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It is rare, bordering on never, for the U.S. Supreme Court to discuss during an oral argument how it makes its decisions and how they should be interpreted.

But an hourlong argument on Tuesday was all about that. The nine justices debated about what should happen when they issue fragmented decisions, like those that are split 4-1-4.

For 41 years, the court’s ruling in Marks v. United States provided the answer: “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.”

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Tony Mauro

Tony Mauro, based in Washington, covers the U.S. Supreme Court. A lead writer for ALM's Supreme Court Brief, Tony focuses on the court's history and traditions, appellate advocacy and the SCOTUS cases that matter most to business litigators. Contact him at [email protected] On Twitter: @Tonymauro

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