This Article explores a basic question of precedent formation: When a majority of the Supreme Court cannot agree on a rule of decision, can the Court nonetheless create a precedent? Under the Marks rule, the answer is yes: a fragmented Court decision stands for the “position taken by those members who concurred in the judgments on the narrowest grounds.” But that approach shifts costly interpretive burdens to later courts, privileges outlier views among the Justices, and discourages desirable compromises. Instead, Court precedent should form only when a single rule of decision has the express support of at least five Justices. That majority rule would promote decisional efficiency by placing the burden of precedent formation on the “cheapest precedent creators” — namely, the Justices themselves at the time of decision.
To support those conclusions, this Article presents the first systematic study of the Marks rule’s operation in appellate courts, including the Supreme Court, the federal circuit courts, and state appellate courts. Lower courts are applying Marks with rapidly increasing frequency, including to construe state court decisions. Yet most appellate citations to the Marks rule involve a relatively small number of fragmented cases. These findings allow courts and scholars to evaluate the rule’s practical operation, as well as the costs and benefits of abandoning it.
The link between decisional efficiency and precedent formation also sheds light on a number of broader issues in the law of precedent, including: whether to adhere to the results of fragmented or unexplained rulings, when Justices may legitimately compromise to form a majority, and how lower courts should discipline the Justices’ creation of precedent. But to make progress on these issues, we must first move beyond the Marks rule.
* Assistant Professor, UCLA School of Law. Many thanks to Don Ayer, Will Baude, Sam Bray, Kristen Eichensehr, Barry Friedman, Aziz Huq, Justice Brett M. Kavanaugh, Maggie Lemos, Marin Levy, Ben Nyblade, Alex Potapov, Seana Shiffrin, Asher Steinberg, Lior Strahilevitz, Maxwell Stearns, Sabine Tsuruda, Ryan Williams, the editors of the Harvard Law Review, and participants in the UCLA School of Law faculty workshop, the University of Florida faculty workshop, the University of Chicago Public Law Workshop, and a colloquium at Duke Law School. Special thanks to Brandon Amash, Spencer Brass, Sarah Burns, Alexan-dra Gianelli, Lorien Giles, Darish Huynh, Brandon Jack, Libby Jelinek, Caleb Peiffer, Taylor Pitz, Giovanni Saarman, Peter Telesca, and the UCLA Law Library staff for assistance in generating the empirical results reported in Part I. Errors are the author’s.