Some thoughts on the upcoming Heller decision

As pro-gun and anti-gun advocates and supporters across the nation await the Supreme Court's decision in Heller v. D.C., the landmark Second Amendment case challenging the constitutionality of Washington, D.C.'s handgun ban, much ink and many electrons have been spilled in speculating on how the Court will decide. Will the Court decide 5-4? 6-3? Some other combination?

Of course, no one outside the Court really knows. Here's something to think about, though.

Writing last week at Volokh Conspiracy, Professor Orin Kerr observes that the low number of 5-4 Supreme Court opinions this term and speculates that one of the reasons for this is Chief Justice Roberts' willingness to accept controlling plurality opinions, rather than try to force a majority opinion out of an often closely divided court. In such cases with no one majority opinion, the controlling precedent for future cases and lower courts is the opinion whose members concurred in the (winning) result on the narrowest grounds. This is known as the Marks rule, derived from the Supreme Court's 1977 decision in Marks v. United States, 430 U.S. 188. As Professor Kerr explains,

First, a bit of background. It takes five votes for an opinion to become a binding "Opinion of the Court." When there is no one majority opinion, the Court has generally embraced what is known as the Marks rule, after Marks v. United States, 430 U.S. 188 (1977). The Marks rule is (essentially) that if there is no one majority opinion for the Court, the controlling opinion for future cases is the narrowest decision in favor of the winning side. As the Court put it in Marks, "When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgment on the narrowest grounds."

There isn't any one "opinion of the Court" in such cases, but the lower courts must follow the narrowest opinion for the winning side as if it were the majority opinion. And in recent years, the Justices themselves have largely treated the controlling opinions under Marks as if they were majority opinions for purposes of stare decisis. An example is Coker v. Georgia, where the binding opinion under the Marks rule was Justice White's plurality decision; in the recent litigation in Kennedy v. Louisiana, that plurality opinion was treated essentially as if it were a majority opinion.

This is just a guess, but I would speculate that the low number of 5-4 cases may result in part from Chief Justice Roberts being more willing than the late Chief Justice Rehnquist to write or assign controlling plurality opinions instead of trying to force majority opinions out of a closely divided Court. In particular, the current configuration on the Court lets Chief Justice Roberts aim for a center-right position in which he starts with Alito, Kennedy, and himself on board. By taking a center-right position, he has a chance of picking up a vote from one of the liberal-leaning Justices who feel they can gain more by joining a center-right opinion than by dissenting. End result: fewer 5-4 decisions.

For example, on Monday the Supreme Court decided United States v. Santos, a case where the Marks rule applies. In Santos, a money-laundering case, the Court divided with four Justices on either side of the issue, and a concurrence by Justice Stevens in the result of Justice Scalia's opinion, whose opinion was supported by three other Justices. In this case, Justice Stevens' concurrence formed the narrowest basis for the decision, and thus under the Marks rule, is effectively the controlling opinion, even though all eight of the Court's other Justices did not share his legal reasoning on the issue!

So, in the event that Heller gets decided and there is not a single majority opinion (at least five votes for the result), then lower courts would have to use the Marks rule to figure out the holding of the Court's decision. For example, it may be that a majority of the Justices rule that the Second Amendment is an individual right, and that D.C.'s total ban on all handguns violates that right. The Justices, however, might differ on the legal rationale for why the ban is unconstitutional. In the event that no single rationale is endorsed by a majority of the Justices, the Marks rule would indicate that the plurality opinion that rests on the narrowest rationale would constitute the holding of the Court.