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Chief Justice John G. Roberts Jr. has extolled the advantages of U.S. Supreme Court opinions that clearly answer the legal question presented and rest on consensus (and, if possible, unanimity) among the justices. See, e.g., ABC News interview of Chief Justice Roberts by Jan Crawford Greenburg in Miami (Nov. 13, 2006); Jeffrey Rosen, Roberts’ Rules, Atlantic, Jan./Feb. 2007, at 104-13. Such decisions provide the most certain guidance to the bar and lower courts and best promote predictability and stability in the law. Worthy as that objective is, however, it is inevitable that the Supreme Court, in deciding the difficult and controversial issues that come before it, will not always render consensus rulings. In terms of the court’s institutional role to establish binding and uniform legal principles, most problematic are plurality decisions where a majority exists for the outcome of the case but no analytical rationale commands five votes. This is illustrated by the Court’s recent splintered decision in Rapanos v. U.S., 126 S. Ct. 2208 (2006), and the subsequent circuit conflict that has developed over its meaning. Plurality decisions have proliferated in recent years Historically, plurality decisions in the Supreme Court were relatively rare. The court issued fewer than 20 such decisions prior to 1938 and 45 before 1956. See Note, “The Precedential Value of Supreme Court Plurality Decisions,” 80 Colum. L. Rev. 756, 756 n.2 (1980); “Comment, Supreme Court No-Clear-Majority Decisions,” 24 U. Chi. L. Rev. 99, 99-100 & n.4 (1956-57). More recently, however, plurality decisions have proliferated. According to a computerized search, since 1977, when the Supreme Court decided Marks v. U.S., 430 U.S. 188 (1977), there have been approximately 200 plurality opinions of the Court, or an average of six each year. In Marks, the Supreme Court sought to provide guidance on the meaning of plurality decisions. It explained that “[w]hen a fragmented Court decides a case and no single rationale 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.’ ” Id. at 193 (1977) (citation omitted). More recently, however, the court has expressed some doubts about the utility of Marks. It stated in 1994, and reiterated in 2003, that the Marks “test is more easily stated than applied” and should not be “pursue[d] . . . to the utmost logical possibility when it has so obviously baffled and divided the lower courts that have considered it.” Nichols v. U.S., 511 U.S. 738, 745-46 (1994); Grutter v. Bollinger, 539 U.S. 306, 325 (2003). Marks involved the interpretation of the court’s prior decision in A Book Named “John Cleland’s Memoirs of a Woman of Pleasure” v. Attorney General of Mass., 383 U.S. 413 (1966). In Memoirs, a divided court held that the book Fanny Hill was not obscene under the First Amendment. A three-justice plurality applied a multipart test for obscenity; justices Black and Douglas concurred in the judgment under their absolutist view of the First Amendment. It was in these circumstances that Marks set forth the “narrowest grounds” standard, concluding that the “view of the Memoirs plurality therefore constituted the holding of the Court and provided the governing standards.” 430 U.S. at 194. Marks was a straightforward case. Because a work found not to be obscene under the plurality’s test would never be obscene under the absolute standard of justices Black and Douglas, the plurality’s rationale was (although substantively different) included or subsumed within the broader approach of the concurrence. Thus, the plurality’s views expressed the governing legal principle as the “narrowest ground” common to a majority of the court. Some lower courts have limited Marks to this situation. “ Marks is workable-one opinion can be meaningfully regarded as ‘narrower’ than another-only when one opinion is a logical subset of another” and thus represents a “common denominator” that “embod[ies] a position implicitly approved by at least five Justices who support the judgment.” King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991) (en banc). In other situations, some courts have followed a “necessarily produce” standard: “‘[w]here a Justice or Justices concurring in the judgment . . . articulates a legal standard which, when applied, will necessarily produce results with which a majority of the Court from that case would agree, that standard is the law of the land.’” Rappa v. New Castle County, 18 F.3d 1043, 1057, 1060 (3d Cir. 1994). For example, if one concurring justice would agree with a four-justice plurality in some cases and with a different four-Justice plurality in other cases, that concurrence has been held to state the controlling rule. Id. Significantly, under both the foregoing approaches, it is only the views of the justices in the majority, not those in dissent, that are to be considered. See, e.g., King, 950 F.2d at 783. Another alignment between plurality and concurring opinions is illustrated by Eastern Enterprises v. Apfel, 524 U.S. 498 (1998). In that case, a divided court struck down a retroactive application of the Coal Industry Retiree Health Benefit Act of 1992. Justice Sandra Day O’Connor’s opinion for a four-justice plurality adopted a takings analysis and did not consider due process; Justice Anthony M. Kennedy’s concurrence, providing the necessary fifth vote for the judgment, rejected the takings approach but concluded that there was a violation of due process. Thus, there was no overlap or common ground in the substantive analyses adopted by the plurality and the concurrence. Lower courts therefore have held that Eastern Enterprises establishes “no law of the land because no one standard commands the support of a majority.” U.S. v. Alcan Aluminum Corp., 315 F.3d 179, 189 (2d Cir. 2003), cert. denied, 540 U.S. 1103 (2004). It is in this context that the Rapanos issue arises. In Rapanos, the Supreme Court construed the term “navigable water” under the Clean Water Act. Writing for a four-justice plurality, Justice Antonin Scalia concluded that wetlands are “navigable waters” subject to the act if they have a “continuous surface connection” to an adjacent waterway that itself is “a relatively permanent body of water connected to traditional interstate navigable waters.” 126 S. Ct. at 2213. Under this standard, the judgment of the court of appeals was vacated and the case remanded for further proceedings. Kennedy concurred in the judgment. In his view, to demonstrate that a wetland is a “navigable water,” the government “must establish a significant nexus on a case-by-case basis when it seeks to regulate wetlands based on adjacency to non-navigable tributaries.” Id. at 2249 (Kennedy, J., concurring). Because this “significant nexus” test must be applied to the particular facts of the individual case, Kennedy agreed with the plurality that a remand was necessary. However, he expressly disagreed with the plurality’s substantive standard. Id. at 2242, 2246 (concurring opinion). Four justices dissented in an opinion by Justice John Paul Stevens. They concluded that wetlands are “navigable waters” if, as in Rapanos, they satisfy the applicable definition in the regulations of the Army Corps of Engineers. Because this did not depend on the specific facts of the case, these justices dissented from the judgment of a remand. However, their substantive legal standard was much closer to Kennedy’s than to the plurality’s. Divided ‘Rapanos’ ruling, subsequent circuit conflict Thus, the court in Rapanos split, 4-1-4. Recognizing this division, Roberts, in addition to joining Scalia’s plurality opinion, wrote a separate concurrence that cited Marks and Grutter and noted that the absence of a majority meant that “[l]ower courts and regulated entities will now have to feel their way on a case-by-case basis.” Id. at 2236 (concurring opinion). In addition, Stevens’ dissent observed that, because the four dissenting justices would hold that wetlands are “navigable waters” “in all . . . cases in which either the plurality’s or Justice Kennedy’s test is satisfied, . . . [the Clean Water Act would apply] if either of those tests is met.” Id. at 2265 (dissenting opinion) (emphasis in original). Following Rapanos, lower courts are in conflict over the legal effect of the court’s decision. The 9th U.S. Circuit Court of Appeals has simply assumed that Kennedy’s concurring opinion is controlling. Northern California River Watch v. City of Healdsburg, 457 F.3d 1023, 1025 (9th Cir. 2006). The 7th Circuit likewise has concluded that Kennedy’s concurrence provides the governing rule. While the court recognized that there could be cases where the plurality would uphold federal jurisdiction but Kennedy would not because the particular nexus was not “significant,” that would be “rare” and therefore, “as a practical matter,” his opinion constitutes the narrowest common ground under Marks. U.S. v. Gerke Excavating Inc., 464 F.3d 723, 724-25 (7th Cir. 2006). By contrast, the 1st Circuit, following Stevens’ analysis, has held that wetlands are “navigable waters” wherever the standard of either the plurality or Kennedy is met. In both situations, there would be at least five votes on the court for federal jurisdiction-depending on the case, the four in the dissent plus Kennedy, or the four in the plurality and the four in the dissent without Kennedy. In so ruling, the 1st Circuit expressly recognized that this approach was at odds with the D.C. Circuit’s decision in King that the dissenting justices should not be considered in the analysis. U.S. v. Johnson, 467 F.3d 56, 64-66 (1st Cir. 2006). Mark I. Levy is chairman of the Supreme Court and appellate advocacy practice in the Washington office of Atlanta-based Kilpatrick Stockton.

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