme Court plurality decisions. (39)

II. HISTORY

A. Factors Contributing to the Need for an Interpretive Rule for Plurality Decisions

At least four factors contribute to the Supreme Court's need for an interpretive rule for its plurality decisions: the Court's outcome-focused voting protocol is inherently likely to produce plurality decisions; (40) the Court must produce "definitive statements of [its] reasoning" to fulfill its institutional role as the final interpreter of the Constitution and other federal laws; (41) the number of plurality decisions has increased steadily over the Court's history; (42) and lower courts have taken disparate approaches to interpreting the Court's plurality decisions. (43)

1. Supreme Court's Voting Protocol

Although the Supreme Court's size has fluctuated between five and ten members throughout its history, (44) the makeup of the Court has remained steady at nine Justices since the passage of the Judiciary Act of 1869. (45) Its fluctuating size notwithstanding, the Court has always decided cases by simple majority vote. (46) The Court determines the ultimate judgment in a given case by aggregating the Justices' preferences for the disposition of the case, without regard to the rationale used to reach that outcome. (47) Outcome voting's focus on the majority's preferred judgment increases the likelihood that the Court will produce plurality decisions because two or more groups of Justices may favor the same result for wildly divergent reasons. (48) Thus, the inherent likelihood that the Court's outcome-voting protocol will produce plurality decisions is one factor suggesting the need for a rule to interpret those decisions. (49)

2. Supreme Court's Institutional Power

The role of the Supreme Court today is far more robust than it was at America's founding. (50) The power the Court now wields is due in large part to Chief Justice John Marshall's legacy. (51) Chief Justice Marshall bolstered the Court's authority by eliminating its practice of issuing seriatim opinions, and instituting a new practice of announcing the Court's judgment in a single opinion of the Court. (52) The combination of this new approach to opinion writing and the Court's willingness to issue some rather bold decisions (53) allowed the Court to assume a much more important role than it had at the Founding. (54) The significance of the Court's written opinions grew as they came to embody the final word on the meaning of the Constitution. (55) Thus, it became important for the Court to announce its decisions in clear and well-reasoned opinions. (56) Plurality decisions that produced no opinion of the Court lacked the requisite clarity and presented difficult interpretive problems for those attempting to follow the law as construed by the Supreme Court. (57) Accordingly, while a Supreme Court rule for interpreting splintered decisions was unnecessary at the Founding, such a rule became indispensable as the Court's institutional influence--and corresponding duty to provide guidance for lower courts and other actors--expanded. (58)

3. Increasing Number of Supreme Court Plurality Decisions

The third factor leading to the need for an interpretive rule for plurality decisions is that over time the Court has handed down a growing number of plurality decisions. (59) Between 1800 and 1956, the Supreme Court rendered forty-five plurality decisions. (60) Thirty-five of these plurality decisions were handed down after 1900. (61) Furthermore, three-fourths of the thirty-five plurality decisions rendered between 1900 and 1956 came down after 1937. (62) Between 1955 and 1980, the Court issued 101 plurality decisions. (63) Therefore, by the time the Supreme Court decided Marks in 1977, the increasing prevalence of plurality decisions had transformed the phenomenon from an aberration that the Court could overlook to a recurring problem that the Court could no longer ignore. (64)

4. Divergent Interpretive Approaches in Lower Courts

At common law and throughout the nineteenth century, plurality decisions created binding precedent with respect to the result only. (65) Thus, the various rationales supporting the Court's judgment in a plurality decision carried no precedential weight, and lower courts only followed splintered decisions if a subsequent case involved very close factual similarities. (66) As the number of plurality decisions grew during the twentieth century, however, lower courts felt the need to rely on plurality decisions for more than just their results and began to explore new approaches to interpreting the rationales in splintered decisions. (67) These new approaches shared the same goal: to disentangle the Court's rationale, or ratio decidendi, from its obiter dictum. (68) Plurality decisions lack a single, clear ratio decidendi, so lower courts were left to their own devices when attempting to discern the Court's holding. (69) The methods that lower courts have employed when attempting to determine the Supreme Court's holding in plurality decisions include: following the plurality opinion as if it were a majority opinion; (70) limiting plurality decisions to their results in the traditional manner; (71) following the most persuasive opinion; (72) and cobbling together a majority consensus using ad hoc methods. (73) The inconsistency among lower courts' interpretive approaches to Supreme Court plurality decisions indicated to the Court in 1977 that it was time to end the confusion. (74)

B. The Supreme Court's Solution: The Marks Doctrine

The Supreme Court's only established rule for interpreting plurality decisions emerged from a case involving the Court's infamous definitions of "obscenity." (75) The five petitioners in Marks v. United States were charged with transporting "obscene" materials in interstate commerce and with conspiracy to do the same. (76) The petitioners' alleged conduct occurred after the Supreme Court had defined "obscenity" in Memoirs v. Massachusetts, (77) but before the Court redefined "obscenity" in Miller v. California. (78) The petitioners' trial, however, took place after the Supreme Court decided Miller, so the district court instructed the jury under the Miller standards. (79) The district court overruled the petitioners' objection to the jury instruction, and the jury convicted all five defendants. (80)

The petitioners then appealed their convictions to the Court of Appeals for the Sixth Circuit. (81) On appeal, the petitioners argued that the district court's jury instructions violated the Due Process Clause of the Fifth Amendment. (82) According to the petitioners, the district court should have instructed the jury under the Memoirs test because that case represented the law in effect when the conduct at issue occurred. (83) The petitioners argued further that Miller "cast[] a significantly wider net than Memoirs," such that applying Miller retroactively amounted to an unconstitutional punishment of conduct that was innocent when performed. (84) The Sixth Circuit disagreed and affirmed the convictions, holding that under either Memoirs or Miller the materials at issue were "obscene" and not protected by the First Amendment. (85) The Sixth Circuit reached this conclusion, however, by discounting or disregarding at least part of the Memoirs test and relying more heavily on the prior case of Roth v. United States. (86)

The petitioners sought relief from the Sixth Circuit's judgment in the Supreme Court of the United States. (87) In reviewing the Sixth Circuit's holding, Justice Powell, writing for the Court, inferred that the court of appeals misread Memoirs by "apparently conclud[ing]" that Memoirs was not binding law because it was a plurality decision. (88) If the Sixth Circuit's conclusion were correct, Powell explained, an appellate court reviewing the convictions in Marks would look not to Memoirs, but to Roth v. United States--the last case in which a majority agreed upon a definition of "obscenity"--to determine whether Miller expanded criminal liability for obscenity-related crimes. (89) If Roth in fact stated the law prior to Miller, Powell would agree with the court of appeals' conclusion that Miller did not substantially change prior obscenity law. (90)

Justice Powell disagreed, however, with the Sixth Circuit's conclusions that the rationales in plurality decisions lack the force of law, and that Miller did not substantially change prior obscenity law. (91) After asserting that "the basic premise for [the Sixth Circuit's] line of reasoning is faulty," Powell announced the only rule that a majority of the Supreme Court has ever endorsed for interpreting plurality decisions. (92) Powell wrote: "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....'" (93)

Applying this rule to Memoirs, Powell easily discerned the Court's holding from the four concurring opinions in that case. (94) The Memoirs Court held, by a vote of six to three, that the materials at issue were not "obscene" and must be accorded First Amendment protection. (95) Justices Black and Douglas--the First Amendment absolutists--each concurred on the grounds that the government could never censor speech. (96) Justice Stewart concurred on the grounds that the government could only censor "hard-core" pornography, and that the materials at issue in Memoirs were not "hard-core." (97) Finally, Justice Brennan wrote for a plurality of three Justices who adopted a new test for "obscenity," which provided that "three elements must coalesce" before any material is deemed "obscene." (98) The plurality stated:
   [I]t must be established that (a) the dominant theme of the
   material taken as a whole appeals to a prurient interest in sex;
   (b) the material is patently offensive because it affronts
   contemporary community standards relating to the description or
   representation of sexual matters; and (c) the material is utterly
   without redeeming social value. (99)


Without much elaboration, Justice Powell stated that the Memoirs plurality was based on the narrowest grounds, and therefore constituted the Court's holding. (100)

Having discerned the Court's holding in Memoirs, Powell announced that "Memoirs ... was the law" prior to Miller. (101) Powell then compared the Miller test to the Memoirs test, noting that part (c) of the Miller test was broader in scope than part (c) of the Memoirs test. (102) Part (c) of the Miller test--which labeled materials "obscene" if they "lack[ed] serious literary, artistic, political, or scientific value" (103)--expanded criminal liability by labeling a broader swath of materials as "obscene" than part (c) of the Memoirs test--which labeled materials "obscene" only if they were "utterly without redeeming social value." (104) Accordingly, the Supreme Court reversed the Sixth Circuit's judgment and remanded the case for a new trial, (105) holding that the convictions violated the Due Process Clause of the Fifth Amendment because "Miller undeniably relaxe[d] the Memoirs restrictions." (106) Finally, the Court noted that at their new trial the petitioners would be entitled to jury instructions under the Memoirs plurality's three-part test. (107)

In sum, the byproduct of the Court's decision in Marks was the establishment of the Supreme Court's only rule for interpreting its plurality decisions. (108) The Court adopted the narrowest-grounds doctrine without explanation or justification, (109) leaving further clarification and analysis to lower courts and commentators. (110)

C. The Marks Doctrine Examined

1. The Conventional View of the Marks Doctrine: Marks as an Application of Majoritarianism to Supreme Court Plurality Decisions

Most scholars and lower courts that have analyzed the Marks doctrine have criticized the rule's perceived analytical shortcomings, argued that it should not be widely applicable, or both. (111) Most courts and commentators would agree that the narrowest-grounds opinion is the concurring opinion "that is most nearly confined to the precise fact situation before the Court, rather than [a concurring opinion] that states more general rules." (112) Another way of stating this definition is that the narrowest-grounds opinion is "the rationale offered in support of the result that would affect or control the fewest cases in the future." (113) Moreover, virtually all courts and commentators would require the narrowest-grounds opinion to have at least the implicit support of a majority of Justices concurring in the judgment. (114) Finally, many courts and commentators circumscribe the Marks doctrine's reach by deeming it applicable only when "one opinion is a logical subset of ... broader opinions," (115) such that the concurring rationales "fit[] within each other like Russian dolls." (116)

The Supreme Court itself seems to take a limited view of the Marks doctrine's applicability, with various Justices indicating their disapproval of Marks and even suggesting alternative approaches in several cases. (117) As the First Circuit recognized in United States v. Johnson, (118) at least some members of the Court have indicated that it may be permissible for lower courts to "examine the plurality, concurring and dissenting opinions to extract the principles that a majority has embraced" in any plurality decision. (119) In other words, the Court appears to have sanctioned head-counting across all of the opinions as a "method of aggregating [the] individual Justices' votes." (120) Therefore, the Court seems to have taken the position that majoritarianism should govern the interpretation of plurality decisions in lower courts. (121)

At least one lower court has reached a similar conclusion by exhaustively analyzing the Marks doctrine. (122) In King v. Palmer, (123) the Court of Appeals for the District of Columbia Circuit examined the Supreme Court's application of the narrowest-grounds rule and concluded that the narrowest-grounds opinion puts forth a test with which a majority of the Court "must necessarily agree as a logical consequence of [their] own, broader position[s]." (124) For example, recall from the discussion of Marks that there were four concurring opinions in Memoirs: Justices Black, Douglas, and Stewart each wrote individual concurrences, and Justice Brennan wrote for a plurality of three Justices. (125) These four opinions boiled down to three separate views: obscenity could never be banned (Justices Black and Douglas); (126) only "hard-core" pornography could be banned (Justice Stewart); (127) and only material that is "utterly without redeeming social value" could be banned (three-Justice plurality). (128) The King court deemed both Justice Stewart's concurrence and the plurality opinion logical subsets of Justices Black and Stewart's absolutist position, with which Justices Black and Stewart necessarily had to agree as a logical consequence of their view. (129) Ultimately, the court found the plurality opinion controlling under Marks, however, because "the plurality of three in effect spoke for five Justices," (130) and Justice Stewart's opinion "would only have spoken for three." (131) Thus, the court concluded that an opinion is only eligible for holding status under Marks if it commands an "implicit majority of the Court." (132) Consequently, the court held that "Marks is workable ... only when one opinion is a logical subset of other, broader opinions," such that an "implicit majority" can be cobbled together in support of a narrow legal proposition. (133)
   When, however, one opinion supporting the judgment does not fit
   entirely within a broader circle drawn by the others, Marks is
   problematic. If applied in situations where the various opinions
   supporting the judgment are mutually exclusive, Marks will turn a
   single opinion that lacks majority support into national law. When
   eight of nine Justices do not subscribe to a given approach to a
   legal question, it surely cannot be proper to endow that approach
   with controlling force, no matter how persuasive it may be. (134)


In the end, the King court read the Marks doctrine merely as an application of the principle of majoritarianism to one specific category of Supreme Court plurality decisions: those in which the concurring opinions are logically nested within one another like "Russian dolls." (135) So viewed, the Marks doctrine is merely a tool that helps lower courts ascertain the narrow legal proposition that is supported by a majority and that is consistent with the disposition of the case. (136)

2. Social Choice Theory and the Marks Doctrine: Marks as an Application of the Condorcet Criterion to Supreme Court Plurality Decisions

At least one commentator has presented a slightly more nuanced view of the Marks doctrine using social choice theory. (137) Professor Maxwell L. Stearns has normatively defended the application of the Marks doctrine to the "vast majority" of plurality decisions, (138) including most cases in which the concurring opinions do not fit within one another like "Russian dolls." (139) Accordingly, the balance of this section will examine the Marks doctrine through the lens of social choice theory.

a. Introduction to Social Choice Theory

Social choice theory is the study of "collective decision-making processes," or the ways in which individual preferences or judgments are aggregated to form collective preferences or judgments. (140) One can trace the origin of social choice theory to the Marquis de Condorcet, a French philosopher and mathematician who developed a theory--called the Condorcet criterion--for aggregating individual preferences into "group preferences in the absence of a first-choice majority candidate." (141) Professor Stearns states the Condorcet criterion as follows: "Condorcet proposed that in groups of three or more persons choosing among three or more options, in the absence of a first-choice majority winner, the outcome chosen should be that which defeats all other available options [by majority vote] in direct pairwise contests." (142) Such an option is called a Condorcet winner, and rules that ensure that Condorcet winners prevail satisfy the Condorcet criterion. (143)

Professor Stearns designed an illustrative example that is helpful in understanding how the Condorcet criterion operates. (144) Suppose three persons are asked to choose among three options--A, B, and C--which can represent, for example, three different rationales in support of the outcome of a given case. (145) Suppose further that all three persons rank the choices in order from the most appealing to the least appealing, as follows: Person 1 ranks the options A, B, C; Person 2 ranks the options B, C, A; and Person 3 ranks the options C, B, A. (146) These ordinal rankings can be depicted as follows:

None of the three options has majority support as a first-choice candidate, so the group tries to satisfy the Condorcet criterion by selecting a winner through a series of pairwise contests, hoping that this will reveal a dominant second-choice candidate. (147) These contests can be illustrated as follows:

In the contest between A and B, B wins because Persons 2 and 3 chose B over A. (148) In the contest between B and C, B wins because Persons 1 and 2 chose B over C. (149) The winner of the contest between A and C is irrelevant because B defeats both A and C in direct pairwise contests. (150) Accordingly, the voting rules that the group used satisfy the Condorcet criterion because the rules identify B--the option that defeats all other available options in direct pairwise contests--as the winner. (151)

Social choice scholars place confidence in rules that identify Condorcet winners because these rules ensure that the will of the majority is not thwarted when no first-choice majority winner exists. (152) Many social choice scholars believe that if there is no first-choice majority winner, it is inappropriate to simply deem the candidate with a plurality of votes the winner. (153) These scholars reason that "when an alternative opposed by a majority wins, quite clearly the votes of some people are not being counted the same as other people's votes." (154) Unlike plurality voting rules, Condorcet-producing voting rules are consistent with "the notion of equality and 'one man, one vote,'" because they do not permit an option disfavored by a majority to become a winner. (155) Instead, the group's collective dominant second choice emerges as the winner--a result that is more consistent with the goal that each person should have equal voting power. (156)

There are two significant defects, however, with rules that satisfy the Condorcet criterion. (157) First, such rules do not account for the intensity of individuals' preferences. (158) Second, as the Condorcet paradox illustrates, a Condorcet winner will not exist in every case. (159) Returning to Stearns's example, suppose the same three persons are asked to choose among A, B, and C, but suppose that in this case they rank their choices as follows: Person 1 ranks the options A, B, C; Person 2 ranks the options B, C, A; and Person 3 ranks the options C, A, B.160 These ordinal rankings can be shown as follows:

None of the three options has majority support as a first-choice candidate, so the group again decides to select a winner by taking a series of pairwise contests, hoping that this will reveal a dominant second-choice candidate. (161)

These contests can be demonstrated as follows:

In the contest between A and B, A wins because Persons 1 and 3 chose A over B. (162) In the contest between A and C, C wins because Persons 2 and 3 chose C over A. (163) In the contest between B and C, B wins because Persons 1 and 2 prefer B to C. (164) No Condorcet winner, or dominant second choice, emerges because the group does not prefer any one choice to all the others in direct pairwise contests. (165) This example demonstrates the Condorcet paradox: A dominant second-choice candidate will not always exist because group preferences are not always transitive. (166)

b. Social Choice Theory and the Marks Doctrine

With this background, it is appropriate to examine the Marks doctrine through the lens of social choice theory. Professor Stearns has normatively defended the Marks doctrine as a Condorcet-producing rule that "restores the Court's rationality by singling out as the holding that opinion which is a Condorcet winner." (167) Recall that according to Justice Powell, the narrowest-grounds opinion in Memoirs was Justice Brennan's plurality. (168) Professor Stearns has demonstrated that Justice Brennan's plurality opinion also emerges as the Condorcet-winning opinion in Memoirs if the opinions are subjected to direct pairwise contests. (169) Professor Stearns labels the opinions in Memoirs as follows: A (Douglas and Black concurrences), (170) B (Stewart concurrence), C (Brennan plurality), and D (Clark, Harlan, and White dissents). (171) To simplify the presentation, Stearns treats the A and B opinions as a single opinion, designated as the A/B opinion, which leaves three choices for indicating the Justices' preferences: A/B, C, and D. (172) Accordingly, the ordinal rankings of the A/B group are A/B, C, D, and the rankings of the D group are D, C, A/B. (173) The C group's rankings are immaterial because the outcome is the same whether they are C, A/B, D or C, D, A/B: option C (the Brennan plurality) becomes the Condorcet winner. (174) This result can be illustrated as follows:

From this analysis, Stearns concludes that the Marks doctrine "is best understood as an application of the Condorcet criterion to fractured panel Supreme Court decisions." (175)

Professor Stearns has further observed that, like Justice Brennan's opinion in Memoirs, almost every opinion that the Marks doctrine identifies as the narrowest-grounds opinion also emerges as a Condorcet winner. (176) By locating the Condorcet-winning opinion, "the narrowest grounds doctrine identifies as the opinion stating the holding that opinion which represents a dominant, and thus stable, second choice." (177) Professor Stearns also takes a rather optimistic view of the Marks doctrine by concluding that it can apply to at least some cases in which the concurring opinions do not fall neatly within each other like "Russian dolls." (178) In fact, unlike many other scholars, (179) Stearns maintains that the Marks doctrine will only produce indeterminate holdings in a very small category of plurality decisions--those that exhibit the Condorcet paradox, in which no Condorcet winner exists. (180) Stearns provides a taxonomy of Supreme Court plurality decisions using three paradigms that "embrace every conceivable" plurality decision. (181) The three paradigms are: cases with a unidimensional issue spectrum; (182) cases with a multidimensional issue spectrum and symmetrical preferences; (183) and cases with a multidimensional issue spectrum and asymmetrical preferences. (184) According to Stearns, the narrowest-grounds doctrine identifies as the Court's holding the Condorcet-winning opinion in cases within the first and second paradigms. (185) The Marks doctrine only fails to identify a holding in those rare cases that fall within the third paradigm because they represent Condorcet paradoxes--that is, they do not contain discernable Condorcet-winning opinions. (186) Professor Stearns completes his normative defense of the Marks doctrine by concluding that it ensures a holding in the "maximum number" of plurality decisions; it ensures that the holding is most likely to be a stable, Condorcet-winning opinion if one exists; and it promotes principled decision-making on the Court. (187)

Viewing the Marks doctrine as a Condorcet-producing rule, however, it also becomes necessary to consider the two defects inherent in rules that satisfy the Condorcet criterion. (188) Recall that the first defect is that such rules do not take into account intensities of preference. (189) This defect may be less applicable to the Supreme Court than to other contexts since Supreme Court Justices typically explain their reasoning, thereby potentially accounting for their intensities of preference. (190) The second defect with rules that satisfy the Condorcet criterion is that a Condorcet winner will not always exist. (191) The impact of this deficiency is mitigated by the fact that "in the vast majority of fractured panel cases" a Condorcet winner does exist. (192) Therefore, these two defects appear to have limited deleterious effects upon the operation of the Marks doctrine. (193)

The Marks doctrine, as understood through Professor Stearns's social choice framework, appears to be an extraordinarily effective means of identifying the holding in plurality decisions. (194) According to Professor Stearns's social choice framework, the narrowest-grounds doctrine would seem to be an interpretive rule that lower courts can and should employ when following nearly all plurality decisions. (195)

D. Evaluating the Competing Visions of Marks After Rapanos v. United States

Given the incompatibility of the conventional and social choice views of the Marks doctrine, an analysis of the two approaches is necessary to determine which is preferable. Part III of this Note provides a normative analysis of the two discordant approaches to Marks by engaging in a case study of the consequences of applying each to Rapanos v. United States. Rapanos is a recent Supreme Court plurality decision in which the putative narrowest-grounds opinion "does not fit entirely within a broader circle drawn by the" plurality. (196) Therefore, Rapanos is an ideal case with which to test the two competing views of the Marks doctrine outlined above, and identify which is more normatively justifiable. (197) Before examining these competing visions of the Marks doctrine, however, an overview of the Supreme Court's decision in Rapanos is in order.

In Rapanos the Court was asked to decide whether four wetlands were subject to federal regulatory jurisdiction as "waters of the United States" under the Clean Water Act. (198) In a five-to-four decision, the Court vacated the judgment below and remanded the case for further proceedings consistent with the new standards announced in the Court's opinions. (199) The opinions included a four-Justice plurality by Justice Scalia, a single-Justice concurrence by Justice Kennedy, and a four-Justice dissent by Justice Stevens. (200) Justice Scalia's plurality opinion provided that "waters of the United States" are "only relatively permanent, standing or flowing bodies of water." (201) With respect to wetlands, Justice Scalia wrote that "only those wetlands with a continuous surface connection to bodies that are 'waters of the United States' in their own right ... are ... covered by the Act." (202) Justice Kennedy's standard for federal jurisdiction over wetlands was more malleable in that he rejected the plurality's requirement of a continuous surface connection and would require, instead, that a wetland possess a "'significant nexus' to waters that are or were navigable in fact or that could reasonably be so made." (203) Finally, Justice Stevens's dissent would have upheld the exercise of federal jurisdiction in Rapanos as reasonable and consistent with the purposes of the Clean Water Act. (204)

Applying the narrowest-grounds rule to Rapanos, Justice Kennedy's opinion appears to emerge as the holding of the Court. (205) Recall that under the Marks doctrine the Court's holding is the concurring opinion that will affect or control the fewest cases in the future. (206) Thus, whichever concurrence will be more likely to sustain federal jurisdiction over wetlands in future cases will be controlling. (207) Between the two concurring opinions, Justice Kennedy's more flexible "significant nexus" test will sustain federal jurisdiction more often than Justice Scalia's rigid test requiring a physical connection, so Justice Kennedy's concurrence appears to be the narrowest-grounds opinion. (208)

Nevertheless, two Justices expressed disapproval of this analysis. (209) Chief Justice Roberts filed a brief concurrence in which he bemoaned the situation in Rapanos. (210) The Chief Justice wrote that lower courts interpreting Rapanos "will now have to feel their way on a case-by-case basis." (211) Justice Stevens authored a dissent in which he directed that in the future "the United States may elect to prove jurisdiction under either [Justice Scalia's or Justice Kennedy's] test." (212) Both Chief Justice Roberts and Justice Stevens seem to have recognized that in some rare circumstances Justice Scalia's test will be satisfied while Justice Kennedy's test will not. (213) If, for example, a wetland shares a "slight surface hydrological connection" with a "water[] of the United States," but the connection is so insubstantial that the wetland does not share a "significant nexus" with the covered waterway, Justice Scalia's test will be met, while Justice Kennedy's will not. (214) In this situation, Justice Stevens advised, it would be appropriate for a lower court to uphold jurisdiction because the four dissenters in Rapanos would join the plurality in sustaining federal jurisdiction. (215) Thus, Chief Justice Roberts and Justice Stevens both suggested that when lower courts interpret Rapanos they should not feel bound in all cases to follow Justice Kennedy's concurrence under the Marks doctrine. (216)

III. ANALYSIS

A. Rapanos and the Conventional View of Marks

The Marks doctrine is essentially inapplicable to Rapanos under the conventional view. Recall that the conventional view maintains that Marks is only applicable when the concurring opinions are logically nested within one another like "Russian dolls," such that an explicit or implicit majority supports a narrow legal proposition consistent with the Court's judgment. (217) As Chief Justice Roberts and Justice Stevens realized, the plurality opinion and Justice Kennedy's concurrence in Rapanos do not fit within one another like "Russian dolls"; that is, Justice Kennedy's concurrence is not a logical subset of the plurality opinion. (218) Thus, conventionalists would deem Marks inapplicable to Rapanos because no legal proposition enjoys the support of a majority of the Court. (219) Consequently, under the conventional view, Rapanos does not establish any binding legal principles; instead, the precedential value of Rapanos lies only in its result. (220) Lower courts adhering to the conventional view should follow Justice Stevens's instruction to uphold federal jurisdiction under Rapanos if either the plurality's or Justice Kennedy's test is satisfied. (221) Conversely, if neither the plurality's nor Justice Kennedy's test is satisfied, lower courts must deny federal jurisdiction. (222)

B. Rapanos and the Social Choice View of Marks

Under the social choice view, however, Marks is applicable to Rapanos, and Justice Kennedy's opinion is controlling. (223) Recall that social choice scholars are of the view that the Marks doctrine is a normatively defensible interpretive rule for plurality decisions because Marks identifies as the holding of the Court the opinion most likely to be a Condorcet-winning opinion, if one exists. (224) Social choice theorists favor the Marks doctrine because in cases in which none of the Justices' first-choice options commands a majority, the group's collective dominant second choice will likely emerge as the Court's holding under Marks. (225) Accordingly, social choice adherents would support the application of Marks to Rapanos if the narrowest-grounds opinion also emerges as the Condorcet-winning opinion in that case. (226) As explained above, Justice Kennedy's opinion appears to be the narrowest-grounds opinion in Rapanos. (227) The analysis that follows illustrates that social choice theorists would support the application of Marks to Rapanos because Justice Kennedy's opinion also emerges as the Condorcet winner in that case. (228)

All three opinions in Rapanos can be cast along a unidimensional issue continuum according to the breadth of the standards in each for limiting federal jurisdiction over wetlands. (229) For purposes of illustration, a letter will be assigned to each opinion as follows: A (Scalia plurality), B (Kennedy concurrence), C (Stevens dissent).230 Again, to determine the Condorcet winner, one must first rank the opinions in order of preference for the A, B, and C positions. (231)

The A (Scalia) camp would rank its preferences A, B, C, and the C (Stevens) camp would rank its preferences C, B, A. (232) The B (Kennedy) position's rankings are irrelevant because whether they are B, C, A or B, A, C, the result is the same. (233) If one takes direct pairwise comparisons of the available options, option B (the Kennedy concurrence) emerges as the Condorcet winner just as option B became the Condorcet winner in the illustration in Part II.C.2.a above. (234)

Thus, the Marks doctrine identifies as the holding in Rapanos the stable and dominant second choice, or Condorcet-winning opinion. (235) As a result, social choice theorists would support the application of Marks to Rapanos.

C. A Normative and Positive Analysis of the Competing Visions of Marks as Applied to Rapanos

Professor Stearns's expansive vision of the Marks doctrine as an application of the Condorcet criterion to Supreme Court plurality decisions is appealing. Under Stearns's social choice theory of Marks, the narrowest-grounds rule identifies the Supreme Court's holding in virtually all plurality decisions. (236) This result is desirable not only because it means that Marks is widely applicable, but also because Marks appears to be normatively justifiable. (237) According to Stearns, the Marks doctrine is a normatively justifiable interpretive rule for Supreme Court plurality decisions primarily because Marks singles out as the Court's holding the opinion that emerges as the Condorcet winner. (238) As explained above, social choice theorists favor voting systems that select Condorcet winners because these systems ensure that the will of the majority is not thwarted when no first-choice majority winner exists; instead, the group's collective dominant second choice is selected as the winner. (239)

The fact that the Marks doctrine satisfies the Condorcet criterion, however, is an insufficient justification for the narrowest-grounds rule. (240) After all, one might object that a second-choice opinion should never be accorded precedential value; that is, before an opinion becomes binding law, it should be endorsed as the first choice of a majority of Justices. (241) Ultimately, the problem with Stearns's social choice justification for the Marks doctrine is that it assumes that it is necessary, or at least desirable, to select one opinion as a "winner" in Supreme Court plurality decisions. (242) In other words, defending the Marks doctrine as a Condorcet-producing rule does justify the "winners" that Marks selects, but does not justify the act of selecting a "winner" in the first place. (243)

Assuming that it is necessary or desirable to select one opinion as a "winner" in plurality decisions, the Condorcet criterion provides a valid and indeed a very persuasive normative justification for the Marks doctrine. (244) Cases like Rapanos illustrate, however, that the assumption that lower courts must select one opinion as a "winner" in plurality decisions is tenuous at best. This assumption is flawed because selecting a "winner" can actually thwart the will of a majority of the Court--the very result the Condorcet criterion aims to avoid. (245) For example, the social choice view would justify applying Marks to Rapanos and selecting Justice Kennedy's concurrence as the sole "winner" and only binding opinion in Rapanos. (246) This approach would produce absurd results in cases in which the plurality's surface-water connection test is satisfied, but Justice Kennedy's "significant nexus" test is not. In such a case, a lower court applying Marks to Rapanos would have to invalidate federal jurisdiction under the Clean Water Act, even though an eight-to-one Rapanos majority would have upheld jurisdiction. (247) There is no good reason to select one concurring opinion as the single "winner" when, as in Rapanos, a majority of the Court has explicitly or implicitly rejected that opinion's approach. (248) As the King court recognized, "When eight of nine Justices do not subscribe to a given approach to a legal question, it surely cannot be proper to endow that approach with controlling force, no matter how persuasive it may be." (249) Accordingly, Justice Stevens's head-counting approach in Rapanos is more normatively justifiable than simply deeming Justice Kennedy's opinion the holding of the Court because Justice Stevens's approach ensures that the outcome preferred by an actual majority of Justices is given effect in future cases. (250)

Moreover, as a positive matter, it seems likely that when the Marks Court first adopted the narrowest-grounds rule the Justices grounded their decision on the conventional view rather than on the social choice view. (251) After all, Supreme Court Justices are generally not social choice scholars, and it is reasonable to assume that the Justices who decided Marks were not even aware of such an esoteric theory as the Condorcet criterion. (252) It is much more likely that the principle of majoritarianism was at the forefront of the Justices' minds when they adopted the narrowest-grounds rule in Marks. (253) Thus, it is more appropriate to understand Marks under the conventional theory than under the social choice theory.

D. The Marks Doctrine's Limited Applicability

Having concluded that Marks is best understood as an application of the principle of majoritarianism to Supreme Court plurality decisions, it becomes necessary to clearly identify the Marks doctrine's limitations. As explained above, Marks can only apply to those plurality decisions in which "one opinion is a logical subset of ... broader opinions," (254) such that the concurring rationales "fit[] within each other like Russian dolls." (255) The reason for this limitation is that a concurring opinion's narrow legal proposition in a plurality decision will have the implicit support of a majority of Justices concurring in the judgment only if the concurring opinions of a majority are nested in this way. (256) When, as in Rapanos, the concurring opinions do not form a logical set and subset, the Marks doctrine is inapplicable. (257) Unfortunately, this means that Marks only functions properly in a limited number of Supreme Court plurality decisions. (258)

Partly as a response to the Marks doctrine's limited applicability, some commentators have offered more complete systems of interpretive rules for plurality decisions. (259) The most persuasive suggestions establish rather comprehensive approaches to interpreting splintered decisions. (260) While it is beyond the scope of this Note to examine these alternatives thoroughly, it is worth noting that lower courts might find it helpful to refer to these frameworks when attempting to decipher Supreme Court plurality decisions. (261)

Alternatively, and perhaps more simply, lower courts interpreting plurality decisions should engage in a two-step process that will produce results consistent with either the preferred rationale or the preferred outcome of a majority of Justices. (262) First, a court should decide if Marks applies by determining whether the concurring opinions are nested in such a way that an implicit majority exists for a narrow legal proposition that is consistent with the outcome. (263) If such a majority can be cobbled together, Marks directs lower courts to follow the narrow legal proposition that the majority has endorsed. (264) If there is no majority support among the concurring Justices for a narrow legal proposition, then Marks does not apply and lower courts should proceed to step two. At the second step, lower courts should treat plurality decisions as binding only for the result that a majority of the Court would support based upon their stated rationales. (265) This dispositional majority should be constructed by analyzing the reasoning in all of the opinions--including any dissents--to determine the result that a majority of the deciding Court would support, given their stated rationales. (266) This process would permit lower courts interpreting plurality decisions to reach the common-sense conclusion that Justice Stevens endorsed in Rapanos: Where there is no majority support for a narrow legal proposition consistent with the outcome, lower courts should follow the result that a majority of the deciding Court would support. (267) Unless the Supreme Court reduces its output of plurality decisions, this sort of "head-counting will continue to be a practical and necessary form of judicial reasoning," (268) as Justice Stevens recognized in Rapanos. (269)

IV. CONCLUSION

If history is any guide, the Supreme Court will continue to hand down a significant number of plurality decisions in the future. Lower courts, therefore, must clearly understand how to properly read and interpret Supreme Court plurality decisions. That understanding necessarily includes an appreciation for the limited applicability of the Marks doctrine. Although Professor Stearns provides an intriguing normative defense of the Marks doctrine using social choice theory, the prevailing view that Marks is simply an application of the principle of majoritarianism to Supreme Court plurality decisions seems preferable in light of Rapanos. Therefore, lower courts should take care to apply Marks only to those cases in which the concurring opinions are logically nested such that an implicit majority exists in support of a narrow legal proposition. Absent such majority support for a legal rule, lower courts should decline to apply Marks and should instead follow the result supported by a majority of the deciding Court. While many plurality decisions will fail to establish binding legal principles under this approach, the disposition endorsed by a majority of the Court will remain determinative in future cases. In the end, this result is more desirable because it gives effect to the first choice of a majority of Justices--with respect to either the rationale or the outcome--and does not transform "a single opinion that lacks majority support into national law." (270)

(1.) Response, Professor Laurence Tribe's Response, 28 PEPP. L. REV. 537, 541 (2001) (recounting Justice Brennan's famous quip to his law clerks). This quotation is Professor Tribe's formulation of Justice Brennan's view that the most important thing a United States Supreme Court Justice or her law clerks can do is to learn to count to five. Id.; see also Anthony Lewis, In Memoriam, William J. Brennan, Jr., 111 HARV. L. REV. 29, 32 (1997) ("Justice Brennan used to joke that a critical talent for a Supreme Court Justice was the ability to count to five."); Abner Mikva, The Scope of Equal Protection, 2002 U. CHI. LEGAL F. 1, 8 (2002) ("[A]s the late Justice Brennan used to say, the first rule of the Supreme Court is that you have to be able to count to five.").

(2.) See Maxwell L. Stearns, Should Justices Ever Switch Votes?: Miller v. Albright in Social Choice Perspective, 7 SUP. CT. ECON. REV. 87, 110 (1999) (explaining Court rarely faces impasse when deciding on judgment). In cases where the Court must choose among three possible judgments--affirm, reverse, or remand--there is a risk that no judgment will receive a majority of five votes. See id. Nevertheless, the Court has avoided this potential problem because at least one Justice has almost always been willing to switch her vote to produce a majority with respect to the judgment. Id. & n.76. See generally H. Ron Davidson, The Mechanics of Judicial Vote Switching, 38 SUFFOLK U. L. REV. 17 (2004) (analyzing cases in which one Justice switched vote to achieve majority consensus regarding disposition).

(3.) See generally John F. Davis & William L. Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974 DUKE L.J. 59 (1974) (cataloguing and criticizing Supreme Court plurality decisions); Adam S. Hochschild, Note, The Modern Problem of Supreme Court Plurality Decision: Interpretation in Historical Perspective, 4 WASH. U. J.L. & POL'Y 261 (2000) (arguing Court should return to pre-Marshall-era modesty to avoid plurality decisions); Ken Kimura, Note, A Legitimacy Model for the Interpretation of Plurality Decisions, 77 CORNELL L. REV. 1593 (1992) (criticizing plurality decisions and proposing new interpretive model); Linda Novak, Note, The Precedential Value of Supreme Court Plurality Decisions, 80 COLUM. L. REV. 756 (1980) (noting value of plurality decisions and discussing several interpretive techniques); Note, Plurality Decisions and Judicial Decisionmaking, 94 HARV. L. REV. 1127 (1981) [hereinafter Plurality Decisions] (arguing "value-laden" reasoning increases number of Court's plurality decisions); Comment, Supreme Court No-Clear-Majority Decisions: A Study in Stare Decisis, 24 U. CHI. L. REV. 99 (1956) [hereinafter A Study in Stare Decisis] (examining lower courts' citation of Supreme Court plurality decisions); Mark Alan Thurmon, Note, When the Court Divides: Reconsidering the Precedential Value of Supreme Court Plurality Decisions, 42 DUKE L.J. 419 (1992) (analyzing plurality decisions and proposing alternative to Marks doctrine); Douglas J. Whaley, Comment, A Suggestion for the Prevention of No-Clear-Majority Judicial Decisions, 46 TEX. L. REV. 370 (1968) (advocating per se rule making plurality opinion binding precedent).

(4.) See Novak, supra note 3, at 756 n.1 (describing plurality decisions). For the purposes of this Note, "plurality decision" refers to the situation in which a majority of the Court agrees upon the judgment but not upon a single rationale, such that the Court disposes of the case with no opinion of the Court. See, e.g., Rapanos v. United States, 126 S. Ct. 2208 (2006) (circumscribing Army Corps of Engineers' jurisdiction over wetlands under Clean Water Act); Hamdi v. Rumsfeld, 542 U.S. 507 (2004) (establishing due process requirements for United States citizens detained as enemy combatants); Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987) (construing fee-shifting provision of Clean Air Act); see also Novak, supra note 3, at 756 n.1 (defining "plurality decision"). "Plurality opinion," on the other hand, refers to the one concurring opinion that is joined by more Justices than any other concurring opinion. See, e.g., Rapanos, 126 S. Ct. at 2214-35 (plurality opinion); Hamdi, 542 U.S. at 509-39 (plurality opinion); Del. Valley, 483 U.S. at 713-31 (plurality opinion). But see Novak, supra note 3, at 756 n.1 (defining "plurality opinion" as lead opinion regardless of number of votes garnered).

(5.) See Davis & Reynolds, supra note 3, at 59-61 (noting increase in plurality decisions); Novak, supra note 3, at 756 & n.2 (discussing increase and providing data); Plurality Decisions, supra note 3, at 1127 & n.1 (observing increase with particular emphasis on Burger Court); A Study in Stare Decisis, supra note 3, at 99100 (noting increase and providing data); Whaley, supra note 3, at 370 (recognizing plurality decisions have "grow[n] stronger through the years"). But see STEPHEN BREYER, ACTIVE LIBERTY 110 (2005) (emphasizing Supreme Court decides forty percent of its cases unanimously).

(6.) Davis & Reynolds, supra note 3, at 77 (arguing ideological splits lead to "polarized decisions"); Novak, supra note 3, at 759 (suggesting combination of volatile social issues and ideological splits causes plurality decisions).

(7.) Davis & Reynolds, supra note 3, at 77-80 (concluding increased workload one cause of upsurge in plurality decisions); Novak, supra note 3, at 759 (suggesting heavier workload reduces time Justices spend building consensus). This factor probably does not explain the Rehnquist or Roberts Courts' plurality decisions because the Supreme Court's caseload diminished substantially under Chief Justice Rehnquist and continues to decline under Chief Justice Roberts. See Arthur D. Hellman, The Shrunken Docket of the Rehnquist Court, 1996 SUP. CT. REV. 403 (1996) (examining Chief Justice Rehnquist's effect on Court's docket size); David Von Drehle, Inside the Incredibly Shrinking Role of the Supreme Court, TIME, Oct. 22, 2007, at 44 (noting Supreme Court decided only sixty-eight cases in October Term 2006, fewer than any term since 1953); Tony Mauro, Reading the Roberts Court, LAW.COM, Aug. 17, 2007, http://www.law.com/jsp/article.jsp?id=1187168522747# (providing data and discussion of Roberts Court's docket size).

(8.) Davis & Reynolds, supra note 3, at 80-81 (suggesting increase in volatile social issues and ideological splits generate more plurality decisions); Novak, supra note 3, at 759 & n.15 (noting increase in volatile social issues before the Court).

(9.) Novak, supra note 3, at 759 (highlighting Chief Justice's duty to promote compromise). Chief Justice Roberts certainly recognizes the important role the Chief Justice is expected to play in achieving majority consensus on the Court. See Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring) ("It is unfortunate that no opinion commands a majority of the Court...."); Reynolds Holding, In Defense of Dissents, TIME, Feb. 26, 2007, at 44 (acknowledging Chief Justice Roberts's "push for unanimity"). Thus far, however, the Roberts Court has not been defined by unanimity. See Mauro, supra note 7 (observing high percentage of five-to-four decisions and low percentage of unanimous decisions, but noting fewer plurality decisions than modern historical average).

(10.) Plurality Decisions, supra note 3, at 1140-46 (arguing "substantive" and value-laden reasoning leads to disagreement).

(11.) See supra note 5 and accompanying text (observing steady increase in Supreme Court plurality decisions).

(12.) See, e.g., Hochschild, supra note 3, at 261 ("[P]lurality decision[s] hold[] ambiguous precedential value."); Plurality Decisions, supra note 3, at 1128-30 (describing harmful consequences of plurality decisions); Thurmon, supra note 3, at 419 (noting plurality decisions often do more harm than good).

(13.) See Kimura, supra note 3, at 1594 (labeling plurality decisions "most unstable form of case law").

(14.) Whaley, supra note 3, at 371 (arguing divided decisions could diminish Court's legitimacy and authority). But see Earl M. Maltz, The Function of Supreme Court Opinions, 37 HOUS. L. REV. 1395, 13971400 (2000) (concluding result affects public opinion far more than rationale).

(15.) Frank H. Easterbrook, Ways of Criticizing the Court, 95 HARV. L. REV. 802, 804 (1982) (noting arguments of Court's critics).

(16.) See id. at 810-11; Novak, supra note 3, at 760; see also Holding, supra note 9, at 44 (criticizing Chief Justice Roberts's push for unanimous decisions and emphasizing value of concurrences and dissents). "[E]xpression of differences in view or even in emphasis converging toward the same result makes for the clarity of candor and thereby enhances the authority of the judicial process." John M. Rogers, "I Vote This Way Because I'm Wrong": The Supreme Court Justice as Epimenides, 79 KY. L.J. 439, 447 n.22 (1991).

(17.) Novak, supra note 3, at 760.

(18.) Easterbrook, supra note 15, at 810-11 (arguing plurality decisions reveal "position[s] that may prevail after repeated litigation").

(19.) Novak, supra note 3, at 760.

(20.) See Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (declining to treat Justice Powell's opinion in Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978), as binding precedent).

(21.) See Novak, supra note 3, at 760.

(22.) Novak, supra note 3, at 760. This is particularly true in cases in which the Marks doctrine fails to locate the Court's holding. See infra Part III.D (explaining Marks doctrine's limitations). Lower courts will be most likely to distinguish these cases and develop new rationales. See id.

(23.) See Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 TEX. L. REV. 1, 54-61 (1994) (offering normative analysis of power diffusion within judicial hierarchy); Novak, supra note 3, at 760 (noting value of lower courts' ability to explore alternative rationales).

(24.) See supra note 5 and accompanying text (observing steady increase in Supreme Court plurality decisions).

(25.) 430 U.S. 188, 193 (1977). The Marks Court was interpreting one of its prior plurality decisions that defined "obscenity." See id. at 193-94; see also A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Att'y Gen. of Mass., 383 U.S. 413, 413-41 (1966) [hereinafter Memoirs v. Massachusetts or Memoirs] (plurality decision construed in Marks).

(26.) Marks, 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell & Stevens, JJ.)).

(27.) Maxwell L. Stearns, The Case for Including Marks v. United States in the Canon of Constitutional Law, 17 CONST. COMMENT. 321, 322 n.2 (2000) (noting "Marks doctrine" and "narrowest grounds doctrine" interchangeable terms).

(28.) See Stearns, supra note 27, at 322-23 (explaining when Marks doctrine does and does not work); Thurmon, supra note 3, at 421 (observing Marks doctrine does not always work); see also infra Part III.D (observing Marks doctrine's limited applicability).

(29.) Nichols v. United States, 511 U.S. 738, 745 (1994) (attempting to apply Marks to Baldasar v. Illinois, 446 U.S. 222 (1980)); see also Rapanos v. United States, 126 S. Ct. 2208, 2236 (2006) (Roberts, C.J., concurring) (intimating Marks may be difficult to apply to Rapanos); Grutter v. Bollinger, 539 U.S. 306, 325 (2003) (declining to apply Marks to Bakke); United States v. Johnson, 467 F.3d 56, 65-66 (1st Cir. 2006) (collecting cases in which Supreme Court arguably "moved away from ... Marks formula"), cert. denied, 76 U.S.L.W. 3186 (U.S. Oct. 9, 2007) (No. 07-9).

(30.) See infra Part II.C (exploring conventional and social choice approaches to Marks doctrine). See generally W. Jesse Weins, Note, A Problematic Plurality Precedent: Why the Supreme Court Should Leave Marks over Van Orden v. Perry, 85 NEB. L. REV. 830 (2007) (exploring Marks doctrine generally and analyzing its application to Van Orden v. Perry, 545 U.S. 677 (2005)).

(31.) Additionally, the author of this Note hopes to educate the reader about interpreting Supreme Court plurality decisions with the help of the Marks doctrine. See generally Stearns, supra note 27 (arguing law schools should include Marks in constitutional law curricula). While preparing to write this Note, the author spoke to practicing attorneys, law professors, and law students about the Marks doctrine. Only two people--both law professors--had even heard of the Marks doctrine; hence this author's desire to raise awareness of the Marks doctrine within the legal community.

(32.) See infra Part II.A (discussing factors contributing to need for interpretive rule for Supreme Court plurality decisions).

(33.) See infra Part II.B (recounting Supreme Court's decision in Marks).

(34.) See infra Part II.C (comparing conventional and social choice views of Marks).

(35.) See infra Part II.C.1 (describing conventional view of Marks).

(36.) See infra Part II.C.2 (explaining social choice approach to Marks).

(37.) 126 S. Ct. 2208 (2006); see infra Part III (analyzing competing approaches in light of Rapanos).

(38.) See infra Part III.C (analyzing conventional and social choice views of Marks and concluding conventional view more normatively justifiable).

(39.) See infra Part III.D (suggesting two-step interpretive approach).

(40.) See David Post & Steven Salop, Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels, 80 GEO. L.J. 743, 759 (1992).

(41.) See Maltz, supra note 14, at 1406.

(42.) See supra note 5 and accompanying text.

(43.) See Davis & Reynolds, supra note 3, at 71-75 (describing several methods lower courts have employed when interpreting plurality decisions); Hochschild, supra note 3, at 278-83 (noting various interpretive approaches even after Marks); Novak, supra note 3, at 758, 767-78 (analyzing interpretive approaches other than narrowest-grounds doctrine); Thurmon, supra note 3, at 419-46 (examining several interpretive approaches including some employed after Marks); Whaley, supra note 3, at 375-76 (observing various approaches to interpreting one plurality decision); cf. Kimura, supra note 3, at 1600-04 (describing several interpretive approaches suggested by commentators but not necessarily used by courts). See generally A Study in Stare Decisis, supra note 3 (exploring several approaches to interpreting plurality decisions).

(44.) AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 216 (2005).

(45.) Laura Krugman Ray, America Meets the Justices: Explaining the Supreme Court to the General Reader, 72 TENN. L. REV. 573, 578 & n.25 (2005).

(46.) Caminker, supra note 23, at 15 & n.54; Richard L. Revesz & Pamela S. Karlan, Nonmajority Rules and the Supreme Court, 136 U. PA. L. REV. 1067, 1068 (1988); Kimura, supra note 3, at 1596-98. In contrast, the Court only requires four votes to grant certiorari, and only three votes to postpone a decision on a petition for certiorari or a jurisdictional statement, pending the outcome of a case the Court has already taken. Revesz & Karlan, supra, at 1068.

(47.) See Saul Levmore, Ruling Majorities and Reasoning Pluralities, 3 THEORETICAL INQUIRIES L. 87, 9596 (2002). The Justices do, of course, vote on the rationale by writing their own opinions or signing on to the opinions of others, but this process takes place separately from the ultimate vote on the judgment. See Smith v. United States, 30 U.S. (5 Pet.) 292, 303 (1831) (explaining vote on judgment separate from vote on rationale); see also Jonathan Remy Nash, A Context-Sensitive Voting Protocol Paradigm for Multimember Courts, 56 STAN. L. REV. 75, 85-86 (2003) (explaining difference between "voting practice" and "voting protocol"). At least one state court follows a different practice, whereby the court will not upset a judgment unless a majority agrees on the rationale used to reach the outcome. See State v. Gustafson, 359 N.W.2d 920, 921-23 (Wis. 1985) (citing Frame v. Plumb (In re Will of McNaughton), 118 N.W. 997 (Wis. 1909)) (refusing to reverse without majority consensus for rationale and criticizing Supreme Court's practice).

(48.) See Kassel v. Consol. Freightways Corp., 450 U.S. 662, 664-87 (1981) (plurality and concurring opinions) (holding Iowa's ban on sixty-five-foot double trailers unconstitutional violation of Commerce Clause). Kassel is one example of a case in which the plurality and concurring opinions reached the same judgment by resolving two dispositive issues in precisely opposite ways. See id.; see also Stearns, supra note 27, at 335-38 (explaining opinions in Kassel). One issue in Kassel involved the appropriate standard of review, while the other dealt with the evidence a court could consider when reviewing the constitutionality of a state statute. Stearns, supra note 27, at 336 (articulating dispositive issues in Kassel). The Kassel plurality applied a somewhat stringent balancing test, but considered evidence offered for the first time at trial. Kassel, 450 U.S. at 678-79 (plurality opinion) (concluding Iowa statute failed balancing test based upon evidence presented at trial); Stearns, supra note 27, at 336 (evaluating plurality opinion in Kassel). Justice Brennan's concurrence applied the less stringent rational-basis test, but considered only the evidence that was before the state legislature when it enacted the statute. Kassel, 450 U.S. at 680-81, 686-87 (Brennan, J., concurring) (arguing Iowa legislature had no rational basis for enacting statute given evidence before it); Stearns, supra note 27, at 336 (explaining Justice Brennan's concurrence in Kassel). Another reason that outcome voting leads to plurality decisions may be that the Justices are free to decline to reach all of the issues presented, which increases the likelihood that multiple rationales will support the same judgment. See Post & Salop, supra note 40, at 759 (contending outcome voting produces more plurality decisions because judges can decline to reach all issues).

(49.) Cf. Nash, supra note 47, at 95-102 (showing outcome voting leads to "guidance problems" in context of "paradoxical" cases).

(50.) See AMAR, supra note 44, at 207-45 (contrasting Supreme Court's modest beginning with its powerful modern role).

(51.) AMAR, supra note 44, at 205 (crediting Chief Justice Marshall with beginning to increase Supreme Court's stature vis-a-vis other branches).

(52.) See Ruth Bader Ginsburg, Remarks on Writing Separately, 65 WASH. L. REV. 133, 138 (1990) (describing Chief Justice Marshall's effect on Court's practice and prestige); Hochschild, supra note 3, at 26371 (comparing Court's opinion-writing practices under Chief Justice Jay and Chief Justice Marshall); Kevin M. Stack, Note, The Practice of Dissent in the Supreme Court, 105 YALE L.J. 2235, 2238-39 (1996) (explaining Chief Justice Marshall introduced an "institutional approach" to the Court); Whaley, supra note 3, at 370 (observing Chief Justice Marshall "put an immediate end to" seriatim opinions). The term "seriatim opinions" refers to "[a] series of opinions written individually by each judge on the bench, as opposed to a single opinion speaking for the court as a whole." BLACK'S LAW DICTIONARY 1125 (8th ed. 2004). A single opinion of the Court is more powerful than a group of seriatim opinions because a single opinion gives "the Court an institutional voice ... over and above that of its individual members." Stack, supra, at 2239.

(53.) See, e.g., McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 317 (1819) (holding states have no power to burden operation of constitutional federal statutes); Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304, 359 (1816) (establishing Supreme Court appellate review of state court decisions involving federal laws in civil cases); Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177-80 (1803) (establishing judicial review of congressional enactments by invalidating section 13 of Judiciary Act of 1789). But see AMAR, supra note 44, at 223, 229-33 (arguing Marbury Court less brazen than conventionally understood).

(54.) See AMAR, supra note 44, at 216-18 (highlighting several other factors that explain modern Court's power and influence).

(55.) AMAR, supra note 44, at 217 (noting Supreme Court majority opinions "widely viewed as the last word on the Constitution's meaning"). In fact, many commentators now view the Court as a lawmaking institution, rather than a law-interpreting institution. See, e.g., Arthur D. Hellman, Error Correction, Lawmaking, and the Supreme Court's Exercise of Discretionary Review, 44 U. PITT. L. REV. 795, 795-97 (1983) (explaining Court's lawmaking function); Maltz, supra note 14, at 1401-14 (emphasizing Court's unique lawmaking function); Frederick Schauer, Refining the Lawmaking Function of the Supreme Court, 17 U. MICH. J.L. REFORM 1, 1-4 (1983) (asserting denial of Court's lawmaking function "conclusive evidence of professional incompetence"). Additionally, courts have begun to erode the distinction between holding and dicta in Supreme Court opinions by taking a broader view of what constitutes the Court's holding, thereby treating larger swaths of the Court's written opinions as "law." Charles A. Sullivan, On Vacation, 43 HOUS. L. REV. 1143, 1152-53 (2006) (observing Supreme Court and federal circuits "moved away from traditional view" of holding and dicta).

(56.) See Plurality Decisions, supra note 3, at 1128 (arguing Court "abdicates its [institutional] responsibility" when it renders plurality decisions).

(57.) See A Study in Stare Decisis, supra note 3, at 100 (indicating lack of clarity regarding precedential value of plurality decisions); see also supra notes 12-15 and accompanying text (explaining problems plurality decisions create).

(58.) See A Study in Stare Decisis, supra note 3, at 99-101 (explaining author's goal of discerning general rule for interpreting plurality decisions). This piece, published twenty-one years before Marks was decided, revealed the need for a Supreme Court rule for interpreting plurality decisions. See generally id. (noting disparity among lower courts' treatment of Supreme Court plurality decisions).

(59.) See supra note 5 and accompanying text.

(60.) A Study in Stare Decisis, supra note 3, at 99 n.4 (collecting plurality decisions).

(61.) A Study in Stare Decisis, supra note 3, at 99.

(62.) A Study in Stare Decisis, supra note 3, at 100.

(63.) Novak, supra note 3, at 756 n.2; see also Plurality Decisions, supra note 3, at 1127 n.1 (comparing quantity of plurality decisions rendered by Warren and Burger Courts).

(64.) See Thurmon, supra note 3, at 419-21 (explaining Marks Court's purpose for creating rule for interpreting plurality decisions).

(65.) Hochschild, supra note 3, at 278; A Study in Stare Decisis, supra note 3, at 100 & n.10; Thurmon, supra note 3, at 420 & n.3.

(66.) Hochschild, supra note 3, at 278; A Study in Stare Decisis, supra note 3, at 100 & n.10; Thurmon, supra note 3, at 420 & n.3.

(67.) Thurmon, supra note 3, at 420, 448-50 (describing interpretive methods lower courts used when applying Supreme Court plurality decisions).

(68.) See Thurmon, supra note 3, at 422-27 (explaining distinction between ratio decidendi and obiter dictum). The terms "ratio decidendi" and "obiter dictum" are difficult to define. See generally Michael Abramowicz & Maxwell Stearns, Defining Dicta, 57 STAN. L. REV. 953 (2005) (analyzing extensively difference between ratio decidendi and obiter dictum). Professors Abramowicz and Stearns offer helpful definitions of both terms, which they refer to as "holding" and "dicta" respectively. Id. at 1065. Abramowicz and Stearns write: "A holding consists of those propositions along the chosen decisional path or paths of reasoning that (1) are actually decided, (2) are based upon the facts of the case, and (3) lead to the judgment. If not a holding, a proposition stated in a case counts as dicta." Id.

(69.) See Davis & Reynolds, supra note 3, at 71 (noting plurality decisions lack single ratio decidendi).

(70.) See Novak, supra note 3, at 774-78 (observing lower courts following one opinion as authoritative); Thurmon, supra note 3, at 448-50 (indicating most lower courts followed plurality opinions immediately prior to Marks). See generally A Study in Stare Decisis, supra note 3 (collecting cases and analyzing lower court treatment of Supreme Court plurality decisions).

(71.) See Novak, supra note 3, at 769-74 (observing some lower courts followed traditional approach or "'result' stare decisis" prior to Marks); Thurmon, supra note 3, at 448-50 (noting traditional approach one among several that lower courts used). See generally A Study in Stare Decisis, supra note 3 (collecting cases and analyzing lower court treatment of Supreme Court plurality decisions).

(72.) See Novak, supra note 3, at 774-78 (observing lower courts following one opinion as authoritative). See generally A Study in Stare Decisis, supra note 3 (collecting cases and analyzing lower court treatment of Supreme Court plurality decisions).

(73.) See Davis & Reynolds, supra note 3, at 72 & n.66 (observing some lower courts search for "highest common denominator" among concurring opinions); Novak, supra note 3, at 767-69 (explaining interpretive approaches to "dual majority" cases); Thurmon, supra note 3, at 449-50 (analyzing interpretive approaches to "narrow minority" cases). See generally A Study in Stare Decisis, supra note 3 (collecting cases and analyzing lower court treatment of Supreme Court plurality decisions). Lower courts did not routinely look for the narrowest-grounds opinions until the Supreme Court endorsed this approach in Marks. Thurmon, supra note 3, at 450.

(74.) See Thurmon, supra note 3, at 420 (explaining Marks Court's purpose for creating rule for interpreting plurality decisions).

(75.) See Marks v. United States, 430 U.S. 188, 188-91 (1977) (describing issues presented on appeal); see also BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 231-46 (1979) (chronicling some cases in which Court struggled with definition of "obscenity"). "Obscene" materials are not protected under the First Amendment to the Constitution. See Miller v. California, 413 U.S. 15, 23 (1973).

(76.) 430 U.S. at 189.

(77.) 383 U.S. 413 (1966). Memoirs was a plurality decision. See id.

(78.) 413 U.S. 15 (1973); see also Marks 430 U.S. at 189-90 (providing factual background of appeal). The Memoirs test was based on the standards announced in Roth v. United States, 354 U.S. 476 (1957). The Roth test was as follows: "[W]hether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest." Id. at 489. Memoirs modified this test by providing that "three elements must coalesce" before any material is deemed "obscene." Memoirs, 383 U.S. at 418 (plurality opinion). The plurality stated:
   [I]t must be established that (a) the dominant theme of the
   material taken as a whole appeals to a prurient interest in sex;
   (b) the material is patently offensive because it affronts
   contemporary community standards relating to the description or
   representation of sexual matters; and (c) the material is utterly
   without redeeming social value.


Id. Memoirs made obscenity prosecutions more difficult for the government because it added parts (b) and (c) to the Roth test. Stearns, supra note 27, at 324. Finally, in Miller the Court retooled the "obscenity" definition by providing the following guidelines:
   (a) [W]hether "the average person, applying contemporary community
   standards" would find that the work, taken as a whole, appeals to
   the prurient interest; (b) whether the work depicts or describes,
   in a patently offensive way, sexual conduct specifically defined
   by the applicable state law; and (c) whether the work, taken as a
   whole, lacks serious literary, artistic, political, or scientific
   value.


413 U.S. at 24 (citations omitted) (quoting Roth, 354 U.S. at 489). The Miller Court specifically disavowed prong (c) of the Memoirs test. Id. at 24-25. This made obscenity prosecutions easier for the government because prong (c) under Miller "cast[] a significantly wider net" than prong (c) under Memoirs. Marks, 430 U.S. at 191.

(79.) Marks, 430 U.S. at 190-91.

(80.) Id. One petitioner was convicted of conspiracy only, while the other four were convicted of conspiracy and several substantive counts. Id. at 191 n.5.

(81.) See United States v. Marks, 520 F.2d 913 (6th Cir. 1975) (upholding convictions), rev'd, 430 U.S. 188 (1977).

(82.) Id. at 919-20.

(83.) See Marks v. United States, 430 U.S. 188, 190-91 (1977) (noting "petitioners charted their course of conduct" according to Memoirs).

(84.) See id. The petitioners' argument was analogous to an ex post facto challenge to the retroactive application of a statute. Id. Although the Constitution's Ex Post Facto Clause "does not of its own force apply to the judicial branch," the Supreme Court has held that the Due Process Clause of the Fifth Amendment includes the right to fair notice, which is the principle underlying the Ex Post Facto Clause. Id. at 191-92. Therefore, "an unforeseeable judicial enlargement of a criminal statute, applied retroactively, operates precisely like an ex post facto law," and amounts to a violation of the Due Process Clause of the Fifth Amendment. Id. at 192 (internal quotation marks omitted) (quoting Bouie v. City of Columbia, 378 U.S. 347, 353 (1964)).

(85.) United States v. Marks, 520 F.2d at 921, 922.

(86.) 354 U.S. 476 (1957); see United States v. Marks, 520 F.2d at 915-22; see also infra notes 88-90 and accompanying text (explaining how Sixth Circuit's opinion discounted or disregarded at least prong (c) of Memoirs test).

(87.) Marks, 430 U.S. at 188-89.

(88.) Id. at 192. The Sixth Circuit's opinion did not clearly state that Memoirs never became the law by virtue of its being a plurality decision. See United States v. Marks, 520 F.2d 913, 915-22 (6th Cir. 1975), rev'd, 430 U.S. 188 (1977). The opinion does seem to suggest, however, that at least part (c) of the Memoirs "obscenity" test "had [no] meaning at all" because it "had never been approved by a plurality of more than three Justices at any one time." Id. at 919-20.

(89.) Marks v. United States, 430 U.S. 188, 192-93 (1977).

(90.) Id. at 193; see also supra note 78 (articulating standards in Roth, Memoirs, and Miller).

(91.) See Marks, 430 U.S. at 193-97 (reversing court of appeals and holding plurality decisions binding precedent for narrowest rationale).

(92.) Id. at 193; Kimura, supra note 3, at 1603 (indicating Supreme Court has only recognized narrowestgrounds doctrine as interpretative rule for plurality decisions).

(93.) Marks, 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (opinion of Stewart, Powell & Stevens, JJ.)). The lead opinion in Gregg appears to be the first time any members of the Court acknowledged utilizing the narrowest-grounds approach. Novak, supra note 3, at 761. The Gregg Court was interpreting its prior plurality decision in Furman v. Georgia, 408 U.S. 238 (1972). See Gregg, 428 U.S. at 168-69 (opinion of Stewart, Powell & Stevens, JJ.); Novak, supra note 3, at 761. In doing so, the lead opinion in Gregg viewed the Furman Court's holding as the "position taken by those [Justices] who concurred in the judgments on the narrowest grounds--Mr. Justice Stewart and Mr. Justice White." Gregg, 428 U.S. at 169 n.15 (opinion of Stewart, Powell & Stevens, JJ.). One explanation for this approach is that Justice Stewart's and Justice White's opinions "were more restricted in scope and more closely tailored to the precise facts in Furman" than the other more general and widely applicable concurring opinions. Novak, supra note 3, at 761. Moreover, a majority of concurring Justices in Furman implicitly or explicitly supported the position that Justices Stewart and White adopted. See King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (observing Justices Brennan, Douglas, and Marshall implicitly supported Justices Stewart and White's position); see also infra text accompanying notes 122-136 (examining King court's analysis of Marks). Ironically, Gregg was itself a plurality decision, so only three Justices expressly endorsed the narrowest-grounds approach in that case. See Gregg, 428 U.S. at 158-207 (opinion of Stewart, Powell & Stevens, JJ.); id. at 207-26 (White, J., concurring); id. at 226-27 (Burger, C.J. & Rehnquist, J., concurring); id. at 227 (Blackmun, J., concurring); id. at 227-31 (Brennan, J., dissenting); id. at 231-41 (Marshall, J., dissenting). In Marks, however, all nine Justices either explicitly or implicitly endorsed the narrowest-grounds doctrine. See Marks, 430 U.S. at 188-97 (majority opinion); id. at 197-98 (Brennan, J., concurring in part and dissenting in part); id. at 198 (Stevens, J., concurring in part and dissenting in part). Justice Powell wrote the opinion of the Court, which Chief Justice Burger, and Justices Blackmun, Rehnquist, and White joined. Id. at 188 (majority opinion). This group of five maintained that the court of appeals' judgment should be reversed and the case remanded for a new trial. Id. at 197. Justices Brennan, Marshall, Stevens, and Stewart were of the view that the court of appeals' judgment should be reversed but the case should not be remanded for a new trial. Id. at 197-98 (Brennan, J., concurring in part and dissenting in part); id. at 198 (Stevens, J., concurring in part and dissenting in part). This group of four endorsed the opinion of the Court except insofar as it remanded the case for a new trial. Id. at 197-98 (Brennan, J., concurring in part and dissenting in part); id. at 198 (Stevens, J., concurring in part and dissenting in part).

(94.) See Marks, 430 U.S. at 193-94 (applying narrowest-grounds rule to Memoirs); Memoirs v. Massachusetts, 383 U.S. 413, 413-41 (1966) (concurring opinions); Stearns, supra note 27, at 326. Memoirs also included three dissenting opinions authored by Justices Clark, Harlan, and White. Memoirs, 383 U.S. at 441-62 (dissenting opinions). Justice Clark adhered to the Roth standard for obscenity. Id. at 441-43 (Clark, J., dissenting). Justice White also applied the Roth obscenity standard. Id. at 460-62 (White, J., dissenting). Finally, Justice Harlan endorsed a rational-basis test. Id. at 458 (Harlan, J., dissenting).

(95.) See Memoirs, 383 U.S. at 413-41 (concurring opinions); see also Thurmon, supra note 3, at 430 (describing Court's holding in Memoirs).

(96.) See Memoirs, 383 U.S. at 421 (Black, J., concurring); id. at 424-41 (Douglas, J., concurring); see also Marks v. United States, 430 U.S. 188, 193 (1977) (indicating Justices Black and Douglas's "well-known position"); WOODWARD & ARMSTRONG, supra note 75, at 152, 232 (pointing out Justices Black's and Douglas's absolutist First Amendment views); Thurmon, supra note 3, at 432 (acknowledging Justices Black's and Douglas's absolutist First Amendment stances).

(97.) See Memoirs, 383 U.S. at 421 (Stewart, J., concurring) (citing Ginzburg v. United States, 383 U.S. 463, 497-501 (1966) (Stewart, J., dissenting) and Mishkin v. New York, 383 U.S. 502, 518 (1966) (Stewart, J., dissenting)); see also Stearns, supra note 27, at 326 (indicating Justice Stewart's position); Thurmon, supra note 3, at 431 (articulating Justice Stewart's view).

(98.) Memoirs, 383 U.S. at 418 (plurality opinion).

(99.) Id.

(100.) Marks, 430 U.S. at 193-94. Justice Powell also noted that every federal court of appeals that considered the question--except the Sixth Circuit in Marks--had treated the Memoirs plurality as controlling. Id. at 194.

(101.) Id. at 194.

(102.) Marks v. United States, 430 U.S. 188, 194 (1977).

(103.) Id. (quoting Miller v. California, 413 U.S. 15, 24 (1973)).

(104.) Memoirs v. Massachusetts, 383 U.S. 413, 418 (1966) (plurality opinion).

(105.) Marks, 430 U.S. at 197.

(106.) Id. at 195.

(107.) Id. at 196.

(108.) See Marks v. United States, 430 U.S. 188, 193 (1977). Although the Marks rule applies only to the interpretation of divided United States Supreme Court decisions, several state courts have borrowed the Marks doctrine to aid in the interpretation of split state court decisions. See, e.g., Cote-Whitacre v. Dep't of Pub. Health, No. 04-2656, 2006 Mass. Super. LEXIS 670, at *8-10 (Mass. Super. Ct. Sept. 29, 2006) (using Marks doctrine to interpret split decision of Supreme Judicial Court of Massachusetts); Morgan v. City of Ruleville, 627 So. 2d 275, 278 (Miss. 1993) (employing Marks doctrine to discern holding in fragmented decision of Supreme Court of Mississippi); Davidson v. Hensen, 954 P.2d 1327, 1335 (Wash. 1998) (applying Marks doctrine to divided decision of Supreme Court of Washington).

(109.) See Marks, 430 U.S. at 188-97 (providing no reasoning for narrowest-grounds rule).

(110.) See Novak, supra note 3, at 761-62 (observing Court did not explain or justify using narrowest-grounds doctrine in Gregg or Marks); Rafael A. Seminario, Comment, The Uncertainty and Debilitation of the Marks Fractured Opinion Analysis--The U.S. Supreme Court Misses an Opportunity: Grutter v. Bollinger, 2004 UTAH L. REV. 739, 759-62 (highlighting confusion in lower courts due to Supreme Court's failure to clarify Marks doctrine); Thurmon, supra note 3, at 431-32 (indicating lower courts have attempted to explain Marks doctrine with little guidance from Supreme Court).

(111.) See, e.g., King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (holding Marks works only when "one opinion is a logical subset of ... broader opinions"); Lewis A. Kornhauser & Lawrence G. Sager, The One and the Many: Adjudication in Collegial Courts, 81 CAL. L. REV. 1, 45-48 (1993) (arguing Marks doctrine only works when concurring rationales "fit[] within each other like Russian dolls"); Thurmon, supra note 3, at 428-42 (discussing and rejecting two potential justifications for Marks doctrine).

(112.) United States v. Martino, 664 F.2d 860, 872-73 (2d Cir. 1981); see also Tyson Snow, Note, Adding Marks to the Mix of an Already Muddled Decision Regarding Public Forums and Freedom of Speech on the Internet, 19 BYU J. PUB. L. 299, 304 (2004) (quoting Martino to define "narrowest grounds").

(113.) Novak, supra note 3, at 764; see also Martino, 664 F.2d at 873 (adopting Novak's definition); Snow, supra note 112, at 304 (quoting Martino to define "narrowest grounds"). This means that if the judgment upholds a law against constitutional attack, the narrowest-grounds opinion is the one that would uphold the fewest other laws. Kornhauser & Sager, supra note 111, at 47; Stearns, supra note 27, at 326-27 n.23. Conversely, if the judgment strikes down a law on constitutional grounds, the narrowest-grounds opinion is the one that would strike down the fewest other laws. Kornhauser & Sager, supra note 111, at 47; Stearns, supra note 27, at 326-27.

(114.) See King, 950 F.2d at 781 (arguing narrowest-grounds opinion must represent "common denominator" with implicit approval of at least five concurring Justices); Caminker, supra note 23, at 33 n.120 (maintaining Marks applicable only if one concurrence has implicit assent of at least five Justices); Hochschild, supra note 3, at 280 (arguing "majority agreement[]" required for Marks doctrine to function properly); Kimura, supra note 3, at 1603-04 (explaining and criticizing Marks doctrine's demand for implicit consensus); Seminario, supra note 110, at 761 (defining "narrowest grounds" as "common denominator"); Snow, supra note 112, at 305-06 (explaining most courts and commentators require some common reasoning shared by "narrowest" and other concurrences); Thurmon, supra 3, at 429-35 (criticizing implicit consensus justification for Marks doctrine).

(115.) King, 950 F.2d at 781.

(116.) Kornhauser & Sager, supra note 111, at 45-48; see also Melissa M. Berry, Seeking Clarity in the Federal Habeas Fog: Determining What Constitutes "Clearly Established" Law Under the Antiterrorism and Effective Death Penalty Act, 54 CATH. U. L. REV. 747, 815 & nn.473-74 (2005) (stating Marks can only be applied when one concurrence logically fits within another broader concurrence); Novak, supra note 3, at 767 (arguing Marks doctrine applies only when concurring opinions occupy "broader-narrower" relationship); A Study in Stare Decisis, supra note 3, at 140 (discussing "narrow minority" cases in which one concurrence analytically "telescoped" within another).

(117.) See United States v. Johnson, 467 F.3d 56, 65-66 (1st Cir. 2006) (collecting Supreme Court cases in which Justices have analyzed methods of interpreting plurality decisions), cert. denied, 76 U.S.L.W. 3186 (U.S. Oct. 9, 2007) (No. 07-9).

(118.) 467 F.3d 56 (1st Cir. 2006), cert. denied, 76 U.S.L.W. 3186 (U.S. Oct. 9, 2007) (No. 07-9).

(119.) Id. at 65-66.

(120.) Caminker, supra note 23, at 65.

(121.) Cf. King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc) (concluding narrowest-grounds opinion under Marks "must embody a position implicitly approved by at least five Justices who support the judgment").

(122.) See King, 950 F.2d at 780-85 (holding Marks works only when narrowest opinion "implicitly approved by at least five Justices who support the judgment").

(123.) 950 F.2d 771 (D.C. Cir. 1991) (en banc).

(124.) Id. at 781-82.

(125.) See supra notes 95-99 and accompanying text (describing opinions in Memoirs).

(126.) Memoirs v. Massachusetts, 383 U.S. 413, 421 (1966) (Black, J., concurring); id. at 433 (Douglas, J., concurring); King, 950 F.2d at 781; see also supra note 96 and accompanying text (describing view of Justices Black and Douglas).

(127.) Memoirs, 383 U.S. at 421 (Stewart, J., concurring); King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc); see also supra text accompanying note 97 (explaining Justice Stewart's position).

(128.) Memoirs, 383 U.S. at 419 (plurality opinion); King, 950 F.2d at 781; see also supra text accompanying notes 98-99 (outlining plurality opinion).

(129.) King, 950 F.2d at 781 & n.6.

(130.) Id. at 781.

(131.) Id. at 781 n.6.

(132.) Id. at 781-82. The King court also analyzed the application of the narrowest-grounds rule in Gregg, and concluded that its application to Furman was "unproblematic" because it selected an opinion that had the implicit support of a majority of the Court. Id. at 781.

(133.) King v. Palmer, 950 F.2d 771, 781-82 (D.C. Cir. 1991) (en banc).

(134.) Id. at 782.

(135.) See id. at 781 ("[T]he narrowest opinion ... must embody a position implicitly approved by at least five Justices who support the judgment."); see also Caminker, supra note 23, at 15 ("[A] decision establishes a legal rule with precedential status only if a majority of judges invoke the same dispositional rule to justify the same disposition...."); Kimura, supra note 3, at 1596-98 (discussing fundamental jurisprudential principle of majoritarianism); A Study in Stare Decisis, supra note 3, at 99 ("One of the basic postulates of the American case-law system is that the decision of a majority determines the result and establishes a precedent for use in subsequent adjudications.").

(136.) See King, 950 F.2d at 781 ("[T]he narrowest opinion must ... embody a position implicitly approved by at least five Justices who support the judgment.").

(137.) See generally MAXWELL L. STEARNS, CONSTITUTIONAL PROCESS: A SOCIAL CHOICE ANALYSIS OF SUPREME COURT DECISION MAKING (2000) [hereinafter STEARNS, CONSTITUTIONAL PROCESS] (analyzing Supreme Court's decisional rules using social choice theory); Stearns, supra note 2 (applying social choice theory to vote-switching cases and discussing Marks doctrine); Stearns, supra note 27 (explaining in lay terms how social choice theory applies to Marks); Maxwell L. Stearns, The Misguided Renaissance of Social Choice, 103 YALE L.J. 1219 (1994) [hereinafter Stearns, The Misguided Renaissance] (comparing Supreme Court and congressional voting procedures and rules using social choice theory).

(138.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105.

(139.) See, e.g., STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 130-33 (applying narrowestgrounds doctrine to Bakke); Abramowicz & Stearns, supra note 68, at 964 n.38 (same); Stearns, supra note 27, at 329-31 (same).

(140.) See Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2124 (1990) (defining social choice theory). Whether adjudication involves preference or judgment aggregation depends upon one's theoretical view of adjudication. See generally Lewis A. Kornhauser & Lawrence G. Sager, Unpacking the Court, 96 YALE L.J. 82, 89, 92-97 (1986) (describing theories of adjudication).

(141.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 44-45; Stearns, supra note 2, at 105; Stearns, The Misguided Renaissance, supra note 137, at 1253-54.

(142.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(143.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(144.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(145.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(146.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(147.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(148.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(149.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(150.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(151.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(152.) See Jeffrey C. O'Neill, Everything That Can Be Counted Does Not Necessarily Count: The Right to Vote and the Choice of a Voting System, 2006 MICH. ST. L. REV. 327, 337 (2006) ("Condorcet voting is widely accepted as the best generalization of majority rule to more than two candidates.")

(153.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45-46 (implying plurality voting systems undermine notion of majority rule); see also supra note 152 (observing many social choice scholars disfavor plurality voting systems and prefer Condorcet-producing voting regimes). But see Saul Levmore, More Than Mere Majorities, 2000 UTAH L. REV. 759, 770-71 (2000) (arguing Condorcet Jury Theorem suggests plurality opinion should determine precedential value in split decisions).

(154.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 46 (quoting WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 100 (1982)).

(155.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 46 (quoting WILLIAM H. RIKER, LIBERALISM AGAINST POPULISM: A CONFRONTATION BETWEEN THE THEORY OF DEMOCRACY AND THE THEORY OF SOCIAL CHOICE 100 (1982)).

(156.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 46.

(157.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 46.

(158.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 46; see also Stearns, The Misguided Renaissance, supra note 137, at 1255-56 (arguing failure to account for intensity of preferences not utility maximizing).

(159.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 46.

(160.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 44-45.

(161.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(162.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(163.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(164.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45.

(165.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45. The absence of a Condorcet winner gives rise to a phenomenon that social choice theorists call "cycling," in which a group employing a Condorcet-producing rule is unable to select a stable winner. See id. at 46-47.

(166.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45 (explaining possibility of intransitivity shown by Condorcet paradox lies at core of social choice theory).

(167.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 133; see also Tracey E. George & Robert J. Pushaw, Jr., How is Constitutional Law Made?, 100 MICH. L. REV. 1265, 1270 (2002) (book review) (describing Stearns's analysis of Marks as "primarily normative" and "not explanatory").

(168.) See supra notes 94-100 and accompanying text (describing Justice Powell's analysis of Memoirs concurrences).

(169.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128-29 (performing direct pairwise comparison of opinions in Memoirs).

(170.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128 & tbl.3.5. Stearns groups Justices Douglas and Black together because they both wrote that the government could not regulate speech at all. See supra note 96 and accompanying text (explaining position of First Amendment absolutists).

(171.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128 & tbl.3.5. Stearns groups the three dissenters together for ease of presentation because none of their positions is eligible for holding status under Marks, and their ordinal rankings of the opinions in Memoirs would likely be the same. See id. at 127-28.

(172.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128. Stearns combines the A and B opinions because this creates three groups, any two of which contain enough votes to form a majority. Id.

(173.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128.

(174.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128-29.

(175.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 129.

(176.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 124-33 (demonstrating narrowest-grounds opinions in three plurality decisions also Condorcet-winning opinions); Stearns, supra note 2, at 110-21 (demonstrating narrowest-grounds opinions in two plurality decisions also Condorcet-winning opinions); Stearns, supra note 27, at 327-35 (demonstrating narrowest-grounds opinions in four plurality decisions also Condorcet-winning opinions). Stearns does acknowledge that the Marks doctrine increases the probability, but does not guarantee, that the narrowest-grounds opinion will also be the Condorcet winner. See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 98, 154 (discussing ability of Marks doctrine to identify Condorcet winner).

(177.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105; see also Michael Abramowicz & Maxwell L. Stearns, Beyond Counting Votes: The Political Economy of Bush v. Gore, 54 VAND. L. REV. 1849, 1931 n.309 (2001) (stating narrowest-grounds doctrine ensures that if Condorcet winner exists, that winner will constitute Court's holding).

(178.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 130-33 (applying Marks to Bakke); Stearns, supra note 27, at 330-31 (same); see also infra notes 181-186 and accompanying text (describing Stearns's three-paradigm taxonomy of Supreme Court plurality decisions).

(179.) See supra note 116 and accompanying text (observing most courts and commentators deem Marks applicable in very limited circumstances).

(180.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 99, 105 (explaining Marks functions in all cases except those involving "multidimensional issue continuum" and "asymmetrical preferences"); Levmore, supra note 47, at 103 (labeling Marks doctrine "incoherent" when no Condorcet winner exists).

(181.) Stearns, supra note 2, at 110-23; see also STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 71 passim (explaining taxonomy and applying it to plurality decisions).

(182.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 124-30; Stearns, supra note 2, at 111; see, e.g., Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992); Furman v. Georgia, 408 U.S. 238 (1972); Memoirs v. Massachusetts, 383 U.S. 413 (1966).

(183.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 130-33; Stearns, supra note 2, at 111; see Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).

(184.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 99-106; Stearns, supra note 2, at 111; see, e.g., Miller v. Albright, 523 U.S. 420 (1998); Kassel v. Consol. Freightways Corp., 450 U.S. 662 (1981); Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949).

(185.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105 (maintaining Marks functions well in "vast majority" of plurality decisions without "multidimensionality and asymmetry"); Stearns, supra note 2, at 110-28 (arguing Marks functions properly except when applied to cases with multidimensional issue spectrum and asymmetrical preferences).

(186.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105 (suggesting Marks "doctrine's assumptions break down" in cases with multidimensionality and asymmetry); Stearns, supra note 2, at 110-28 (arguing narrowest-grounds doctrine fails only in cases with multidimensional issue spectrum and asymmetrical preferences); Stearns, supra note 27, at 338 (explaining multidimensional and asymmetrical cases like Kassel provide no way of identifying Condorcet-winning opinion).

(187.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 135-36 (outlining normative justifications for Marks doctrine). But see Levmore, supra note 153, at 770-71 (using social choice theory to argue plurality opinion, not "narrowest" opinion, should bind lower courts).

(188.) See supra text accompanying notes 157-166 (explaining two defects with rules that satisfy Condorcet criterion).

(189.) See supra note 158 and accompanying text (noting one defect with Condorcet criterion-satisfying rules).

(190.) See Maltz, supra note 14, at 1395 (explaining Supreme Court opinions describe reasons for agreement or disagreement with disposition).

(191.) See supra text accompanying notes 159-166 (demonstrating Condorcet paradox).

(192.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105 (arguing Marks works in most cases); Stearns, supra note 27, at 335 (discussing "rare" plurality decisions in which Marks does not work).

(193.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 135 (stating Marks ensures holding in "maximum number" of plurality decisions).

(194.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105 (stating premises underlying Marks doctrine hold in "vast majority" of plurality decisions).

(195.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 105 (indicating Marks functions properly in "vast majority" of plurality decisions).

(196.) King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991) (en banc); see infra notes 213-214 and accompanying text (explaining concurring opinions in Rapanos not nested like "Russian dolls"). See generally Bradford C. Mank, Implementing Rapanos--Will Justice Kennedy's Significant Nexus Test Provide a Workable Standard for Lower Courts, Regulators, and Developers?, 40 IND. L. REV. 291 (2007) (exploring problems with applying Marks to Rapanos); Matthew A. Macdonald, Comment, Rapanos v. United States and Carabell v. United States Army Corps of Engineers, 31 HARV. ENVTL. L. REV. 321, 327-29 (2007) (analyzing plurality opinion and Justice Kennedy's concurrence in Rapanos); Posting of Amy Howe to SCOTUSblog, http://www.scotusblog.com/movabletype/archives/2006/06/discussion_boar_1.html (June 19, 2006, 13:30 EST) (attributing posting to Richard Lazarus and generating discussion of potential problems with applying Marks to Rapanos). In criticizing Rapanos, Professor Richard Lazarus lamented that "[e]nvironmental [l]aw now has its own Bakke." Posting of Amy Howe to SCOTUSblog, http://www.scotusblog.com/movabletype/archives/2006/06/discussion_boar_1.html (June 19, 2006, 13:30 EST) (attributing posting to Richard Lazarus).

(197.) See supra Part II.C (discussing competing visions of Marks doctrine).

(198.) Rapanos v. United States, 126 S. Ct. 2208, 2219 (2006) (plurality opinion) (framing issue).

(199.) Id. at 2235 (announcing judgment).

(200.) See id. at 2214-35; id. at 2236-52 (Kennedy, J., concurring); id. at 2252-65 (Stevens, J., dissenting).

Chief Justice Roberts signed on to Justice Scalia's plurality opinion but also filed a separate concurrence. See id. at 2214-35 (plurality opinion); id. at 2235-36 (Roberts, C.J., concurring). Justice Breyer signed on to Justice Stevens's dissent but also filed his own dissenting opinion. See id. at 2252-65 (Stevens, J., dissenting); id. at 2266 (Breyer, J., dissenting). This Note, however, will focus only on Justice Scalia's plurality opinion, Justice Kennedy's concurrence, and Justice Stevens's dissent because Chief Justice Roberts's and Justice Breyer's individual opinions do not affect the substance of the other opinions. See id. at 2214-66 (various opinions).

(201.) Id. at 2221 (plurality opinion).

(202.) Rapanos, 126 S. Ct. at 2226 (plurality opinion).

(203.) Id. at 2236 (Kennedy, J., concurring) (citing Solid Waste Agency of N. Cook County v. United States Army Corps of Eng'rs (SWANCC), 531 U.S. 159, 167, 172 (2001)). A "significant nexus" is established when the water or wetland "significantly affect[s] the chemical, physical, and biological integrity of other covered waters more readily understood as 'navigable.'" Id. at 2248.

(204.) Rapanos v. United States, 126 S. Ct. 2208, 2252-65 (2006) (Stevens, J., dissenting). Although the dissent is not eligible for holding status under Marks, it is helpful to understanding why Justice Kennedy's opinion is the Condorcet winner. See infra notes 228-235 and accompanying text (illustrating Justice Kennedy's opinion is Condorcet winner).

(205.) See S.F. Baykeeper v. Cargill Salt Div., 481 F.3d 700, 707-08 (9th Cir. 2007) (following Justice Kennedy's "controlling" opinion in Rapanos); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (per curiam) (holding Justice Kennedy concurred on narrowest grounds but noting voting anomaly); N. Cal. River Watch v. City of Healdsburg, 457 F.3d 1023, 1029 (9th Cir. 2006) (following Justice Kennedy's "significant nexus" test); United States v. Fabian, No. 2:02-CV-495, 2007 U.S. Dist. LEXIS 24254, at *27-31 (N.D. Ind. Mar. 29, 2007) (following Gerke by holding Justice Kennedy concurred on narrowest grounds but noting voting anomaly); United States v. Pozsgai, No. 88-6545, 2007 U.S. Dist. LEXIS 23450, at *4 (E.D. Pa. Mar. 8, 2007) (applying Justice Kennedy's test); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 823 (N.D. Cal. 2007) (following Healdsburg and applying Justice Kennedy's "significant nexus" test); Jonathan H. Adler, Reckoning with Rapanos: Revisiting "Waters of the United States" and the Limits of Federal Wetland Regulation, 14 MO. ENVTL. L. & POL'Y REV. 1, 11 (2006) (concluding Justice Kennedy's concurrence and "grounds of agreement" with plurality constitute Court's holding under Marks); Nina A. Mendelson, Regulatory Beneficiaries and Informal Agency Policymaking, 92 CORNELL L. REV. 397, 405 n.51 (2007) (indicating "significant nexus" standard as Court's holding); Ilya Somin, Gonzales v. Raich: Federalism as a Casualty of the War on Drugs, 15 CORNELL J.L. & PUB. POL'Y 507, 523 (2006) (concluding Justice Kennedy "almost certainly" concurred on narrowest grounds); Maxwell L. Stearns, The New Commerce Clause Doctrine in Game Theoretical Perspective, 60 VAND. L. REV. 1, 5 n.21, 53 & n.231 (2007) (concluding Justice Kennedy's opinion states the holding in Rapanos); Matthew C. Stephenson, The Strategic Substitution Effect: Textual Plausibility, Procedural Formality, and Judicial Review of Agency Statutory Interpretations, 120 HARV. L. REV. 528, 540 (2006) (referring to Justice Kennedy's "controlling" opinion in Rapanos); The Supreme Court, 2005 Term--Leading Cases, 120 HARV. L. REV. 351, 356 & n.63 (2006) (observing Justice Kennedy concurred on narrowest grounds); Garrett W. Johnson, Note, Constitutional Limits to Federal Environmental Regulation: The Commerce Clause Challenge to the Safe Drinking Water Act, 10 QUINNIPIAC HEALTH L.J. 77, 106 n.195 (2006) (noting Justice Kennedy concurred "on narrower grounds" than plurality). See generally James Murphy, Muddying the Waters of the Clean Water Act: Rapanos v. United States and the Future of America's Water Resources, 31 VT. L. REV. 355 (2007) (analyzing Rapanos and concluding lower courts should follow Justice Kennedy's concurrence). But see Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring) (intimating Marks might not apply neatly to Rapanos); id. at 2265 & n.14 (Stevens, J., dissenting) (arguing lower courts can follow whichever test sustains jurisdiction); United States v. Johnson, 467 F.3d 56, 62-66 (1st Cir. 2006) (following Justice Stevens's direction to apply either test), cert. denied, 76 U.S.L.W. 3186 (U.S. Oct. 9, 2007) (No. 07-9); United States v. Cundiff, 480 F. Supp. 2d 940, 944 (W.D. Ky. 2007) (same); Simsbury-Avon Pres. Soc'y, LLC v. Metacon Gun Club, Inc., 472 F. Supp. 2d 219, 225-30 (D. Conn. 2007) (same); United States v. Evans, No. 3:05-cr-159(S3)-J-32MMH, 2006 U.S. Dist. LEXIS 94369, at *6465 (M.D. Fla. July 14, 2006) (same); United States v. Chevron Pipe Line Co., 437 F. Supp. 2d 605, 612-13 (N.D. Tex. 2006) (grappling with concurring opinions in Rapanos and looking to Fifth Circuit precedent for guidance).

(206.) See supra note 113 and accompanying text (explaining operation of narrowest-grounds rule).

(207.) See supra note 113 (clarifying operation of narrowest-grounds rule).

(208.) See Gerke, 464 F.3d at 724-25 (reasoning Justice Kennedy's test narrower because more likely to uphold federal jurisdiction).

(209.) See Rapanos, 126 S. Ct. at 2236 (Roberts, C.J., concurring) (intimating Marks might not apply neatly to Rapanos); id. at 2265 & n.14 (Stevens, J., dissenting) (arguing lower courts can follow whichever test sustains jurisdiction).

(210.) Rapanos v. United States, 126 S. Ct. 2208, 2236 (2006) (Roberts, C.J., concurring).

(211.) Id.

(212.) Id. at 2265 & n.14 (Stevens, J., dissenting) (emphasis added).

(213.) See United States v. Gerke Excavating, Inc., 464 F.3d 723, 724-25 (2006) (per curiam) (explaining Justice Scalia's test might be satisfied when Justice Kennedy's would not).

(214.) See id. But see Adler, supra note 205, at 19 (arguing plurality's test likely not satisfied whenever

Justice Kennedy's test not met).

(215.) Rapanos, 126 S. Ct. at 2265 & n.14 (Stevens, J., dissenting); see Gerke, 464 F.3d at 725 (explaining Justice Kennedy would be outvoted eight to one).

(216.) See supra note 209 (recognizing Chief Justice Roberts's and Justice Stevens's views).

(217.) See supra text accompanying notes 122-136 (explaining conventional view of Marks doctrine).

(218.) See supra text accompanying notes 209-216 (describing Chief Justice Roberts's and Justice Stevens's views).

(219.) Cf. King v. Palmer, 950 F.2d 771, 784 (D.C. Cir. 1991) (en banc) (holding Marks inapplicable to Pennsylvania v. Del. Valley Citizens' Council for Clean Air, 483 U.S. 711 (1987)).

(220.) Cf. id. (citing Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582, 655 (1949) (Frankfurter, J., dissenting)) (noting result binding even if no majority agreement on rationale).

(221.) See supra text accompanying notes 212-216 (laying out Justice Stevens's directive). In fact, many lower courts interpreting Rapanos have followed Justice Stevens's approach. See United States v. Johnson, 467 F.3d 56, 62-66 (1st Cir. 2006) (following Justice Stevens's direction to apply either test), cert. denied, 76 U.S.L.W. 3186 (U.S. Oct. 9, 2007) (No. 07-9); United States v. Cundiff, 480 F. Supp. 2d 940, 944 (W.D. Ky. 2007) (following Justice Stevens's direction to apply either test); Simsbury-Avon Pres. Soc'y, LLC v. Metacon Gun Club, Inc., 472 F. Supp. 2d 219, 225-30 (D. Conn. 2007) (following Justice Stevens's direction to apply either test); United States v. Evans, No. 3:05-cr-159(S3)-J-32MMH, 2006 U.S. Dist. LEXIS 94369, at *64-65 (M.D. Fla. July 14, 2006) (following Justice Stevens's direction to apply either test). But see S.F. Baykeeper v. Cargill Salt Div., 481 F.3d 700, 707-08 (9th Cir. 2007) (following Justice Kennedy's "controlling" opinion in

Rapanos); United States v. Gerke Excavating, Inc., 464 F.3d 723, 724 (7th Cir. 2006) (per curiam) (holding Justice Kennedy concurred on narrowest grounds but noting voting anomaly); N. Cal. River Watch v. City of Healdsburg, 457 F.3d 1023, 1029 (9th Cir. 2006) (following Justice Kennedy's "significant nexus" test); United States v. Fabian, No. 2:02-CV-495, 2007 U.S. Dist. LEXIS 24254, at *27-31 (N.D. Ind. Mar. 29, 2007) (following Gerke by holding Justice Kennedy concurred on narrowest grounds but noting voting anomaly); United States v. Pozsgai, No. 88-6545, 2007 U.S. Dist. LEXIS 23450, at *4 (E.D. Pa. Mar. 8, 2007) (applying Justice Kennedy's test); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 823 (N.D. Cal. 2007) (following Healdsburg and applying Justice Kennedy's "significant nexus" test). See generally Murphy, supra note 205 (analyzing Rapanos and concluding lower courts should follow Justice Kennedy's concurrence).

(222.) See Rapanos v. United States, 126 S. Ct. 2208, 2265 n.14 (2006) (Stevens, J., dissenting) (concluding lower "courts should ... uphold the Corps' jurisdiction" only if "either test" is satisfied).

(223.) See Stearns, supra note 205, at 5 n.21, 53 & n.231 (concluding Justice Kennedy's opinion states the holding in Rapanos).

(224.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 135.

(225.) STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 45-46.

(226.) See STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 135 (defending Marks as Condorcetproducing rule).

(227.) See supra text accompanying notes 205-208 (demonstrating Justice Kennedy appears to have concurred on narrowest grounds).

(228.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128-29 (showing Brennan plurality Condorcet winner in Memoirs).

(229.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 127-29, 128 tbl.3.5 (casting opinions in Memoirs along unidimensional issue continuum). From broadest to narrowest, the Rapanos opinions would be arranged as follows: Justice Scalia's plurality, Justice Kennedy's concurrence, Justice Stevens's dissent. See Rapanos v. United States, 126 S. Ct. 2208, 2214-35 (2006) (plurality opinion); id. at 2236-52 (Kennedy, J., concurring); id. at 2252-65 (Stevens, J., dissenting).

(230.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128 & tbl.3.5 (assigning letters to opinions in Memoirs).

(231.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128-29 (ranking opinions in Memoirs).

(232.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128 (ranking opinions in Memoirs). Both the A (Scalia) camp and the C (Stevens) camp would most likely prefer the B (Kennedy) position's rationale to each other's because Kennedy's "significant nexus" test represents a middle ground between the Scalia and Stevens rationales. See supra text accompanying notes 198-204 (reviewing opinions in Rapanos); see also supra note 229 (casting Rapanos opinions along unidimensional issue continuum from broadest to narrowest).

(233.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 128-29 (reviewing rankings in Memoirs).

(234.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 129 (indicating Condorcet winner in Memoirs); see also supra text accompanying notes 144-151 (illustrating selection of Condorcet winner).

(235.) Cf. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 129 (concluding Marks doctrine satisfies Condorcet criterion in Memoirs).

(236.) See supra notes 180-187 and accompanying text (explaining Professor Stearns's view that Marks functions properly in "vast majority" of plurality decisions).

(237.) See supra text accompanying note 187 (outlining Professor Stearns's three-part normative justification of Marks doctrine).

(238.) See supra text accompanying note 167 (indicating Professor Stearns's classification of Marks as Condorcet-producing rule).

(239.) See supra text accompanying notes 152-156 (accounting for confidence social choice scholars place in Condorcet-producing rules).

(240.) See supra text accompanying note 187 (outlining Professor Stearns's three-part normative justification for Marks). Even Professor Stearns does not rely solely on the Condorcet criterion to justify Marks, and instead provides an intriguing justification for the Marks doctrine by arguing that it promotes "principled decision making" and "limits strategic voting" on the Court. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 135-39.

(241.) See Caminker, supra note 23, at 15 (describing "conventional model" which provides only majority's first choice establishes binding legal precedent).

(242.) See supra Part II.C.2.b (discussing social choice theory and Marks doctrine).

(243.) See supra Part II.C.2.b (discussing social choice theory and Marks doctrine). Professor Stearns does posit that Marks "ensur[es] an identifiable holding in the maximum number of fractured panel decisions," which implies that Marks serves the adjudicatory function of lower courts by supplying them with one clear holding from most plurality decisions. STEARNS, CONSTITUTIONAL PROCESS, supra note 137, at 135. Stearns does not, however, adequately explain why the certainty inherent in his approach to Marks outweighs the fact that a majority of Justices might actually oppose the Court's "holding" under his approach. See infra text accompanying notes 244-250 (arguing against selecting one opinion as "winner" when majority of Justices reject its reasoning).

(244.) See supra Part II.C.2.b (outlining normative defense of Marks using social choice theory framework).

(245.) See supra text accompanying notes 152-156 (justifying Condorcet criterion as consistent with notions of equality and majority rule).

(246.) See supra Part III.B (applying social choice view of Marks to Rapanos).

(247.) See supra text accompanying notes 213-216 (highlighting Chief Justice Roberts's and Justice Stevens's recognition of voting anomaly in Rapanos).

(248.) See King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991) (en banc) ("Marks [must not be permitted to] turn a single opinion that lacks majority support into national law.").

(249.) Id.; see also Weins, supra note 30, at 859 (recognizing "primary problem" with Marks is its ability to allow "one Justice [to] mak[e] binding law").

(250.) See supra text accompanying notes 212-216 (explaining Justice Stevens's directive to lower courts interpreting Rapanos). The principle of majoritarianism is not without its critics in some contexts. See Levmore, supra note 153, at 770-71 (arguing Condorcet Jury Theorem suggests plurality opinion should determine precedential value in split decisions). Nevertheless, the prevailing view is that majority rule should govern the interpretation of Supreme Court precedent, most likely as a result of the intuition that a rule or an outcome that a majority of the Court opposes should not become binding law throughout the United States. See, e.g., Rapanos v. United States, 126 S. Ct. 2208, 2265 & n.14 (2006) (Stevens, J., dissenting) (directing lower courts to follow outcome supported by majority of Justices); King, 950 F.2d at 782 (arguing Marks should not "turn a single opinion that lacks majority support into national law"); Caminker, supra note 23, at 15, 33 & n.120 (characterizing "[m]ultimember courts [as] majoritarian" and explaining Marks as application of majoritarianism).

(251.) See generally Marks v. United States, 430 U.S. 188 (1977). Unfortunately, one can only speculate because the Marks Court did not explain why it adopted the narrowest-grounds rule. See supra note 110 and accompanying text (observing lack of explanation in Marks for adoption of narrowest-grounds rule).

(252.) A LexisNexis search of the "U.S. Supreme Court Cases, Lawyers' Edition" database revealed that no United States Supreme Court case had ever explicitly discussed social choice theory or the Condorcet Criterion as of October 20, 2007.

(253.) See, e.g., Caminker, supra note 23, at 15 ("[A] decision establishes a legal rule with precedential status only if a majority of judges invoke the same dispositional rule to justify the same disposition...."); Kimura, supra note 3, at 1596-98 (discussing fundamental jurisprudential principle of majoritarianism); A Study in Stare Decisis, supra note 3, at 99 ("One of the basic postulates of the American case-law system is that the decision of a majority determines the result and establishes a precedent for use in subsequent adjudications.").

(254.) King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc).

(255.) Kornhauser & Sager, supra note 111, at 45-48.

(256.) See supra text accompanying notes 122-136 (explaining Marks doctrine's limited applicability).

(257.) See supra text accompanying note 134 (quoting King court's explanation of Marks doctrine's limited applicability).

(258.) See, e.g., Furman v. Georgia, 408 U.S. 238 (1972); Memoirs v. Massachusetts, 383 U.S. 413 (1966); N. Sec. Co. v. United States, 193 U.S. 197 (1904).

(259.) See, e.g., Hochschild, supra note 3, at 283-87 (calling for "development of sound jurisprudence to interpret plurality decisions"); Kimura, supra note 3, at 1610-25 (outlining "legitimacy model" as system of interpretive rules for plurality decisions); Thurmon, supra note 3, at 451-57 (suggesting "hybrid approach" for interpreting plurality decisions).

(260.) See Kimura, supra note 3, at 1610-25 (legitimacy model); Thurmon, supra note 3, at 451-57 (hybrid approach).

(261.) See Kimura, supra note 3, at 1610-25 (legitimacy model); Thurmon, supra note 3, at 451-57 (hybrid approach).

(262.) Cf. supra text accompanying notes 65-66 (discussing traditional approach to interpreting plurality decisions).

(263.) See supra Part II.C.1 (exploring conventional view of Marks doctrine).

(264.) See supra Part II.C.1 (exploring conventional view of Marks doctrine).

(265.) Cf. supra text accompanying notes 65-66 (discussing traditional approach to interpreting plurality decisions). Unlike the traditional approach, this Note endorses an examination of all of the opinions in a plurality decision to determine the result that a majority of the deciding Court would support, given their stated rationales. Cf. supra text accompanying notes 65-66 (noting traditional approach focuses on deciding Court's judgment regardless of rationale).

(266.) See Rapanos v. United States, 126 S. Ct. 2208, 2265 & n.14 (2006) (Stevens, J., dissenting) (directing lower courts to follow dispositional majority when construing Rapanos). If the dispositional majority is indeterminate, the plurality decision would have no binding precedential effect. Cf. supra text accompanying notes 65-66 (noting plurality decisions binding only in cases with very close factual similarities under traditional approach).

(267.) See Rapanos, 126 S. Ct. at 2265 & n.14 (Stevens, J., dissenting) (directing lower courts to uphold federal jurisdiction under either the plurality's or Justice Kennedy's test).

(268.) Caminker, supra note 23, at 65 (internal quotation marks omitted) (quoting David C. Bratz, Comment, Stare Decisis in Lower Courts: Predicting the Demise of Supreme Court Precedent, 60 WASH. L. REV. 87, 99 (1984)).

(269.) See Rapanos, 126 S. Ct. at 2265 & n.14 (Stevens, J., dissenting) (directing lower courts to follow dispositional majority when construing Rapanos). Although head-counting may be a coarse form of judicial reasoning, it does have its merits as a means of cobbling together majority support for various legal propositions or outcomes. See Caminker, supra note 3, at 65 (describing head-counting as "merely a method of aggregating individual Justices' votes").

(270.) King v. Palmer, 950 F.2d 771, 782 (D.C. Cir. 1991) (en banc).
Table 1

Decision      Ordinal
Makers        Rankings

Person 1      A, B, C
Person 2      B, C, A
Person 3      C, B, A

Table 2

             Winner of
Pairwise      Pairwise
Comparison   Comparison

A v. B           B
A v. C           C
B v. C           B
Condorcet        B
Winner

Table 3

Decision      Ordinal
Makers        Rankings

Person 1      A, B, C
Person 2      B, C, A
Person 3      C, A, B

Table 4

             Winner of
Pairwise      Pairwise
Comparison   Comparison

A v. B           A
A v. C           C
B v. C           B
Condorcet        ?
Winner

Table 5

                               Ordinal
Decision Makers                Rankings

Douglas/Black/Stewart (A/B)   A/B, C, D
Brennan Plurality (C)          C, ?, ?
Dissenters (D)                D, C, A/B

Table 6

                              Winner of
Pairwise                       Pairwise
Comparison                    Comparison

A/B v. C                          C
A/B v. D                          ?
C v. D                            C
Condorcet                         C
Winner

Table 7

                           Ordinal
Decision Makers            Rankings

Scalia Plurality (A)       A, B, C
Kennedy Concurrence (B)    B, ?, ?
Stevens Dissent (C)        C, B, A

Table 8

                          Winner of
Pairwise                   Pairwise
Comparison                Comparison

A v. B                        B
A v. C                        ?
B v. C                        B
Condorcet                     B
Winner
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