Legal Definitions - Marks rule

The Marks rule is a legal principle used by courts, particularly lower courts, to determine the binding legal precedent from a U.S. Supreme Court decision when no single opinion receives the support of a majority of the justices.

When the Supreme Court issues a "fractured" or "plurality" opinion, it means that while a majority of the justices agree on the final outcome of a case (e.g., upholding or striking down a law), they do so for different legal reasons, leading to multiple separate opinions without one commanding the agreement of five or more justices. In such situations, the Marks rule dictates that the controlling legal standard—the actual "holding" that lower courts must follow—is found in the opinion of the justices who concurred (agreed) with the judgment on the "narrowest grounds."

To identify the "narrowest grounds" means finding the legal reasoning that is the least expansive, the most specific to the facts of the case, and represents the common denominator or most limited principle that a majority of the Court would likely endorse, even if they didn't explicitly sign onto that particular opinion. This approach helps to extract a clear, albeit limited, legal rule from a fragmented decision.

Here are some examples illustrating the Marks rule:

• Example 1: Environmental Regulation Challenge

  Imagine the Supreme Court hears a case challenging a new federal environmental regulation. Five justices vote to strike down the regulation, but they don't all agree on *why*. Four justices write an opinion arguing that the federal agency completely lacked the statutory authority to issue *any* such regulation, based on a very strict interpretation of the agency's powers. The fifth justice, who also votes to strike down the regulation, writes a separate opinion stating that the agency *does* have some authority, but this *specific* regulation is invalid because the agency failed to follow proper administrative procedures (e.g., public notice and comment requirements) when creating it. The remaining four justices dissent, believing the regulation is valid.

  How the Marks rule applies: No single opinion has five votes. The four justices and the single justice agree on the outcome (the regulation is invalid). The single justice's reasoning—that the regulation is invalid due to a procedural flaw in its creation—is the "narrowest ground." It's a more limited basis for invalidating the regulation than arguing the agency has no authority whatsoever. Therefore, under the Marks rule, the binding precedent for lower courts would be that the regulation is invalid due to a procedural defect, not because the agency lacked all authority.

• Example 2: Free Speech and Public Protests

  Consider a scenario where a city ordinance restricts certain types of protest signs in public parks. The Supreme Court reviews a challenge to this ordinance. Four justices vote to declare the ordinance unconstitutional, writing an opinion that it violates a broad principle of free speech, allowing almost no restrictions on political expression. Two other justices also vote to declare the ordinance unconstitutional, but their separate opinion argues it's unconstitutional because it's too vague and doesn't provide clear guidelines for enforcement, thus violating due process, without agreeing with the broad free speech principle. The remaining three justices dissent, believing the ordinance is constitutional.

  How the Marks rule applies: Again, no single opinion garners five votes. The four justices and the two justices agree on the outcome (the ordinance is unconstitutional). The two justices' reasoning—that the ordinance is unconstitutional due to vagueness and lack of clear guidelines—is the "narrowest ground." It's a more specific and less sweeping reason than the broad free speech principle articulated by the other four justices. Consequently, the Marks rule would establish that the city ordinance is unconstitutional because it is impermissibly vague, providing the binding precedent for future cases.