Marks v. United States, 430 U.S. 188 (1977), establishes the test for determining what the “holding” of the Court is when the votes are splintered:
When a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.
Id. at 193. So what happens when votes supporting a proposition of law are supplied by dissents?
This is not simply a matter of academic concern. A majority of the Justices concluded in NFIB v. Sebelius that the Individual Mandate exceeded Congress’s Commerce Clause powers and the same group (plus Justices Breyer and Kagan) concluded that the Medicaid expansion violated Congress’s Spending Clause authority. But four of those votes, necessary to compose a majority, did not “concur in the judgment”—they dissented. (The same question arises in determining the “holding” of Williams v. Illinois, where—as Justice Kagan herself noted—five Members of the Court rejected the plurality’s reasoning at every turn, but four of them were in the dissent.) What the Court has “held” is extremely important to lower courts seeking to apply the decision, especially because ordinarily only a “holding” can displace contrary circuit precedent.
Lower courts have taken conflicting views on whether dissenting votes count under Marks towards a binding “holding” of the Court. See, e.g., United States v. Robinson, 505 F.3d 1208, 1221 (11th Cir. 2007) (“In our view, Marks does not direct lower courts interpreting fractured Supreme Court decisions to consider the positions of those who dissented.”); King v. Palmer, 950 F.2d 771, 783 (D.C. Cir. 1991) (en banc); (“[W]e do not think we are free to combine a dissent with a concurrence to form a Marks majority.”); with United States v. Johnson, 467 F.3d 56, 64-66 (1st Cir. 2006) (collecting authorities: “we do not share the reservations of [King v. Palmer] about combining a dissent with a concurrence to find the ground of decision embraced by a majority of the Justices”); Student Pub. Interest Res. Group v. AT&T Bell Labs, 842 F.2d 1436, 1451 (3d Cir. 1988) (considering dissenting votes). The SG sought review on this issue in the specific context of its application to the fractured Clean Water Act decision Rapanos v. United States, 547 U.S. 715 (2006), but the Court denied cert. See 555 U.S. 1045 (2008) (08-223).
As an initial matter, it may be an open question whether Marks even applies to NFIB v. Sebelius, because perhaps it is not the case that “no single rationale . . . enjoys the assent of five Justices.” After all, the “rationale” of the Chief’s opinion is similar to that of the joint dissent. But it appears to be the case that “no single rationale explaining the result enjoys the assent of five Justices,” because the joint dissent’s rationale does not “explain the result.” They dissent from the result. So at least arguably, Marks governs here.
Before NFIB v. Sebelius, I might have thought that the statements in the Chief’s opinion and the joint dissent about the Commerce Clause and the Medicaid expansion were not technically “holdings” for purposes of Marks because by its own terms, that rule only applies to votes “concurr[ing] in the judgment.”
But a careful reading of the opinions suggests a majority of the Court in NFIB v. Sebelius applied Marks to dissents. This is the most clear with respect to the Commerce Clause analysis. The opinion of the Court states, “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from regulated activity.” Slip op. 41-42 (emphasis added). That is an express statement, in an opinion actually joined by five Justices, that characterizes a conclusion necessarily supported by dissenting votes as a “hold[ing].”
In addition, a portion of the Chief Justice’s opinion joined by Justices Breyer and Kagan twice referred to the view of seven Justices that the Medicaid expansion exceeded Congress’s Spending Clause authority as a “holding” of the Court. See slip op. 56 (“[t]oday’s holding”), 58 (“our constitutional holding”). And Justice Ginsburg (joined by Justice Sotomayor) stated that “A majority of the Court . . . buys the argument that prospective withholding of funds formerly available exceeds Congress’ spending power. Given that holding, I agree entirely with THE CHIEF JUSTICE as to the appropriate remedy.” Slip op. 40 (opinion of Ginsburg, J., concurring in part, concurring in the judgment in part, and dissenting in part).
There are other such examples of the Court referring to dissenting votes as part of a “holding,” but as far as I know, you have to go back a ways for them. Justice Marshall’s opinion for a unanimous Court in Alexander v. Choate, 469 U.S. 287, 293 & nn. 8-9 (1985), discusses the Court’s “two-pronged holding” and what “the Court held” in Guardians Ass’n v. Civil Serv. Comm’n, 463 U.S. 582 (1983), by combining the votes of the plurality with those of dissenters in that case. See also United States v. Jacobsen, 466 U.S. 109, 115-118 (1983) (noting the conclusion of “a majority of the Court,” relying on the votes of dissenters). More recently, some members of the Supreme Court have indicated that lower courts should include dissenting opinions in extracting principles that “a majority” of the Court has embraced. See League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 413-414 (2006) (Kennedy, J.); Waters v. Churchill, 511 U.S. 661, 685 (1994) (Souter, J., concurring). By contrast, the opinion of the Court in Alexander v. Sandoval, 532 U.S. 275, 281-282 (2001) (Scalia, J.), appeared to draw a distinction between what those who concurred in the judgment in Guardians Ass’n agreed to, which it said was what “the Court held,” and what “[f]ive Justices,” including dissenting ones, “voted to uphold.”
If you know of other instances where the Court or its members have said that dissenting votes constitute part of a “holding” under Marks, please let me know in the comment section. In any event, it looks to me like the Court could stand to revisit the meaning of Marks and do a bit more to explain its application.
There’s the separate question of whether the views of five Justices about the Commerce Clause is a “holding” because it’s arguably unnecessary to the judgment, but others have already plowed that ground. See the Chief’s opinion (slip op. 44), David Post’s discussion, and these discussions.