Last term, the United States Supreme Court was expected to clarify its decision in Marks v. United States, 430 U.S. 188 (1977), which adopted a rule governing the precedential value of 4-1-4 decisions of the Court. Under Marks, the Court adopted the following rule (which had been proposed by three Justices the previous year):
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 . . . .”
Hughes v. United States, ___ S. Ct. ___ (June 4, 2018), which concerned the eligibility of a criminal defendant to receive a sentence reduction after entering a binding plea agreement with a recommended sentence length, seemed to present the opportunity to revisit the Marks rule, because a 4-1-4 split in Freeman v. United States, 564 U.S. 522 (2011), left unclear what rule applied. In Freeman, Justice Sotomayor largely agreed with the four-justice dissent’s rationale, but concurred in the judgment announced by the four-justice plurality for reasons separately stated with which none of the eight other Justices agreed. Though Hughes seemed to give the Court the chance to clarify the application of Marks, ultimately a majority of the Court was able to decide the sentencing issue on the merits, making it unnecessary to revisit Marks.
Hughes got us thinking about the fact that Wisconsin has no Marks rule. And the Wisconsin court in recent years has increasingly been unable to agree on a majority rationale for decisions. Nevertheless, the court continues its practice of issuing so-called “lead opinions.” A lead opinion is the first in the series of opinions published in a given case, but it commands no majority. A couple of the justices have been thinking about this issue, especially since the decision in State v. Lynch, 2016 WI 66 (2016), in which five of the seven agreed that the Court of Appeals ought to be reversed, but no four agreed on a rationale for reversal. In this context, Lynch generated an interesting mandate: “As a result of a divided court, the law remains as the court of appeals has articulated it.”