//  6/5/18  //  Commentary

Cross-posted from Dorf on Law

Yesterday's SCOTUS decision in Masterpiece Cakeshop case did not decide the main issue that made it worth following: whether a baker has a constitutional right of free speech to refuse to make a wedding-style cake for a same-sex couple in the teeth of a state public accommodations law. Instead, as I discussed here, the Court resolved the case based on a rather far-fetched reading of the record in the Colorado Civil Rights Commission, attributing anti-religious bias to one or two commissioners based on statements that, all things considered, are best read not to express such bias.

I have my doubts about whether all seven justices in the Masterpiece majority (or even five of them) actually thought this was the best way to resolve the case. It strikes me as more likely that this was a compromise ruling on relatively narrow case-specific grounds, reflecting an inability of the Court to produce a definitive ruling just yet.

Or maybe not. The Supreme Court has been holding the cert petition in Arlene's Flowers v. Washington since November. It presents essentially the same issue but with a florist instead of a baker. Had the Court resolved Masterpiece in favor of the cakeshop on the free speech claim, the standard procedure now would be to grant the Arlene's Flowers cert petition, vacate the Washington State Supreme Court ruling, and remand for reconsideration in light of Masterpiece. Such a procedure--grant, vacate, and remand--is known in the trade as a GVR. But because the Court did not address the key issue in Masterpiece, a GVR now makes no sense. There is, so far as I'm aware, no issue of possible subjective anti-religious bias in Arlene's Flowers. Thus, if the Court resolved Masterpiece the way it did because a majority of the Court really thought that the subjective bias issue was the best way to deal with the case on the merits, it should now grant cert in Arlene's Flowers to address the bigger question it left unresolved in Masterpiece. However, if the Court now simply denies cert in Arlene's Flowers or, worse, nonsensically GVRs, then we will have strong evidence that the justices are punting because they don't want to decide the conflict between speech and civil rights.

I don't want to sound too critical of the Court's performance in Masterpiece. There are times when strategic ducking makes sense practically if not strictly legally. In recent memory, the best example is probably the Court's handling of the 2004 Establishment Clause challenge to the Pledge of Allegiance for its inclusion of the phrase "under God." Rather than rule in favor of the plaintiff and open a new front in the culture war, a majority dismissed the case on questionable standing grounds. Sometimes a bogus procedural ruling is better than either a bad substantive ruling (such as approving the Pledge) or a correct one (such as invalidating the Pledge) that sparks destructive backlash.

Whether Masterpiece Cakeshop can best be described as justifiable procedural ducking remains to be seen, but there are reasons to be hopeful. For the most part, state and lower federal courts have been ruling against claims for religious and speech exceptions to anti-discrimination laws brought by the likes of photographers, bakers, and florists. And because I think that generally that's the right result, I'd much prefer that the SCOTUS stay out of these cases than resolve them in what I regard as the wrong way. So from my perspective, there's no great urgency here. Put differently, I would regard a cert grant in Arlene's Flowers as potentially worse than a denial.

If ducking hot-button cultural issues sometimes makes sense, there can be little justification for the SCOTUS avoiding "cold-button" wonky issues that hold no interest for the general public but are important to state and lower federal courts. Yet that is what the Court appeared to do yesterday in Hughes v. United States.

A little background may be helpful. In 2011, in Freeman v. United States, the Supreme Court decided a somewhat technical issue involving the interaction of the US Sentencing Guidelines and a federal statute. However, there was no majority opinion. Instead, the justices divided 4-1-4 among three different options, with Justice Sotomayor casting the solo vote. Some confusion resulted in the lower federal courts. Under a decision procedure specified in the 1977 case of Marks v. United States, when the Court divides in this way, lower courts should give precedential effect to "that position taken by those Members who concurred in the judgments on the narrowest grounds." Most lower federal court judges thought that Justice Sotomayor's opinion staked out the narrowest ground in Freeman and thus treated it as controlling. But a few courts did not, arguing that her ground for decision was not a logical subset of Justice Kennedy's plurality opinion. Kennedy and Sotomayor provided different rationales for the same bottom line in Freeman, these lower court judges observed, but neither rationale was broader or narrower than the other.

That characterization echoed a longstanding criticism of the Marks procedure. A good introduction to that criticism (along with a proposed solution) can be found in a cleverly titled recent article--Questioning Marks--by Prof. Ryan Williams in the Stanford Law Review. Prof. Richard Re offers still more pointed criticisms of Marks in a forthcoming article in the Harvard Law Review. Meanwhile, Prof. Max Stearns has defended Marks in various academic work summarized in an amicus brief he filed in Hughes. According to Prof. Stearns, when the Court divides, it usually does so along one dimension, and in those circumstances, there is no difficulty with applying the Marks rule.

As the careful scholarly attention given to the critique and defense of Marks indicates, whether to retain Marks, if so, what exactly it means, and if not, what should replace it, are important questions. The first two of three cert questions in Hughes concerned the application of Marks. And the briefing and oral argument in Hughes focused intently on the Marks-based procedural question: what should lower court judges do when faced with non-majority opinions of the SCOTUS?

So how did the Court answer the question in Hughes? It didn't. Rather than say what precedential effect should be given to which opinions from Freeman, the Court simply issued a majority opinion resolving the issue that divided the justices in Freeman. Justice Kennedy explained the non-decision of the Marks question this way:

a majority of the Court in the instant case now can resolve the sentencing issue on its merits. So it will be unnecessary to consider [cert] questions one and two despite the extensive briefing and careful argument the parties presented to the Court concerning the proper application of Marks. The opinion that follows resolves the sentencing issue in this case; and, as well, it should give the necessary guidance to federal district courts and to the courts of appeals with respect to plea agreements of the kind presented here and in Freeman.

To which one wants to say: What??!!! Sure, you've rendered a decision regarding Marks unnecessary in the Freeman context, but what about all of the other circumstances in which lower courts need to figure out how to apply non-majority opinions? The Hughes opinion offers no justification whatsoever for punting on Marks.

Perhaps there is an excuse, if not exactly a justification. As Professor Re notes in a short post this morning on Prawfsblawg, maybe the justices could not reach a majority agreement about the Marks question. He observes that "it would have been awkward if the Court had issued a fragmented decision on the meaning of fragmented decisions." Indeed, that would not have been merely awkward but self-defeating. A fragmented decision could not resolve how to construe fragmented decisions except by self-referential bootstrapping.

But maybe the justices could have reached majority agreement on the Marks question and simply chose not to because, to quote CJ Roberts when he was a circuit judge, resolving the merits issue in Hughes was "a sufficient ground for deciding this case, and the cardinal principle of judicial restraint - if it is not necessary to decide more, it is necessary not to decide more - counsels [the Court] to go no further." If such a notion of judicial restraint motivated the Court's reticence on Marks in Hughes, then, I humbly suggest, the Court erred.

Avoiding unnecessary judicial decisions is a fine principle, one connected in some measure to separation of powers: If resolving an issue is truly unnecessary to the resolution of a case, then a court that resolves the issue drifts away from its role of resolving concrete cases and controversies and closer to the realm of legislation.

But let's not kid ourselves that the principle of avoiding unnecessary decisions has infinite weight. It sometimes competes with other important principles, including the weighty principle that like cases should be treated alike. Because of the limited number of cases the Supreme Court hears, in order to carry into effect the treat-like-cases-alike principle, the Court must issue opinions that give lower courts sufficient guidance so that they are applying the same rules of law. Accordingly, what CJ Roberts calls "the cardinal principle of judicial restraint" must sometimes give way to the principle that the SCOTUS should give guidance to lower court judges. Hughes should have been a case in which giving guidance prevailed over avoiding unnecessary decisions.

Indeed, one can go even further in criticizing the Court's unexplained ducking of the Marks question in Hughes. Usually when the Court fails to resolve some issue, if the issue is important a new case will come back to the Court presenting it soon enough. As noted above, that could happen very quickly with respect to Masterpiece Cakeshop. But the Marks question will remain duckable indefinitely, so long as a majority of the Court can resolve the underlying merits question.

To be sure, there are a couple of contexts in which it matters what the law was at some prior time, not what it is today: Whether a matter was clearly established is relevant to whether officers have qualified immunity for violating civil rights and for whether a state prisoner may obtain federal habeas relief. Thus, it is possible to imagine a case in which the only issue is what some prior divided Court ruling meant. E.g., did a 4-1-4 ruling clearly establish that some course of conduct was unlawful? However, the qualified immunity and habeas contexts have their own complications that make the answer to the question in those contexts potentially different from the general question of how, in a non-qualified-immunity/non-habeas context, a lower court should construe a divided SCOTUS ruling.

As a consequence, it does really look like the Court, following the practice of Hughes, could avoid resolving the Marks question indefinitely.  If the justices wait for a case in which it is truly necessary   to decide the Marks question to decide the case, they will wait forever.


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