How Should the Courts Interpret Split Decisions?

The Supreme Court occasionally renders plurality opinions, which may involve 4-1-4 decisions or any number of other formulations of justices where no clear majority on particular issues emerges. These plurality opinions often address significant issues yet, due to the lack of a clear majority, are difficult for the lower courts, the regulated community, and practitioners to interpret and apply.

The Supreme Court provided minimal guidance on interpretation of plurality decisions in Marks v. United States, when it held: "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.'"

In United States v. Alcan, (2d Cir., 2003), that court reached a conclusion which many commentators- and courts- appear to reject:

Marks only works in instances where "one opinion can meaningfully be regarded as 'narrower' than another," King v. Palmer, (D.C.Cir.1991), that is to say, only when that narrow opinion is the common denominator representing the position approved by at least five justices. When it is not possible to discover a single standard that legitimately constitutes the narrowest ground for a decision on that issue, there is then no law of the land because no one standard commands the support of a majority of the Supreme Court.

This teleconference panel discussion will answer the question of how to interpret these split decisions.

Panelists included:

• Prof. Donald J. Kochan, Chapman University School of Law
• Mr. Gene C. Schaerr, Winston & Strawn LLP
• Prof. Louis Michael Seidman, Georgetown University Law Center
• Judge David B. Sentelle, U.S. Court of Appeals for the District of Columbia Circuit
• Mr. Dean Reuter, Director of Practice Groups, The Federalist Society