The Precedential Value of Supreme Court Plurality Decisions

Author(s): Linda Novak

Source: Columbia Law Review, Vol. 80, No. 4 (May, 1980), pp. 756-781
Published by: Columbia Law Review Association, Inc.
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NOTES
The Precedential Value of Supreme
Court Plurality Decisions
The number of Supreme Court plurality decisions' has increased
dramatically in recent years.2 Because they do not provide any single
line of reasoning supported by a clear majority of the Court, these deci-

sions pose substantial difficulties for lower courts attempting to ascertain

their precedential value, difficulties compounded by the variety of forms

that plurality decisions can take.3 With the benefit of only spotty guidance from the Supreme Court,4 lower courts have relied largely on intuition and common sense in handling plurality decisions. Neither they
nor legal scholars have articulated a more systematic and principled approach to the problem.5
This Note first examines the values underlying the precedential system

of judicial decisionmaking and the role plurality opinions play in this

system. The Note then identifies approaches commonly used by courts

to deal with plurality decisions, analyzing their theoretical soundness and

practical utility. Finally, the Note suggests normative standards to promote a more rational treatment of plurality decisions.

1. Plurality decisions, also called no-clear-majority decisions, are those in which a

majority of the Court agrees upon the judgment but not upon a single rationale to support
the result. Thus, there is no "opinion of the Court" in the ordinary sense. Plurality
decisions are to be distinguished from affirmances by an equally divided Court, when there

is no majority agreement even on the result, and from per curiam opinions, in which a
majority of Justices expresses at least summary agreement on the reasoning. This Note
uses the term "plurality opinion" or "the plurality" to refer to the opinion designated as the
lead opinion of the Court, which is not always the opinion subscribed to by the largest

number of Justices. Other opinions that join the judgment are designated as "concurrences,"

even if they receive more votes than the lead opinion.

2. The Supreme Court issued 45 plurality opinions from the early 1800's, when Chief
Justice Marshall discarded the practice of issuing individual opinions seriatim and began
issuing "opinions of the Court," to 1956. For an exhaustive survey of the plurality decisions
issued during that period and their treatment by lower courts, see Comment, Supreme Court
No-Clear-Majority Decisions: A Study in Stare Decisis, 24 U. Chi. L. Rev. 99 (1956)
[hereinafter cited as Chicago Comment]. Since the 1955 Term the Court has issued 101
plurality decisions.

3. Plurality decisions can be typed according to the exact alignment of the Justices
and the relationships between the lines of reasoning employed. Each type of opinion poses
distinct problems of interpretation. See generally Chicago Comment, supra note 2, suggesting
that there is a pattern to the treatment courts have given to different types of opinions.
4. See Marks v. United States, 430 U.S. 188 (1977); Gregg v. Georgia, 428 U.S. 153
(1976), discussed in notes 30-31 and accompanying text infra.
5. Several commentators have discussed the problems posed by plurality opinions without

specifically considering how such opinions should be interpreted by the lower courts. See,

e.g., Davis & Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974
Duke L.J. 59 [hereinafter cited as Juridical Cripples] (examining reasons for increase in
plurality opinions, noting adverse effects of such decisions, and suggesting alternatives);
Comment, A Suggestion for the Prevention of No-Clear-Majority Judicial Decisions, 46
Tex. L. Rev. 370 (1968) [hereinafter cited as Texas Comment]; Note, Lower Court Disavowal
of Supreme Court Precedent, 60 Va. L. Rev. 494 (1974) [hereinafter cited as Lower Court
Disavowal]; Chicago Comment, supra note 2.

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1980] PLURALITY OPINIONS 757

I. THE ROLE OF THE SUPREME COURT IN PROMULGATING
AND CONSTRUING PLURALITY OPINIONS

A. Implications of Plurality Opinions for Judicial Decisionmaking

The Supreme Court performs two essential functions: it resolves the
particular controversies that come before it and provides guidance for

lower courts in deciding similar cases in the future. Although both of

these functions are served to some extent by the mere issuance of a judgment,6 they are better served when the Court sets out a clear and persuasive rationale assented to by a majority of Justices. A majority rationale not only justifies the judgment reached in the particular case but also

offers broader legal principles and policy considerations upon which lower
courts can draw.

A coherent majority rationale is particularly important in the

American legal system, which has traditionally placed special emphasis
on the reasoning underlying a particular decision to determine its precedential value.7 A statement of the Court's reasoning helps to shape the

6. Confusion is often engendered by varying uses of the terms "judgment," "rule," and

"reasoning." For purposes of this discussion, "judgment" refers to the portion of a court's

decision that designates the victor in the particular case and the relief granted. The term
"opinion" indicates the part of the decision that sets forth the reasoning supporting the

judgment. "Specific result," or simply "result," is used to describe the holding of the case
on the particular factual situation before the court. The terms "reasoning" or "rationale"
refer to the more generalized grounds of decision, which may be broken down into two
components. One is the rule of decision, or legal principle that is applied to the facts of the
case to reach the specific result. The second component is the more generalized reasoning
that indicates the fundamental values and policies underlying the rule of decision.
These terms are most easily understood by illustrating their application to a particular
decision. For example, in Furman v. Georgia, 408 U.S. 238 (1972), see notes 27-29 and
accompanying text infra, the specific result was that on the particular facts of the case,
imposition of the death penalty was unconstitutional. The "reasoning" or "rationale"
consisted of the lines of analysis leading the various Justices to that conclusion. In the
plurality opinion, the rule of decision was that capital punishment is unconstitutional per se;
this rule was based in turn on a more general set of policies, values, and legal interpretations. The rule of decision expressed in the concurring opinion was that the imposition of
capital punishment pursuant to arbitrary and capricious procedures is unconstitutional. This
rule, too, arose out of a more general analysis. For a detailed discussion of this legal
terminology, see Montrose, The Language of, and a Notation for, the Doctrine of Precedent,
2 U. W. Austl. Ann. L. Rev. (pt. 1) 300, 308 (1952).
7. The American system of precedent places substantially greater reliance on the

reasoning component of judicial decisions than, for example, the British system, where the
House of Lords issues individual opinions with the understanding that only the specific
result will have precedential force. See generally Catlett, The Development of the Doctrine
of Stare Decisis and the Extent to Which It Should Be Applied, 21 Wash. L. Rev. 158
(1946).

American legal commentators have consistently stressed the importance of a wellreasoned opinion. See, e.g., Wechsler, Toward Neutral Principles of Constitutional
Law, 73 Harv. L. Rev. 1, 19, 21 (1959), in which Professor Wechsler suggests that "A
principled decision . . . is one that rests on reasons with respect to all the issues in the case,
reasons that in their generality and their neutrality transcend any immediate result that is

involved." Wechsler criticizes the Court's resort to "unexplained decisions," observing that

even though "nine men often find it easier to reach agreement on result than upon reasons,"
it is "essential [that] the variations of position be disclosed." See also White, The Evolution
of Reasoned Elaboration: Jurisprudential Criticism and Social Change, 59 Va. L. Rev.

279 (1973).

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758 COLUMBIA LAW REVIEW [Vol. 80:756

conduct and decisions of the bench, bar, and general public, and can
facilitate decisions whether to litigate, settle, or not to act at all. Moreover, articulation of the legal principles underlying a particular decision,
and adherence to those principles in subsequent cases, serves as a check
on judicial bias and arbitrariness. Just as importantly, it creates an appear-

ance of impersonality, fairness, and consistency that fosters public faith

in the judicial process.8 Our system's emphasis on reasoning suggests that

the objectives of the precedential system-certainty, reliance, equality, and

efficiency9-are ultimately best served not by blind adherence to particular
judgments deemed to be "controlling," but by the orderly development of

well-reasoned legal principles that build logically upon each other and can

survive testing over time and in a variety of situations.'0

The traditional notion of the ratio decidendi was that the judgment

and reasoning components of judicial decisions should be fused into one

cohesive whole." The recent increase in plurality decisions, however, in-

dicates a departure from this theoretical ideal, because plurality decisions

frequently advance different rationales to support the same judgment.

Although the lack of a supporting majority rationale impairs neither the

effect of the judgment in the particular case nor its precedential value in
identical cases, it clearly undermines the precedential value for dissimilar

cases. Faced with ambivalent signals and discrete, often contradictory

rationales, lower courts feel compelled to guess how a majority of Justices

would resolve the particular legal issue presented, and at least one court
has thrown up its hands in frustration, refusing to accord a plurality deci-

sion any weight whatsoever.12

8. See generally Hardisty, Reflections on Stare Decisis, 55 Ind. L.J. 41 (1979).

9. The goal of certainty refers primarily to the possibility of predicting judicial decisions,
and is grounded in the belief that it is important that individuals be able to predict the legal
consequences of their actions. The goal of reliance reflects the view that, having induced a
person to act in a certain manner, our legal system assumes an obligation not to thwart that

person's expectation of legality. Equality refers to the fundamental expectation of our

system of justice, that similarly situated individuals will be treated equally. Finally, adherence

to precedent promotes judicial efficiency, by providing courts with a ready source of justification for reaching a particular decision. For a more detailed discussion of the major justifica-

tions for the doctrine of precedent, see R. Wasserstrom, The Judicial Decision 60-73 (1961).
10. One commentator has expressed this distinction in terms of "rule" stare decisis,
where a court adheres to the general rule of law promulgated by a prior court in support
of its judgment, and "result" stare decisis, where a court is free to adopt a new justifying
rule so long as the result reached is consistent with the result in the earlier case. Hardisty,
supra note 8, at 52-57. Consistency in this context does not mean that the court must reach

an identical result, but rather that any difference in result must be justified by a material
difference in the facts of the later case. "Result" stare decisis may imply a less restrictive
use of precedent, for it provides subsequent courts with greater leeway to modify the rule of
law proposed in the prior decision. The choice of whether to follow "result" stare decisis
or "rule" stare decisis depends in large measure on the clarity, specificity, and definiteness
with which the court establishing the precedent articulated its grounds of decision. Id.
This distinction between "rule" and "result" stare decisis provides a useful conceptual
framework for analyzing lower court treatment of plurality decisions.
11. According to the strict classical theory of precedent, the lack of a clear majority
rationale in support of the judgment deprived the judgment of all precedential value, and the
decision was considered authority for the result only. See generally H. Black, Law of
Judicial Precedents 10 (1912); E. Wambaugh, The Study of Cases 98 (2d. ed. 1894).

12. See, e.g., Baker v. State, 15 Md. App. 73, 289 A.2d 348 (1972), cert. denied,
411 U.S. 951 (1973), discussed in notes 80-84 and accompanying text infra.

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1980]

PLURALITY

OPINIONS

759

Commentators have sought to explain this apparent breakdown in the

judicial decisionmaking process by pointing to a number of factors.'3 Institutional pressures are one possible cause. The increasingly heavy
Supreme Court workload may render the process of hammering out in-

dividual differences and articulating a clear common ground of agreement

simply too time-consuming and difficult.'4 Another likely factor is the

Court's more frequent involvement in controversial, emotionally charged
areas of the law, such as obscenity, capital punishment, and affirmative
action, where efforts at compromise are likely to founder in the face of

strongly held personal convictions.'- Aggravating the effects of involvement in these more volatile or undeveloped areas of the law are ideolog-

ical splits and personality differences among the Justices.'6 Yet another
important factor is the quality of leadership provided by the Chief Justice,

in terms of his desire and ability to promote compromise and to persuade

other Justices to subordinate individual differences.'7

Whatever its root causes, the proliferation of plurality decisions has

far-reaching implications. The bulk of commentary on the subject has

unequivocally condemned the practice, stressing the erosion of Supreme

Court credibility and authority as a source of moral and legal leadership.'8

Commentators have also criticized plurality decisions because they engender confusion in the lower courts, causing instability and uncertainty
in critical areas of the law, which in turn produces wasteful and repeti-

tious litigation.19
13. See generally Juridical Cripples, supra note 5; McWhinney, Judicial Concurrences
and Dissents: A Comparative View of Opinion-writing in Final Appellate Tribunals, 31 Can.
B.R. 595 (1953); Texas Comment, supra note 5.
14. One commentator has suggested that although a reduced workload might facilitate
the resolution of internal controversies in some cases, the lack of time is not by itself an
adequate answer, and that even extended opportunities for collegial negotiation will not
result in compromise when Justices hold sharply differing views. See Juridical Cripples,
supra note 5, at 77-80.

15. In exercising its selective jurisdiction, the Court increasingly has devoted its
attention to areas of constitutional law involving basic policy issues, and thus has gradually
been converted into "essentially a constitutional tribunal." McWhinney, supra note 13, at
617. Efforts to obtain majority agreement in these more perplexing areas of the law will
often fail, since "the more a decision turns on a question of basic political beliefs
rather than on the construction of precedent, . . . the more likely it is that each justice
will insist on insuring that his voice is heard." Juridical Cripples, supra note 5, at 81.
16. See, e.g., B. Woodward & S. Armstrong, The Brethren (1979) (detailed accout
of conflicts on Burger Court).
17. See generally B. Woodward & S. Armstrong, supra note 16; McWhinney, supra
note 13, at 617-19.

18. See, e.g., Juridical Cripples, supra note 5; White, supra note 7; Texas Comment,
supra note 5.

19. One commentator has condemned the individualistic trend of judicial opinions
because it demonstrates reluctance to submerge minor differences at the expense of the
values of certainty *and uniformity. Ballantine, The Supreme Court: Principles and
Personalities, 31 A.B.A.J. 113 (1945). Another critic, recognizing that coherence is
particularly difficult to attain in still-developing and controversial areas of law, condemns
plurality opinions that agree only on the result because they do not fulfill the Court's
responsibility to respond to social change. He also argues that the recent resort to
individual pronouncements frustrates the need for public information and understanding of
the issues involved. White, supra note 7, at 301. For some suggestions of ways to reduce the
number of plurality opinions, see Juridical Cripples, supra note 5, at 81-85 (per curiam

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760 COLUMBIA LAW REVIEW [Vol. 80:756

In denouncing the Supreme Court for abdicating its essential function

and promulgating "juridical cripples,"20 however, the commentators have

generally overlooked the positive effects that plurality decisions may have,
most notably on judicial freedom and flexibility. When there is a funda-

mental disagreement among the members of the Court on a particular

legal principle, it is arguably more valuable for the sound development of
the law to have the Justices articulate their individual positions than to

insist on superficial agreement.2' Plurality opinions are often more

thoughtful and of generally higher quality than short per curiam opinions,22

because a minority opinion must be particularly convincing to command

respect. The writer of a minority opinion need not water down or restrict

his views to muster majority support, and thus plurality decisions may
free the Justices to engage in more innovative and creative analyses and
to tackle more controversial and unsettled issues, with the knowledge that

their tentative views will not be considered binding on lower courts.

Multiple opinions can also mitigate the stranglehold of a strict precedent

system by affording lower courts increased opportunities to distinguish
future cases, and by providing theories from which alternative lines of
reasoning can be derived in future cases.23 Thus, plurality decisions allow
lower courts an extra measure of freedom to adapt to changing condi-

tions and to achieve equitable results within the logical boundaries of

Supreme Court mandates.

In attempting to extract meaningful guidance from Supreme Court
plurality decisions, lower courts have generally recognized that different

types of plurality decisions may pose significantly different problems of

interpretation and may require different analytical approaches.24 The
Supreme Court itself, however, has provided guidance on how to interpret
only one type of plurality decision, that in which the opinions offered in
support of the result appear to be of varying scope or breadth. In such

a situation, the Supreme Court has indicated that the opinion concurring
in the judgment on the "narrowest grounds" represents the highest comopinion expressing highest common denominator of agreement, or alternatively division of
each opinion into discrete "sections" to indicate which Justices agree on each particular
issue); Texas Comment, supra note 5, at 376-78 (plurality opinion as binding precedent, to
be issued in conjunction with separate individual opinions).
20. See Juridical Cripples, supra note 5.

21. Multiple opinions do tend to impair clarity and certainty in the law, but it is worth
noting that the need for "tidiness" in Supreme Court decisions may be less pressing in the
United States, where the Court plays a relatively limited role in promoting uniformity, than
in countries such as Canada, where the Supreme Court is the general appellate tribunal
for the provincial courts in the "private law" sphere, or Switzerland, where most areas of the
law are delegated to the central government. See generally McWhinney, supra note 13, at
619-25. This does not mean that confusion and instability are negligible problems, but
rather that in particular areas of the law the values of certainty and predictability may be less
important than the need for carefully considered legal principles.
22. Contrast the per curiam opinion in a recent death penalty case, Green v. Georgia,
442 U.S. 95 (1979), with the lengthy and elaborately reasoned opinions in Gregg v.
Georgia, 428 U.S. 153 (1976) discussed in notes 30-31 and accompanying text infra.
23. See generally McWhinney, supra note 13, at 623.
24. See Part II infra.

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1980]

PLURALITY

OPINIONS

761

mon denominator of majority agreement,25 and thus should be regarded

as authoritative for future cases.26
B. The "Narrowest Grounds" Approach

The Supreme Court first enunciated the "narrowest grounds" approach

in its decisions concerning the constitutionality of capital punishment. In
Furman v. Georgia,27 a plurality decision, the Court held the imposition
of the death sentence in that particular case unconstitutional. The five
Justices supporting the judgment issued five separate opinions. Two
Justices concluded that capital punishment was unconstitutional per se,28

and three Justices concurred on the ground that Georgia's statutory procedures governing the death penalty were constitutionally defective. These

latter three Justices declined to reach the question whether capital punish-

ment might be constitutionally permissible under other circumstances.29

In Gregg v. Georgia"0 the Court was again called upon to determine
the constitutionality of Georgia's capital punishment scheme, which the
state had revised in light of Furman. Thus, Gregg presented the task of
determining the precedential effect of Furman's nine opinions. The Gregg

plurality interpreted the holding in Furman as "that position taken by

those Members who concurred in the judgments on the narrowest

grounds-Mr. Justice Stewart and Mr. Justice White."3' The Court therefore concluded that because the new statutory procedures were free of
the constitutional defects noted by Justices Sitewart and White in Furman,
the imposition of the death penalty pursuant to the new statute was consitutionally permissible.
The Court did not explain, however, why the views of Justices
Stewart and White should be regarded as "narrower" than the views of
the other Justices, or why the "narrowest" view should automatically be

regarded as authoritative. The only plausible explanation is that the views

of Justices Stewart and White were more restricted in scope and more
closely tailored to the priecise facts in Fuirman, whereas the views of the
other majority Justices were grounded in more general principles susceptible to wider application.
The Supreme Court reiterated the narrowest grounds approach, again
without explanation, in attempting to formulate standards to govern ob-

25. Gregg v. Georgia, 428 U.S. 153, 169 n.15 (1976) (plurality opinion).
26. This highest common denominator effect occurs, for example, because there may be
an overlap between the reasoning underlying the plurality and concurring opinions, with
the narrower of the two opinions in effect telescoped within the broader one. See Chicago
Comment, supra note 2, at 140-50.
27. 408 U.S. 238 (1972).

28. Id. at 257 (opinion of Brennan, J.); id. at 314 (opinion of Marshall, J.).
29. Id. at 306 (opinion of Stewart, J.); id. at 310 (opinion of White, J.); id. at 240

(opinion of Douglas, J.).

30. 428 U.S. 153 (1976). Gregg itself was a 3-2-1-1-(2) plurality decision.

31. Id. at 169 n.15 (plurality opinion).

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762 COLUMBIA LAW REVIEW [Vol. 80:756

scenity cases. In Roth v. United States,32 a clear majority of the Court

promulgated the rule that a publication is "obscene" if "to the average
person, applying contemporary community standards, the dominant theme

of the material taken as a whole appeals to prurient interest."33 The

Roth standard was cast into question, however, by the Fanny Hill case,34
where, by a 3-2-1-(3) vote,35 the Court found that the book in question
was not obscene. The Fanny Hill plurality reached its finding of nonobscenity on the ground that a book could not be declared obscene

unless it was "utterly without redeeming social value."36 Two Justices

concurred on the ground that the first amendment provided an absolute
shield against governmental action aimed at suppressing obscenity.37
Justice Stewart concurred separately on the theory that only hard-core

pornography could be suppressed.8 Only the dissenters chose to follow

Roth; applying the "prurient interest" standard, they argued that the book
was obscene.39

Nine years after the Fanny Hill decision, in United States v. Marks,40

the Court of Appeals for the Sixth Circuit was confronted with the task
of ascertaining the applicable standards for judging obscenity after Roth

and Fanny Hill. Observing that no more than three Justices had assented

to any standard proposed in Fanny Hill, the court concluded that this
case had failed to establish any authoritative rule. Consequently, it ig-

nored Fanny Hill completely and followed the earlier "prurient interest"
standard enunciated in Roth. On appeal, however, the Supreme Court
instructed the court of appeals to follow the "narrowest grounds" ap-

proach, indicating that the Fanny Hill plurality's "utterly without redeeming social value" test, as the narrowest opinion in support of the result,

constituted the holding of the case and was thus the authoritative standard for future cases.4' The narrowest grounds approach stems from the

well-established prudential concerns arising out of the "case or controversy" requirement,42 concerns that disfavor the formulation of unneces-

sarily broad principles and encourage courts to confine the scope of

decisions to those issues necessary for resolution of the particular case.
This is especially true in the area of constitutional law, where the Court
32. 354 U.S. 476 (1957).
33. Id. at 489.
34. A Book Named "John Cleland's Memoirs of a Woman of Pleasure" v. Attorney Gen.
of Mass., 383 U.S. 413 (1966).
35. The notation system for recording voting alignments is as follows: first, the number
of Justices joining the plurality, or lead, opinion of the Court is listed; second, the number

of Justices joining each separate concurring opinion is noted; finally, the number in parentheses indicates the dissenting Justices.
36. 383 U.S. at 419 (opinion of Brennan and Fortas, J.J., and Warren, C.J.) (emphasis
omitted).
37. Id. at 433 (opinion of Douglas, J.); id. at 421 (opinion of Black, J.).

38. Id. at 421 (opinion of Stewart, J.).

39. Id. at 450 (opinion of Clark, J.); id. at 461 (opinion of White, J.).
40. 520 F.2d 913 (6th Cir. 1975), rev'd, 430 U.S. 188 (1977).
41. Marks v. United States, 430 U.S. 188, 192-93 (1977).
42. U.S. Const. art. III, ? 2.

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1980]

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OPINIONS

763

has indicated that legal principles should be developed in decisions

tailored to the issues actually before the Court, and that sweeping statements and expansive pronouncements on social policy lie beyond the province of the judiciary.43

In some circumstances-for example, when a narrowest ground that

would apparently be subscribed to by a majority of the Court is readily
ascertainable-the narrowest grounds approach may be an important
means of promoting values of certainty and reliability. An alter-

native approach allowing lower courts to limit the precedential value

of the decision to its specific result or to disavow it entirely may lead
to inconsistent results and confusion, and ultimately necessitate Supreme

Court review. While "forcing" the Court in this manner to provide a

definitive pronouncement is sometimes desirable, Supreme Court review
might also be premature, and possibly counterproductive if further disagreement ensues. The formulation of sound, enduring principles in complex or controversial areas of the law may require more time and

opportunity to draw on the experience and reflection of lower courts.

On the other hand, however, the narrowest grounds approach is open
to serious criticism. Determining whether there is in fact a narrowest ground
in any given case and, if there is, the precise nature and extent of the overlap in various concurring opinions, is a task posing substantial difficulties
in itself. It is easy to isolate the narrowest ground in those situations

where the plurality relies on rationale A in support of the result, and the
concurrence clearly agrees on the applicability of that rationale, but also
goes a step further and espouses rationale B as well. In such cases the
plurality rationale may fairly be regarded as the narrowest ground em-

bodying the reasoning of a majority of the Court, and that rationale should
be binding on lower courts for future cases.

More often, however, there is no clear and explicit agreement on the

reasoning supporting the result; instead, two essentially distinct rationales
are proposed, and the overlap, if any, is merely implicit. In such cases,

there is no magical formula for determining which of the rationales involved is the narrower. Indeed, the term "narrow" may bear various
meanings, but the Court has not clarified its use of the word. In one
context, for example, decisions based on statutory grounds have tradi-

tionally been regarded as "narrower" than ones based on constitutional

grounds." In other cases, the narrowest opinion may be the one most
clearly tailored to the specific fact situation before the Court and thus

applicable to the fewest cases, in contrast to an opinion that takes a more

absolutist position or suggests more general rules. Under this approach,

43. See, e.g., Ashwander v. TVA, 297 U.S. 288, 324 (1936) ("The judicial power

does not extend to the determination of abstract questions.").

44. See, e.g., Spector Motor Service, Inc. v. McLaughlin, 323 U.S. 101, 105 (1944);
Ashwander v. TVA, 297 U.S. 288, 347-48 (1936) (Brandeis, J., concurring).

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764 COLUMBIA LAW REVIEW [Vol. 80:756

the truly "narrowest" ground of decision is the specific result itself. A

third possibility would regard the narrowest opinion as the one that departs the least from the status quo. This approach would interpret nar-

rowness as an aspect of judicial conservatism, in the sense not only of

conformity to precedent and tradition in the law, but also to established
social, moral, or political values.

These different definitions of "narrow" have different implications and

may lead to different results. The first is in essence a prudential rule,
arising out of firmly established judicial policies. The second suggests a
more logical-analytical approach, but it might operate to curtail the Su-

preme Court's role of providing general guidance on the law. The third

definition will often require subjective value judgments, a practice that

many would find disturbing in light of the ideal of judicial neutrality and
objectivity.
The Supreme Court itself has generally regarded the narrowest ground
as the rationale offered in support of the result that would affect or con-

trol the fewest cases in the future.45 The problem with this approach is that
while the narrower result does in fact represent an area of majority agreement that safely can be followed, the general reasoning supporting that
result may reflect the views of only a minority of the Court, and thus
should not be binding on lower courts.46
In Furman, for example, the narrowest result is apparently that capi-

tal punishment is unconstitutional when imposed pursuant to arbitrary and

capricious procedures. This proposition represents the highest common
denominator of majority agreement, because in any future case where the

Justices who concurred on the arbitrary procedure rationale would find

the death penalty unconstitutional, the more absolutist Furman plurality

would also find it unconstitutional. Conversely, in any case where those

who concurred in Furman would find the death penalty constitutionally
permissible, the Justices who dissented in Furman would align themselves

with the concurrence. The two lines of reasoning leading to these results,

however, are significantly different. Adherence to the concurring rationale

would make the nature of the statutory procedures involved the determin45. See, e.g., the Gregg Court's treatment of Furman, discussed in text accompanying
note 31 supra.

46. This difficulty with the narrowest grounds approach was recognized by one court in
its discussion of Elrod v. Burns, 427 U.S. 347 (1976), a 3-2-(3) plurality decision. In Finkel v.
Branti, 457 F. Supp. 1284, 1289 (S.D.N.Y. 1978), aff'd without opinion, 598 F.2d 609 (2d
Cir.), aff'd, 48 U.S.L.W. 4331 (Mar. 31, 1980), the district court noted that under the
narrowest grounds approach it would have to regard the concurring opinion in Elrod as
authoritative, but it declined to read Elrod "so narrowly as the 'least common denominator' test would suggest .... " Since three of the five Justices constituting the majority in
Elrod had joined in the "broader" plurality opinion, the court reasoned that "[e]ven if it
is conceded that the particular language of the concurring opinion must be taken as controlling, it is clear that the analysis and reasoning of the pluraity is relevant to an
elucidation of the holding of the concurring opinion." Id. at 1289 n.9. But cf. Ramey v.
Harber, 431 F. Supp. 657, 662 (W.D. Va. 1977) (applying narrowest grounds approach to
find concurring opinion authoritative), modified, 589 F.2d 753 (4th Cir. 1978), cert.
denied, 442 U.S. 910 (1979).

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1980] PLURALITY OPINIONS 765

ative issue, whereas under the plurality rationale, such an inquiry would
be extraneous. Thus, the reasoning contained in the Furman concurrence,
although "narrower" than the more absolutist per se principle espoused by
the plurality, does not in any meaningful way reflect a majority viewpoint.
Consequently, there is no reason automatically to regard that rationale as
binding on lower courts in future cases.
In Fanny Hill the problems caused by the narrowest grounds approach are even more apparent. The decision proposes three separate
lines of analysis in support of the result reached, and a fourth is proposed
by the dissenters. The choice of the plurality's "utterly without redeeming
social value" test as the "narrowest" is once more based not on any
meaningful overlap in the reasoning underlying the various analyses, but

on the fact that adherence to the plurality test will yield the "right"
results. In other words, any book that a court would find not to be
obscene under that standard would presumably not be obscene under the
two tests proposed by the concurring Justices.
Another drawback of the narrowest grounds approach is that it may
unduly hamper development of the law. By ensuring that the Justice who

aligns himself with a majority of the Court on the narrowest grounds will
prevail, the approach may encourage the Justices to limit their opinions
as closely as possible to the specific facts, and to avoid more general discussion of the broader issues involved. In effect, then, the narrowest
grounds approach tends to promote a conservative process of judicial
development.

The Supreme Court's treatment of Furman and Fanny Hill suggests

yet another serious drawback to the narrowest grounds approach-it tends
to vest disproportionate power in the "swing" Justice or Justices by according their "narrow" opinion controlling weight, even though the reasoning expressed does not reflect a true consensus of the Court.
Indeed, in recent years, a significant number of decisions in critical
areas of constitutional law have been dictated, in effect, by the views of
a single "swing" Justice.47 For example, Justice Powell's concurring opin47. A notable example is Justice Black's opinion in Oregon v. Mitchell, 400 U.S.

112 (1970), a case in which several states challenged the provision of the Voting Rights
Act Amendments of 1970, Pub. L. No. 91-285, ?? 301, 302, 84 Stat. 318 (1970), lowering
the voting age in federal and state elections to eighteen. Justices Douglas, Brennan, White
and Marshall found the provision constitutional as a legitimate exercise of Congress's power

to enforce equal protection. 400 U.S. at 143-44 (opinion of Douglas, J.); id. at 240
(opinion of Brennan, White, and Marshall, JJ.). Justices Harlan, Stewart, Burger, and
Blackmun found it unconstitutional. Id. at 213 (opinion of Harlan, J.); id. at 296 (opinion

of Stewart and Blackmun, JJ., and Burger, C.J.). Justice Black, writing the opinion of the
Court, found the voting age provision constitutional for federal elections, id. at 122-24, 130,
but not for state elections, id. at 130. He reasoned that the fourteenth amendment, aimed
primarily at racial discrimination, was inapposite to Congress's determination to lower the
voting age, because Congress made no finding that an age differential had a racial impact.

Id. at 129-30. Instead, Justice Black held that Congress's power to supervise national

elections, U.S. Const., art. I, ?? 2, 4, justified the provision relating to federal elections, id.
at 119-24; Congress, however, has no such authority over state elections, thus rendering the
remainder of the provision unconstitutional, id. at 124-30. No other member of the Court

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766 COLUMBIA LAW REVIEW [Vol. 80:756

ion in Regents of the University of California v. Bakke,48 a case involving
the constitutionality of race-preferential school admissions programs, has
been regarded as the authoritative source of guidance by several lower

courts.49 Although under some definitions Justice Powell's opinion repre-

sents the "narrowest ground," most of the principles he espoused were

not clearly adopted by the other Justices hearing the case, and thus his
views cannot be considered authoritative.50 Bakke illustrates the ambiguity

of the term "narrowest grounds" and the resulting difficulty in applying

the narrowest grounds approach. For that part of the Court's decision
holding fixed quota systems illegal under title VI, Justice Powell's view
may be regarded as "narrower" than the view of Chief Justice Burger
and Justices Stevens, Stewart, and Rehnquist, which would prohibit any
racial preference in cases arising under title VI. The Stevens group, how-

ever, is "narrower" insofar as it rests on statutory, rather than constitu-

tional, grounds. With regard to the second issue in the case, involving
the constitutionality of some form of racial preference, Justice Powell's

view that some degree of racial preference is acceptable in certain situations is arguably narrower than the position of Justices Brennan, Marshall,

Blackmun, and White, who would approve the use of racial preferences in
a broader range of situations. Justice Powell's opinion, however, is also

broader than necessary to resolve the particular case, because he analyzed

accepted Justice Black's reasoning, but, because he was the key swing vote in different
5-(4) majorities sustaining the statute for federal elections and striking it down for state
elections, his isolated views dictated the result.
48. 438 U.S. 265 (1978).

49. See, e.g., Uzzell v. Friday, 591 F.2d 997 (4th Cir. 1979); Fullilove v. Kreps, 584
F.2d 600 (2d Cir. 1978), cert. granted, 441 U.S. 960 (1979); Morrow v. Dillard, 580 F.2d
1284 (5th Cir. 1978). But see K. Greenawalt, The Unresolved Problems of Reverse
Discrimination, 67 Calif. L. Rev. 87, 91-92 (1979).
50. In Bakke, the Court voted 5-4 to affirm that part of the lower court's judgment
ordering the Medical School at the University of California at Davis to admit Allan Bakke.
Also by a 5-4 vote, the Court declared the Davis admissions program, which reserved a
fixed number of spaces in each entering class for black students, illegal. Finally, it reversed
that part of the lower court judgment prohibiting any consideration of race whatsoever
in the admissions process. These results were supported by two different majorities, however,
with Justice Powell serving as the bridge between the two groups. Chief Justice Burger
and Justices Stevens, Stewart and Rehnquist declined to reach the constitutional question.
They decided the case on statutory grounds, arguing that title VI bars any form of racial
preference and mandates a "color-blind" policy. 438 U.S. at 408-21 (opinion of Stevens,
Stewart, and Rehnquist, JJ., and Burger, C.J.). Justices Brennan, Marshall, Blackmun, and
White, on the other hand, reached the constitutional issue because they regarded title VI
as coextensive with the equal protection clause. This group would have found virtually all
race-conscious admissions programs constitutional because they are designed to remedy the
unequal opportunity caused by past discrimination. Thus, they found that the rigid Davis
quota did not violate equal protection. Id. at 324-79 (opinion of Brennan, Marshall,
Blackmun, and White, JJ.).

Justice Powell agreed with the Brennan group that title VI is coextensive with the equal
protection clause, thus establishing a majority on this issue. Id. at 281-87 (opinion of
Powell, J.). His view on the constitutionality of race-conscious admissions programs fell
somewhere between the views of the Brennan group and those of the Stevens group. He
regarded rigid quota systems as unconstitutional but would have allowed certain types of racial
preference in appropriate circumstances. Id. at 287-320 (opinion of Powell, J.). Thus, in
future cases arising under title VI Justice Powell's vote should be determinative. Any
preferential program acceptable to him would clearly be acceptable to the Brennan group.

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1980]

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the merits of affirmative action admissions programs that were not before
the Court.

Although the narrowest grounds approach may be a useful tool in

interpreting certain types of plurality opinions, it is a doctrine of limited
applicability. It is only useful in those cases where the plurality and

concurring opinions stand in a "broader-narrower" relation to each other.

Many of the most troublesome plurality opinions, however, do not fit into
this mold, and lower courts have been left to their own devices to deter-

mine the precedential value of most plurality opinions.

II. OTHER APPROACHES TO INTERPRETING PLURALITY OPINIONS

In interpreting plurality opinions, lower courts have primarily looked

to the alignment of the Justices and the extent of agreement, the compatibility of different lines of reasoning, the persuasiveness of the various
rationales, and the relative stature of the opinion writers.

A. "Dual Majority" Cases

In some plurality decisions the concurring and dissenting opinions

share a common line of reasoning, but differ in their application of the

law to the facts. In such cases there are in effect two majorities: the
plurality and concurrence agreeing on the result, and the concurrence and

dissent agreeing on the fundamental legal principles involved.5l

A recent decision of this type is Arnett v. Kennedy,52 in which the

Court held by a 3-3-(3) vote that a nonprobationary government em-

ployee, employed under a statute authorizing removal only for cause, was
not constitutionally entitled to a trial-type evidentiary hearing prior to the
termination of his employment. The plurality reasoned that the substantive rights conferred by the statute were conditioned by the removal pro-

cedures specified within it. Under this analysis, constitutional standards

of due process were inapplicable, and all that was necessary to protect
the employee's rights was compliance with the statutory procedures.53 The

concurring Justices explicitly rejected the plurality view. They found instead that the statute created an expectation of continued employment that
amounted to a legally cognizable property interest under the fifth amendment, and thus could be terminated only in accordance with constitutional

standards of due process.54 They concluded, however, that the employment statute at issue, which provided for notice and an opportunity to

51. For a more detailed discussion of "dual majority" opinions see Chicago Comment,
supra note 2, at 115-24.
52. 416 U.S. 134 (1974).

53. Id. at 155 (opinion of Rehnquist and Stewart, JJ., and Burger, C.J.).
54. Id. at 167 (Powell and Blackmun, JJ., concurring); id. at 185 (White, J., concurring).

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768 COLUMBIA LAW REVIEW [Vol. 80:756

respond to the charges prior to discharge and for a full trial-type hearing

after discharge, did in fact satisfy due process requirements.55 The dissenters agreed with the concurring Justices that the statute conferred an
entitlement that could not be terminated without satisfying constitutional

standards of due process. They construed due process standards, however, to require a full hearing prior to discharge, and thus they found the
statutory procedures followed in Arnett's case unconstitutional.56
Arnett has engendered some confusion among lower courts and in the
Supreme Court itself, particularly when constitutional entitlements are

claimed under other employment statutes.57 Although some courts have

apparently followed the reasoning expressed in the plurality opinion,58

others have regarded as authoritative the view of the concurring and dissenting Justices that constitutional scrutiny of termination procedures is

required.59 This approach seems sound, since the notion that a plurality

opinion is inherently more authoritative than a dissenting opinion-presumably because the dissenting opinion does not support the result actually
reached-is not persuasive when the plurality's reasoning has been clearly
rejected by a majority of the Court. Similarly, the fact that the one line

of reasoning to garner a majority is supported by three Justices who dissented from the judgment should not undermine the precedential value of
that rationale. In this context, the technical alignment of the Justices is

irrelevant; what is important is the presence of agreement by an actual

majority of the Court.

Further scrutiny of the concurring and dissenting opinions is necessary, however, in order to determine the exact degree of constitutional due

process required after Arnett. To resolve this issue some courts have
resorted to the narrowest grounds approach, regarding the concurring

position that a post-termination hearing is sufficient as authoritative.60

This is in fact a choice of narrowest result, rather than narrowest reasoning, and, as in Gregg and Marks, reliance on the concurrence standard is

based on the assumption that the concurring Justices will cast the deter-

minative votes in future cases involving the constitutionality of termination procedures. It is important to remember, however, that the concurring position is still a minority one, because the plurality never addressed
the question of the procedures that would be required if constitutional
55. Id. at 171, 195-96.

56. Id. at 226-27 (Marshall, Douglas, and Brennan, JJ., dissenting).

57. See, e.g., Bishop v. Wood, 426 U.S. 341 (1976); Mazaleski v. Treusdell, 562 F.2d 701
(D.C. Cir. 1977); Mattern v. Weinberger, 519 F.2d 150 (3d Cir. 1975), vacated and

remanded, 425 U.S. 987 (1976).

58. See, e.g., Ring v. Schlesinger, 502 F.2d 479, 485-87 (D.C. Cir. 1974); Sexton v.
Kennedy, 523 F.2d 1311, 1314-15 (6th Cir. 1975), cert. denied, 425 U.S. 973 (1976).
59. See, e.g., Peacock v. Board of Regents, 510 F.2d 1324, 1328 (9th Cir. 1975), cert.
denied, 422 U.S. 1049 (1975); Lake Michigan College Fed'n of Teachers v. Lake Michigan
Community College, 518 F.2d 1091, 1095 (6th Cir. 1975), cert. denied, 427 U.S. 904 (1976);
Christie v. United States, 518 F.2d 584, 588-89 (Ct. Cl. 1975).
60. Peacock v. Board of Regents, 510 F.2d 1324 (9th Cir. 1975), cert. denied, 422
U.S. 1049 (1975).

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1980]

PLURALITY

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769

standards of due process were found applicable. It is possible that the

plurality would interpret due process to require a pre-termination hearing.

Choosing the concurrence standard as the authoritative one simply means

taking a compromise position based on the perhaps unwarranted assump-

tion that the Arnett plurality will always favor the least degree of due
process protection possible in such cases.

B. Citation for Specific Result and Disavowal

The "narrowest grounds" and "dual majority" approaches are both

means by which lower courts seek to extract the broader legal rule underlying a plurality decision. In many situations, however, the courts have

found it unnecessary or impossible to adhere to "rule" stare decisis by

divining legal principles. They have therefore resorted to "result" stare

decisis,6' confining the precedential value of a decision to its specific result and declining to regard any particular line of reasoning as authoritative.62 In rare instances courts have gone further and disavowed a

plurality decision entirely, thus reaching a different result on similar facts.63

Various factors may lead a lower court to take the "result" stare
decisis approach to applying plurality opinions. In certain types of cases,

for example, it is only the result itself that is critical for precedential purposes, and the particular line of reasoning used to arrive at that result
is not crucial for deciding future cases that raise the same issue. In

Glidden Co. v. Zdanok,64 for example, the Court decided by a vote of

3-2-(2) that the Court of Claims and the Court of Customs and Patent
Appeals were article III courts. The absence of a majority rationale in
support of this result has not undermined its precedential value.65 More

recently, in Cannon v. University of Chicago,66 the Court held by a vote

61. See the discussion of "rule" stare decisis and "result" stare decisis, note 10 supra.
62. When a decision is cited for its "specific result," it is regarded as obligating subsequent
courts to reach a similar outcome in a substantially identical fact situation. Under the
"specific result" approach, however, the broader legal principles supporting the result are

merely persuasive. See generally Hardisty, note 8 supra.

63. "Disavowal" of a prior decision essentially means confining that decision to its
particular facts and refusing to extend it to any subsequent case. The judgment is regarded
as binding only the parties to the immediate controversy, and as without precedential value
for future cases. Because disavowal runs counter to the values underlying adherence to a
system of precedent, courts will rarely explicitly disavow a prior decision. See generally
Lower Court Disavowal, supra note 5. The most important exception to the general practice
is the established rule that affirmances by an equally divided court are not authoritative for
future cases. See, e.g., United States v. Pink, 315 U.S. 203, 216 (1942).
64. 370 U.S. 530 (1962).

65. Lower courts considering the constitutional status of these courts have cited
Glidden for its specific result, finding it unnecessary to inquire into the different lines of
reasoning supporting that result. Juridical Cripples, supra note 5, at 62; see, e.g., O'Connor
v. Heritage, 306 F.2d 458 (5th Cir. 1962). The absence of a majority rationale, however,
does make the application of Glidden problematic in cases raising variations on the article
I-article III court controversy. Cf. Palmore v. United States, 411 U.S. 389, 404 (1973) (cites
plurality opinion in Glidden as persuasive in holding local D.C. courts validly created under
article I); Burns, Stix Friedman & Co. v. Commissioner, 57 I.C. 392, 399-400 (1971)
(relies on Glidden as support for holding that Tax Court is article I court; follows narrowest
grounds approach as well as attempting to discern discrete points of majority agreement).
66. 441 U.S. 677 (1979).

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770 COLUMBIA LAW REVIEW [Vol. 80:756

of 3-3-(3) that a woman who had been denied admission to medical
school could bring a civil rights suit for alleged sex discrimination under

title IX of the Education Amendments Act of 1972. Lower courts have

regarded Cannon's determination that title IX impliedly creates a private right of action as authoritative, even though the Court reached this
result on the basis of several different rationales.67

What Glidden and Cannon have in common, and what makes them
amenable to the specific result approach, is that they involve threshold

issues, such as a party's right to be in court and the type of judicial pro-

ceeding required, rather than more individualized determinations of the

substantive merits of a claim. These cases, which involved areas of law
that may be characterized as "procedural," yielded specific results that
were not dependent on or limited to individual factual circumstances. The
results can thus stand as independent rules of decision for subsequent
cases. On the other hand, cases involving individual claims of constitu-

tional right, such as Arnett, are more likely to produce results that cannot be divorced from the underlying reasoning on the issue of entitlement.

Thus, the reasoning underlying the result is less important in the former
class of cases than in the latter group, where the analytical underpinnings
of each decision may have profound implications for subsequent decisions
in many areas of the law.

Lower courts may also choose citation for specific result not because

they regard the reasoning as unimportant for precedential purposes, but

simply because they find it impossible to discern a coherent majority ra-

tionale. One example of a plurality decision that seems to defy all

reasoned attempts at interpretation is National Mutual Insurance Co. v.
Tidewater Transfer Co.,68 a 3-2-(2)-(2) decision upholding a statute conferring federal diversity jurisdiction over actions between citizens of the
District of Columbia and citizens of other states.69

The statute was upheld through a combination of two minority ra-

tionales, each of which was rejected by a majority of the Justices.70

67. See, e.g., NAACP v. Medical Center, Inc., 599 F.2d 1247, 1256-57 (3d Cir. 1979);
Clark v. Louisa County School Bd., 472 F. Supp. 321 (E.D. Va. 1979); National Super
Spuds, Inc. v. New York Mercantile Exch., 470 F. Supp. 1256, 1262 (S.D.N.Y. 1979).
The rationales in Cannon are relevant for resolving the question of implication under
other statutes. Cf. Siegel, The Implication Doctrine and the Foreign Corrupt Practices Act,
79 Colum. L. Rev. 1085, 1088-1104 (1979) (discussing Cannon's effect on the implication

doctrine generally).
68. 337 U.S. 582 (1949).
69. 28 U.S.C.A. ? 1332 (1949).

70. The three Justices in the plurality reasoned that although the District of Columbia
was not a "state" within the meaning of article III for purposes of diversity jurisdiction, the
statute was a constitutional exercise of Congress's power under article I, section 17, to legislate

for the District of Columbia. 337 U.S. 582, 604 (opinion of Jackson, Black, and Burton,

JJ.). The concurring Justices, flatly rejecting this invocation of legislative jurisdiction under
article I, upheld the statute on the ground that cases defining the word "state" in article III
to exclude the District of Columbia were wrongly decided and should be overruled. Id. at
604 (Rutledge and Murphy, JJ., concurring). There were two separate dissenting opinions,
and each essentially repudiated both of these rationales and would have found the statute

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1980]

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Courts have taken a variety of approaches to the interpretation and ap-

plication of Tidewater. Some courts have regarded the specific result of

Tidewater as controlling in future cases presenting similar facts, without

worrying about the rationale.7' At least one court has disavowed the
decision entirely as precedent for future cases.72
There seems to be no easy way to extract any coherent precedential
principles from a case like Tidewater. Total disavowal of the decision
does not seem advisable, since the Supreme Court would presumably de-

cide similar cases in a similar fashion in the future. On the other hand,

there is no basis for according one of two minority rationales, each rejected by a majority of the Justices, controlling weight. Despite the

absence of a principled majority rationale, however, considerations of

uniformity and predictability militate in favor of adherence to "result"

stare decisis. Where, as in Tidewater, there is clear agreement on the

specific result, that result should be regarded as binding on the lower
courts, regardless of whether any rationale can fairly be considered authoritative.

Yet another situation in which citation for specific result may be the
only interpretive option for lower courts arises when the Court is equally

divided on the broader legal principles underlying a particular holding.

A particularly troublesome case of this type is Gosa v. Mayden,3 a

4-1-1-(3) decision involving the retroactivity of the holding in O'Callahan

unconstitutional. Id. at 626 (Douglas, J., and Vinson, C.J., dissenting); id. at 644 (Frankfurter
and Reed, JJ., dissenting).

Justice Frankfurter noted this anomalous result in his dissenting opinion:

A substantial majority of the Court agrees that each of the two grounds urged
in support of the attempt by Congress to extend diversity jurisdiction to cases
involving citizens of the District of Columbia must be rejected-but not the same
majority. And so, conflicting minorities in combination bring to pass a resultparadoxical as it may appear-which differing majorities of the Court find insupportable.
Id. at 655.

71. One such court suggested, not without a touch of irony, that 'the conclusion to be

drawn from [Tidewater] is that precedent is established by the votes of the justices, not by
the reasons given for their votes." Greene v. Teffeteller, 90 F. Supp. 387, 388 (E.D. Tenn.
1950).

72. Detres v. Lions Building Corp., 136 F. Supp. 699 (N.D. Ill. 1955), rev'd, 234 F.2d

596 (5th Cir. 1956).

Detres presented the issue of whether the same statute conferred diversity jurisdiction
over an action between a citizen of Puerto Rico and citizens of a state. The district court
indicated that Tidewater had not "put the issue of the statute's constitutionality to rest,"
and concluded that "[p]robably the most that the Tidewater case settled was that for purposes
of that proceeding a citizen of the District of Columbia could maintain" a diversity action
in the federal courts. 136 F. Supp. at 705. The court of appeals in Detres rejected the
district court's disavowal of Tidewater, however. 234 F.2d at 603. But, by applying Tidewater
to a case involving citizens of Puerto Rico, this court was extending its precedential effect
to a case that was at least arguably distinguishable. Rather than analyzing any distinctions
between the District of Columbia and Puerto Rico, the court of appeals based its decision
on the analysis of Tidewater in Siegmund v. General Commodities Corp., 175 F.2d 952 (9th
Cir. 1949). In this case the ninth circuit interpreted Tideivater as conferring jurisdiction
over suits involving citizens of the territory of Hawaii, apparently finding that both the

plurality and concurring rationales were somehow applicable to cases involving territories.
73. 413 U.S. 665 (1973).

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772 COLUMBIA LAW REVIEW [Vol. 80:756

v. Parker,74 which severely restricted the jurisdiction of courts-martial over

military personnel charged with offenses that there were not "service-con-

nected." The petitioner in Gosa had committed such an offense prior to

the ruling in O'Callahan, but once it came down he challenged the military
court's authority to try him.

Six Justices agreed on the specific result that O'Callahan should not be
applied to the facts of Gosa, but they reached this result on the basis of three
distinct rationales.75 On the issue of O'Callahan's retroactivity, however, the
Court was equally divided: the four plurality Justices found it not to be
retroactive; Justice Rehnquist voted for the plurality result because he thought
O'Callahan was wrongly decided, but he was aligned with the three dissenters
in favor of retroactivity; and Justice Douglas did not deal with the retro-

activity issue.
Gosa has caused considerable confusion among the lower courts. Some

courts have recognized that it does not provide a determinative ruling on the
retroactivity issue, and have looked to other precedents in the area 76 or have
simply adopted the rationale deemed most convincing.77 No court has directly
contradicted the result in Gosa by according O'Callahan retroactive effect.
At least one court has relied on Gosa as a purported precedent for a rule of

decision that can be divorced from the underlying reasoning on the retro-

activity issue.78 This court, in deciding not to apply O'Callahan retroactively,

concluded that it was "immaterial that less than a majority of the Court
upheld the legal proposition that O'Callahan should not be applied retro-

actively"; it was dispositive that "a majority voted that O'Callahan should
not control cases like the present one." 79
It seems somewhat disingenuous to recognize that Gosa failed to uphold

the "legal proposition" that O'Callahan should not be applied retroactively,

and in the same breath to indicate that Gosa authoritatively determines that
O'Callahan should not be applied to pre-O'Callahan cases. The question

74. 395 U.S. 258 (1969).

75. Four Justices in Gosa held that O'Callahan should not apply because the decision
had no retroactive effect. 413 U.S. 685 (opinion of Blackmun, White, and Powell, J.J., and
Burger, C.J.). The dissenters argued that O'Callahan should apply retroactively and they
would have found as a result that the exercise of nilitary jurisdiction over Gosa had been
improper. Id. at 700 (Stewart, Marshall, and Brennan, JJ., dissenting). Justice Rehnquist
concurred in the plurality judgment not to apply O'Callahan, but he did so on the ground
that the case had been wrongly decided and should be overruled. He clearly indicated,
however, that if O'Callahan was valid, it should be given retroactive effect. Id. at 692
(Rehnquist, J., concurring). Justice Douglas concurred separately on a theory entirely
unrelated to the retroactivity issue. He suggested that res judicata barred petitioner's right
to contest the jurisdiction of the military court because he had failed to object in timely
fashion. Id. at 691 (Douglas, J., concurring).
76. See, e.g., Brown v. United States, 508 F.2d 618 (3d Cir. 1974). Cf. id. at 636
("While the precise application of Gosa ... is uncertain, [its] result.. . is manifest. Based on
considerations either of non-retroactivity or res judicata, a majority of the Supreme Court held
that Gosa would remain in prison despite the constitutional shortcomings of his court-martial.")
(Adams, J., concurring).

77. See, e.g., Lichtenstein v. Schlesinger, 495 F.2d 1382 (9th Cir. 1974).
78. Augenblick v. United States, 509 F.2d 1157 (Ct. Cl. 1975).
79. Id. at 1159 (citing Glidden and Tidewater).

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19801 PLURALITY OPINIONS 773

confronting lower courts is essentially whether or not to apply O'Callahan
retroactively, no matter how they phrase the issue. In resolving this question,
the Court's basic division is an inescapable fact. True stability and clarity

in this area will not be achieved until the question of O'Callahan's validity is
disentangled from the question of whether, unless and until it is overruled,
it requires retroactive application. Thus, it seems advisable to view Gosa as

failing to establish any general rule that must control future cases. Lower
courts should use their discretion in dealing with such cases until the Supreme
Court provides a true resolution of the retroactivity issue. This approach

would better serve the goals of certainty and reliability in the long run than
attempts to build enduring legal principles an the basis of an illusory consensus.

It is rare for a lower court, faced with a plurality decision presenting

clear majority agreement on the result, to choose instead to follow the dis-

senting rationale and come to a contradictory result on similar facts. Such

total disavowal was attempted by a state court 80 in its treatment of the
plurality decision in United States v. Jorn.81 Jorn, a 4-2-(3) decision, held

that the double jeopardy clause prohibited reprosecution following a mistrial

declared sua sponte by the judge without the defendant's consent.82 In State
v. Baker, a Maryland court faced with essentially the identical issue concluded

that because there was no "opinion of the Court," the various opinions in
Jorn were of persuasive value only.83 After an independent scrutiny of those

opinions, the court concluded that the dissenters' analysis was the most con-

vincing and accordingly dismissed the defendant's double jeopardy claim.

A Federal district court subsequently granted habeas corpus relief to the
defendant,84 criticizing the Baker court for adopting a position clearly con80. State v. Baker, 15 Md. App. 73, 289 A.2d 348 (1972).
81. 400 U.S. 470 (1971).

82. The six Justices supporting this specific result did so on the basis of two separate
rationales. The plurality reasoned that in the absence of "manifest necessity" to declare a
mistrial, the trial judge's actions amounted to an abuse of discretion and double jeopardy
would attach. Id. at 487 (opinion of Harlan, Douglas, and Marshall, JJ., and Burger, C.J.).
The concurrence reasoned that the trial judge's actions amounted to an acquittal of the
appellee, so that the Court lacked jurisdiction to hear the case; but in view of the majority's

decision to reach the merits, the concurring Justices elected to join in the judgment. Id. at
488 (Black and Brennan, JJ., concurring). The dissenters argued that a showing of prejudice
to the accused was necessary in order to invoke double jeopardy. Id. at 492. (Stewart, White,
and Blackmun, JJ., dissenting).
83. State v. Baker, 15 Md. App. at 82, 289 A.2d at 353-54.
84. Whitfield v. Warden, 355 F. Supp. 972 (1973), rev'd on related grounds, 486 F.2d
1119 (4th Cir. 1973). After examining the Maryland court's interpretation of Jorn, the
federal court declined to rule on the question of "[w]hether that construction of the effect
of a plurality opinion is a construction which a state court is free to adopt in general, or may
adopt with regard to Jorn ...." 355 F. Supp. at 976. After indicating that it was bound by

fourth circuit precedents assigning controlling weight to the plurality opinion, however, the
court went on to criticize the Baker court's approach:
While in Jorn, Mr. Justices Black and Brennan joined only the "judgment
of the Court," they stated that the action of the trial judge amounted to an
acquittal of appellee," and thus clearly rejected the Jorn dissenters' approval of the
trial judge's actions. . . . Thus, six of nine Justices who sat in Jorn disagreed
with the dissenting views of Mr. Justice Stewart which Judge Orth elected to follow
in denying Whitfield's appeal.
355 F. Supp. at 976-77.

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774 COLUMBIA LAW REVIEW [Vol. 80:756

trary to that adopted by six of the Justices. The criticism seems apt. While
the Baker court was arguably correct in refusing to give the rationales ex-

pressed in either the plurality opinion or the concurring opinion controlling

weight, since neither rationale received majority support, six Justices in Jorn

did agree on the specific result that double jeopardy barred reprosecution
under similar facts. In light of this consensus, the Baker court should not
have embraced a rationale that led to a contrary result.
C. Adopting One Opinion as Authoritative
In some instances, lower courts have regarded as authoritative a rule
of decision that has not received majority support, perhaps because the opinion is particularly persuasive or is written by a prestigious Justice. Some-

times, however, there is no apparent justification for choosing one rationale

over another other than the fact that it was contained in the plurality opinion.
An example is the treatment by lower courts of the "inadvertence" requirement for evidence obtained through warrantless searches endorsed by a four-

Justice plurality in Coolidge v. New Hampshire.85 Even though the requirement did not command majority support, it has generally been regarded as
authoritative.86 Courts have divided, however, as to the proper scope and
application of the doctrine. Some have simply cited Coolidge as authority
for the inadvertence requirement without recognizing that there was no ma-

jority to support it.87 Other courts have explicitly noted the lack of majority
support for the rule but have nonetheless felt constrained to apply it.88 Ap-

parently only one court 89 has expressly declined to follow the inadvertence
85.

403

U.S.

443

(1971).

The Court voted 5-(4) to reverse a conviction on the ground that it was based on
evidence seized without a warrant in violation of the fourth amendment. In explaining why
the evidence did not fall within the "plain view" exception to the warrant requirement,
Justice Stewart, writing for himself and three other Justices, stated that the plain view
doctrine applied only when the discovery of the evidence was "inadvertent"; that is, when
the police had not expected to discover the evidence. 403 U.S. at 464-73 (opinion of Stewart,
J., joined by Douglas, Brennan, and Marshall, JJ.). This qualification of the plain view
doctrine was not accepted by Justice Harlan, who concurred in certain portions of Justice
Stewart's opinion and in the judgment. The inadvertence requirement was expressly rejected
in the concurring and dissenting opinions of the four remaining Justices.
86. It is interesting to note that the dissenting Justices in Coolidge at various points
referred to the plurality's inadvertence requirement as the "majority" rule. See, e.g., 403 U.S.
at 508 (Black, J., dissenting), 518 (White, J., dissenting).
87. See, e.g., United States v. Berenguer, 562 F.2d 206 (2d Cir. 1977); United States v.
Cushnie, 488 F.2d 81 (5th Cir. 1973).
Lower courts that have adopted the inadvertence requirement may have relied on the
fact that the rule was contained in an opinion labelled the "Opinion of the Court," even though
that opinion was subscribed to by only four Justices. Such reliance is misguided, however; a
rule supported by a plurality of four Justices is still a minority rule, and thus should not be
considered authoritative.

88. In United States v. Liberti, No. 79-1127 (2d Cir. Jan. 25, 1980), the Court relied on
a somewhat strained interpretation of the inadvertence requirement, indicating that a discovery
is "inadvertent" when the police lack probable cause to search for and seize the items.
Judge Newman, concurring in the result, suggested that in view of the "uncertain status" of

the inadvertence requirement, he would not "deem it the law of the land" and would decide
the case on other grounds. Slip op. at 5938. See also United States v. Griffith, 537 F.2d 900
(7th.Cir. 1976); United States v. Gray, 484 F.2d 352 (6th Cir. 1973).

89. United States v. Bradshaw, 490 F.2d 1097 (4th Cir. 1974), cert. denied, 419 U.S.

895 (1974).

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1980]

PLURALITY

OPINIONS

775

rule, resting a decision of inadmissibility on other grounds. In doing so, this

court stressed the "uncertain status" of the rule and noted that recent changes
in the composition of the Court might result in a new majority opposed to it.90
In some plurality decisions, one or two Justices write concurring opinions that purport to interpret or limit the absolute implications of the lead

opinion. Some lower courts have looked to the reasoning of these self-pro-

claimed interpreters of the court as authoritative guidance for future cases.

They may find these opinions, which often explain and clarify the Court's
decision, easier to apply, or they may find the concurring rationale more

persuasive or more compatible with precedent. In Branzburg v. Hayes,9,

for example, Justice Powell was the "swing" Justice who offered a clarifying
interpretation of the main opinion. In Branzburg the Court decided by a

4-1-(4) vote 92 that the first amendment does not protect newsmen from
revealing to a grand jury information gathered from confidential sources.
Justice Powell joined the majority opinion, but he also wrote a brief
concurring opinion reiterating the majority's good faith test requiring reporters claiming privilege to demonstrate that a grand jury investigation was
conducted in bad faith.93 Justice Powell's interpretation made the test appear more liberal than the majority formulation. He argued that the stand-

ard actually left the Court "free to balance the competing interests on their

merits in the particular case." 94 This formulation seems to afford broader

90. 490 F.2d at 1101 n.3. It is interesting to compare the treatment of the inadvertence
requirement with the treatment accorded to the rule espoused by four Justices in the plurality
decision in Frontiero v. Richardson, 411 U.S. 677 (1973), that sex should be a suspect classification for purposes of equal protection analysis. The Court decided by a vote of 4-1-3-(1)
that a statute automatically treating spouses of male members of the uniformed services as
"dependents" for purposes of certain benefits while regarding spouses of female members as
not dependent unless they can prove dependence for more than one-half of their support,
violated the fifth amendment. The alignment of the Justices in Frontiero was substantially
identical to the alignment in Coolidge: the four-Justice plurality (Brennan, joined by Douglas,
Marshall and White) indicated that sex should be regarded as a suspect classification, 411 U.S.
at 682-91. One Justice concurred in the judgment but expressed no view on whether sex

constituted a suspect class. Id. at 691 (Stewart, J., concurring). Three Justices concurred
in the judgment but concluded that, since the equal rights amendment was awaiting ratification

by the states, it was inappropriate to decide the suLspect class issue at this time. Id. at 691-92
(Powell and Blackman, JJ., and Burger, C.J., concurring). Justice Rehnquist dissented from
the judgment. Id at 691.

Neither the Supreme Court itself nor the lower courts have regarded the plurality's
"suspect classification" analysis as the governing standard in gender-discrimination cases, since
that analysis was accepted by only four Justices. See, e.g., Craig v. Boren, 429 U.S. 190
(1976); Stanton v. Stanton, 421 U.S. 7, 13 (1975); Schlesinger v. Ballard, 419 U.S. 498, 511
(1975); Alma Soc'y Inc. v. Mellon, 601 F.2d 1225, 1234 (2d Cir. 1979). The ready acceptance
of Coolidge's inadvertence requirement is therefore especially surprising.
91. 408 U.S. 665 (1972).

92. Although technically a routine majority decision, Justice Powell's restatement of the
lead opinion makes this case analytically similar to no-clear-majority decisions.
93. The majority opinion indicated that newsmen's claims of privilege should be decided
under a good faith test. This test would permit a reporter to obtain a protective court order
limiting grand jury questioning only when he can show that a grand jury investigation is being
conducted not to serve a legitimate law enforcement need, but in bad faith or for the purpose
of disrupting his relations with his confidential sources. Absent such a showing, the majority
believed that the "consequential, but uncertain, burden on news gathering" created by com-

pelling reporters to testify before a grand jury was outweighed by the public interest in the
grand jury's role in "[flair and effective law enforcement." 408 U.S. at 690.
94. Id. at 710. Justice Powell also expanded the scope of the good faith standard to
allow newsmen to seek motions to quash or protective orders whenever "called upon to give

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776 COLUMBIA LAW REVIEW [Vol. 80:756

opportunities for newsmen to obtain judicial protection from grand jury investigations than the majority standard.95 Lower courts trying to apply
Branzburg in subsequent cases have generally relied on the Powell concur-

rence.96 One reason for doing so may be that Justice Powell's rule of decision is "narrower" than the standard promulgated by the majority, and thus
his vote would be the key one for future decisions involving the same issue.97
This approach, however, gives authoritative effect to a rationale that represents the views of only a single Justice. The other reason for relying on
Justice Powell's opinion may be that lower courts perceive his statement as
not proposing a standard different and independent from that proposed by
the majority, but as simply restating and explaining the majority viewY98 This
perception is based in part on the fact that Powell justified his statement in
these terms.99
In National League of Cities v. Usery 100 a single concurring Justice was

again able to restrict the scope of a decision through the device of "interpreting" it. In this case the Court decided by a 4-1-(4) vote that the 1974
amendments to the Fair Labor Standards Act extending minimum wage provisions to nearly all state and local government employees were unconstitutional.101 In the plurality opinion, four Justices held that the provisions
would transgress tenth amendment limitations on the commerce power. This

opinion suggested a rule that any congressional regulation based on the

commerce clause must be overturned if it operates "to directly displace the
States' freedom to structure integral operations in areas of traditional govern-

mental functions.'02 Justice Blackmun wrote a concurring opinion offering

a different interpretation of the plurality view. He expressed his understanding that the Court's opinion adopted a balancing test, under which Congress

may regulate traditional state activities if regulation is essential to protect a

information bearing only a remote and tenuous relationship to the subject of the investigation ...." Id.

95. In cases where a newsman can prove the "remote and tenuous relationship" but
cannot demonstrate bad faith, it is conceivable that Justice Powell might break with the
majority.

96. See, e.g., Riley v. City of Chester, 612 F.2d 708, 715-16 (3d Cir. 1979); Reporters'
Comm. for Freedom of the Press v. American Tel. & Tel. Co., 593 F.2d 1030 (D.C. Cir. 1978),
cert. denied, 440 U.S. 949 (1979); Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978); United
States v. Schiavo, 504 F.2d 1 (3d Cir.), cert. denied, 419 U.S. 1096 (1974); Carey v. Hume,
492 F.2d 631 (D.C. Cir.), cert. denied, 417 U.S. 938 (1974).
97. See, e.g., United States v. Liddy, 478 F.2d 586, 586-87 (D.C. Cir. 1972) ("the

Branzbuirg decision is controlled in the last analysis by the concurring opinion of Justice

Powell . . . as the fifth Justice of the majority." Powell's balancing test "does not require a
demonstration of either total lack of legitimacy or utter lack of any possible need, for it may
be raised on a claim that the information desired of the newsman has only a 'remote' relationship to the subject of the investigation.").
98. See, e.g., In re Possible Violations of 18 U.S.C. ?? 371, 641, 1503, 564 F.2d 567, 571
(D.C. Cir. 1977) (citing Powell's concurrence as controlling because it "emphasize[s]" and
"elaborate[s]" the majority opinion).
99. "I add this brief statement to emphasize what seems to me to be the limited nature
of the Court's holding." 408 U.S. at 709 (Powell, J., concurring).
100. 426 U.S. 833 (1976).
101. Id. at 852.
102. Id.

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1980] PLURALITY OPINIONS 777

federal interest that is demonstrably greater than the state's interest.103 Jus-

tice Blackmun added a caveat that he might be "misinterpreting" the Court's

opinion.'04 This statement, however, seems a bit disingenuous; because of
his key voting position, it is difficult to escape the conclusion that Justice
Blackmun intended to limit significantly the scope of the lead opinion while
purporting to interpret it.105

On the assumption that Justice Blackmun's vote will be determinative

in subsequent litigation involving Congress's authority to regulate state
activities, lower courts have accepted his "interpretation" as authoritative.'06
Accordingly, they have cited National League of Cities for the rule that when
a federal commerce regulation supplants a state's policy choice affecting the
structure of its governmental activities, balancing of state and federal interests is required to determine the regulation's constitutionality.

In some instances lower courts have regarded the opinion of a single

Justice as authoritative not because it interprets the lead opinion, but because
the particular Justice enjoys special status in the eyes of the profession or
the general public. It is rare for a court to admit overtly that it is taking
such an approach.'07 Nonetheless, considerations of a Justice's prestige
may, consciously or unconsciously, influence a court's interpretation of a
particular decision.

Acceptance of the most prestigious Justice's opinion as authoritative

may be particularly tempting when a court is confronted with a plurality

decision that lacks a coherent majority rationale.'08 Thus, in interpreting
Glidden Co. v. Zdanok 109 other courts, including the Supreme Court, have
generally cited Justice Harlan's opinion, although it was joined by only two

103. Id. at 856 (Blackmun, J., concurring).

104. Id.
105. The only possible justification for Justice Blackmun's interpretation is that he was
attempting to reconcile the National League of Cities decision with the earlier case of
Fry v. United States, 421 U.S. 542 (1975), which held that Congress had power under the
commerce clause to include state employees within the national wage freeze authorized by the
1970 Economic Stabilization Act.
106. See, e.g., Peel v. Florida Dep't of Transportation, 600 F.2d 1070, 1084 (5th Cir.
1979); Public Service Co. of N. Carolina v. Federal Energy Regulatory Comm'n, 587 F.2d
716, 721 (5th Cir. 1979); Philadelphia v. SEC, 434 F. Supp. 281, 288 n.6 (E.D. Pa. 1977),
appeal dismissed, 434 U.S. 1003 (1978); Usery v. Dallas Independent School Dist., 421 F.
Supp. 111, 116 (N.D. Texas 1976).
107. But see Doe v. Commonwealth's Att'y for City of Richmond, 403 F. Supp. 1199
(E.D. Va. 1975), aff'd, 425 U.S. 901 (1976), where the court interpreted Griswold v. Connecticut. 381 U.S. 479 (1965), by relying on Justice Harlan's dissent in Poe v. Ullman, 367
U.S. 497, 533 (1961): "At all events, the Justice's exegesis is that of a jurist of widely
acknowledged superior stature and weighty whatever its context. With his standing, what he
had further to say in Poe v. Ullmann . . . is worthy of high regard." 403 F. Supp. at 1201.
108. One lower court, after acknowledging the general validity of according special
weight to the opinions of particularly eminent judges or Justices, also recognized one of the
weaknesses of such an approach: "The opinion in Strika is entitled to more than usual
weight, as having behind it the authority of a great judge. But even Homer nods, and the
quoted passage, on which the opinion rests, is no less a non sequitur because it seemed convincing to Judge Hand." Gebhard v. S.S. Hawaiian Legislator, 425 F.2d 1303, 1316 (9th
Cir. 1970).
109. 370 U.S. 530 (1962), discussed at notes 64-65 and accompanying text supra.

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778 COLUMBIA LAW REVIEW [Vol. 80:756

other members of the Court."10 No doubt this approach is taken not only
because Justice Harlan was a jurist of great prestige and intellectual repute,
but also because his opinion was a scholarly and comprehensive work.
On balance, however, allowing considerations of a Justice's prestige to
determine the precedential value of a decision is clearly undesirable. Such

an approach, resting on subjective considerations, may promote uncertainty

and inconsistency, especially since assessments of a Justice's abilities may
vary over time. Moreover, a Justice's general reputation does not guarantee
that any given opinion that he writes is sound or inherently better than the

reasoning of another Justice. The merits of a particular opinion must be

evaluated independently of the writer's other work.

The fundamental problem with the "prestigious Justice" approach is

that it focuses on the opinion-writer rather than the opinion, and thus is

inconsistent with the values of reliability and uniformity underlying our legal

system. The views of a single Justice, no matter how persuasive his reasoning or exalted his reputation, cannot be authoritative in our precedential
system unless they receive the support of a majority of the Court.

III. NORMATIVE STANDARDS FOR INTERPRETING PLURALITY OPINIONS

The practical effect of plurality decisions is to give the lower courts

increased discretion in analyzing and applying precedent, and a more respon-

sible role in developing the law.11' Whether such a reallocation of responsibility is desirable is open to debate; 112 but so long as the number of plurality
decisions continues to rise, it is imperative for lower courts to develop a
principled and effective method for handling such decisions.

110. E.g., Palmore v. United States, 411 U.S. 389, 405-06 & n.13 (1973); Wiren v. Eide,
542 F.2d 757, 765-66 n.10 (9th Cir. 1976); United States v. Montanez, 371 F.2d 79, 82
(2d Cir. 1967); United States v. Allocco, 305 F.2d 704, 706 (2d Cir. 1962).
111. The general trend toward increased lower court discretion is documented in Lower
Court Disavowal, supra note 5. The traditional dogma was that lower courts were bound by
the literal reading of any decision on point. Thus, any more complex evaluation of the value
of precedents, such as attempts to distill a common principle from conflicting opinions, was
seen to extend undue discretion to the lower courts. Id. at 496. As another scholar has

pointed out, however, the problems of interpretation and application presented by plurality
opinions are not qualitatively different from the problems posed by ordinary majority decisions:
Just as mixed problems of language and political compromise permit and sometimes force judges to make their own policy choices in interpreting statutes, semantic
difficulties and opinion compromises within the Supreme Court often allow or require
the exercise of lower court discretion. In addition, even where the Court has spoken
precisely on general principles of law, the work of applying these principles to new
and complex situations of muddled evidence and tangled pleadings may demand
ingenuity, imagination, and the insertion of value preferences which may not conform
to those of the Justices.

W. Murphy, Elements of Judicial Strategy 24 (1964).

112. The advantages of giving lower courts more leeway to act as intermediaries between
the Supreme Court and the public, and to draw on their own sense of justice to meet changing
times and conditions must, of course, be balanced against the needs of the bench, bar, and
general public for stability and clarity in legal reasoning. These values are not absolutes,

however, and their relative importance in a given situation depends on a number of factors,

including the particular area of law involved. See notes 63-68 and accompanying text supra.

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1980] PLURALITY OPINIONS 779

The foregoing discussion demonstrates the difficulty of laying down hard
and fast interpretive rules that will be applicable to the many different types

of plurality decisions and the myriad legal and factual settings in which they
arise. How a particular decision should be handled depends on a variety of
factors, including the precise nature of the issues presented and their relation

to the broader area of law involved, the alignment of the Justices on a

particular issue, the interrelationship between the various rationales suggested, and the degree to which a subsequent case is legally or factually
distinguishable.

The underlying concern in any approach to plurality decisions is how

to effect the optimal balance between two sets of often contradictory values.
The goals of certainty, unifolrmity, fairness, and efficiency imply a need for
clear Supreme Court guidance. On the other hand, judicial freedom and
flexibility are necessary for the development of well-reasoned, enduring legal
principles. The first set of considerations militates in favor of relatively
strict adherence to precedent, while the latter set affords lower courts considerably more leeway to minimize or even to disregard entirely the precedential value of any plurality decision striking the judge as inherently or
technically weak.

In seeking to harmonize these competing values, it seems clear that

lower courts must adhere at the minimum to the principle of "result" stare
decisis,'13 which mandates that any specific result espoused by a clear majority of the Court should be controlling in substantially identical cases. The
absence of a clear majority rationale supporting the result may give a lower
court some flexibility to formulate a justifying rule. It does not, however,
justify a court in embracing a line of reasoning that will lead to a contrary
result, as the Baker court attempted to do by adopting the position of the
dissenting Justices in Jorn. Adherence to "result" stare decisis is essential
if principles of certainty and uniformity are to have any meaning at all; our
system of precedent would break down entirely if lower courts were free
to disregard a clear majority result and emerge with different results on
similar facts. The potential rigors of such adherence to precedent are
mitigated by the possibility of distinguishing subsequent cases, a practice
that is no different in the context of plurality decisions than in the context
of ordinary majority decisions.

Interpretation and application of the reasoning contained in a plurality

decision, as opposed to its result, present considerably more complex
questions. For the same reasons numbers are decisive to determine the
precedential effect of results, numbers should control the weight assigned
to reasoning as well. Thus, any line of reasoning that has the support
of a clear majority of the Court should be regarded as authoritative, even

if that reasoning does not seem convincing to a lower court. By the same
principle, a minority rationale, however persuasive it may appear, should
113. See note 10 supra.

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780 COLUMBIA LAW REVIEW [Vol. 80:756

not be regarded as having the force of law. There is no justification, for
example, for construing the decision in Gosa as an authoritative resolution

of the retroactivity issue, since the Justices were equally divided. Similarly,
there is no justification for regarding the "inadvertence" doctrine espoused
by the four-Justice plurality in Coolidge as a binding rule of law.

To the extent that numbers may take precedence over logic or persuasiveness, this is the inevitable result of a legal system resting on the

premise that any rule promulgated by a majority of the Supreme Court is

the law of the land. This principle of majority rule, however, assumes the
existence of genuine majority agreement, and is reduced to a mere sham

when that "agreement" takes the form of a purely superficial or strained

consensus. Reliance on an illusory consensus like that in Gosa undermines
the integrity of our judicial system. Moreover it does not promote the
goals of certainty and efficiency, because the Supreme Court Justices are

themselves more likely to disregard or depart from prior decisions that did
not receive the thorough and unequivocal support of a majority.
The reasoning in plurality decisions is often confusing, and apparent
agreement on certain points may obscure the existence of disagreement on
others.'14 Identifying the areas of genuine majority agreement in such
decisions can be especially difficult, making the temptation to look for an

easy, automatic interpretive solution particularly strong. In seeking to

extract meaningful guidance from plurality decisions, however, lower courts
have the responsibility to look beneath the surface of the various opinions

in order to determine which lines of reasoning, if any, reflect the views

of a majority. In doing so, however, they should be wary of approaches

that automatically view the reasoning contained in the plurality opinion,
or the rationale endorsed by the most prestigious Justice, or any other
minority rationale, as authoritative.
The technique best serving the goals of certainty and reliability will

depend upon the nature of the particular plurality decision involved. In

a "dual majority" case like Arnett, for example, the lower court may need
to analyze the reasoning contained in a dissenting opinion, even though
that opinion would not be authoritative for a specific result. In a case like
Bakke, painstaking scrutiny of each opinion is required in order to isolate

the discrete points of majority agreement buried within the individual

analyses. A court may find, as in Tidewater, that a decision is based on
independent and essentially contradictory minority rationales; or, as in Gosa,

that the Court is equally divided on the underlying reasoning. In such

cases, there is simply no area of majority reasoning that can safely be
followed in future cases.

114. See, e.g., University of California Board of Regents v. Bakke, 438 U.S. 265 (1978).

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1980] PLURALITY OPINIONS 781

CONCLUSION

Rather than looking at plurality opinions as an abdication of the

Supreme Court's judicial function, it seems more profitable to regard such
decisions as admissions of uncertainty and, in a sense, a call for help to
the lower courts. The insight and experience of lower court judges, and
the opportunity to gain more information through feedback from the bench,
bar, and general public, may be invaluable resources for the Supreme
Court to draw upon in confronting complex and uncertain areas of the law.
By adopting an approach to plurality opinions that takes account of the
values of our precedential system and the importance of actual, discrete
points of majority agreement, lower courts can contribute to the formulation
of legal principles that can be practically applied and can withstand in-

tellectual scrutiny. Approached in this manner, plurality decisions may

provide a sound base for the future development of the law.
Linda Novak

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