Interpreting Plurality Decisions: Fracking, Supreme Court Style

Fracking, shorthand for hydraulic fracturing, is a type of drilling used by oil and gas prospectors. It involves drilling thousands of feet below the surface before gradually turning horizontal and continuing onward. As a result, an initially unsuccessful drilling site can give rise to several unique wells. Similarly, it is possible that a case that is unsuccessful at generating a unanimous decision may also present various twists and turns by a group of appellate judges, which can give rise to several unique opinions.

When judges do not unanimously agree, they often write their own opinions explaining their reasoning and dissenting or concurring with parts of the other opinions. At times, however, no single opinion enjoys the support of the majority of judges. At these times, we look to find those ideas that the opinions have in common, such as a plurality decision, to rely upon.

Prior to 1939, the use of plurality decisions by the Supreme Court was fairly rare. In that year, Justice Frankfurter wrote a concurring opinion agreeing with the result, but not the reasoning in a case known as Graves v. New York rel. O’Keefe.[1] Following Justice Frankfurter’s opinion, other Justices began to increase the publication of their own concurring and dissenting views and opinions.

No doubt, the issuance of multiple non-concurring or partially concurring decisions by the Supreme Court has left many practitioners scratching their heads trying to figure out which portions of the opinions were binding and which were merely dicta. While the issuance of concurring opinions greatly increases our understanding of the Court’s views and rationale, the mere affirmation or remanding of a case based on a plurality decision can create havoc with everyday life, as these opinions often fail to give clear direction on important issues.

While bankruptcy cases are important to those directly involved and to the nation’s economic interests as a whole, Supreme Court cases can often take on a much more serious life or death issue. In fact, the Supreme Court was confronted by this issue in 1989 in a case known as Teague v. Lane.[2] In Teague, a man convicted of attempted murder during an armed robbery made a series of appeals, ultimately reaching the Supreme Court. In Teague, the Supreme Court issued a very fractured plurality decision on whether a recently decided case could be applied by Teague and on the effect of the pre-existing law.

From the two issues arising in this case, the Supreme Court issued a set of chaotic and confusing opinions upholding the conviction with a seven-to-two vote. Of the seven that voted for the judgment, there was a main plurality opinion with multiple parts; however, not all of the Justices agreed on all of the parts. Five Justices agreed to parts I and III of the opinion, seven agreed to part II, and four agreed to parts IV and V. In addition, two Justices agreed to a separate concurring opinion, and another Justice wrote a concurring opinion in which another Justice agreed to Part I, but not to Part II.[3]

Untangling plurality opinions is a difficult task for lower courts and one that can leave lower courts confused as to the case’s actual precedential value. In the Teague plurality opinion, Parts I, II and III would be considered precedent because at least five Justices signed onto those sections. The remaining opinions all have less than five Justices signing onto them, making their precedential value questionable at best. Parts IV and V state the Court’s reasoning on when to retroactively apply rules to decided cases, yet only four Justices signed onto that reasoning, with Justice White specifically disagreeing with the reasoning and writing his own interpretation of when to retroactively apply a Court decision. Justice Stevens further muddles the precedent by writing a separate concurring opinion, stating his interpretation on how to retroactively apply Court decisions, but disagreeing with the application of case law in the main plurality opinion. To confuse things even further, Justice Stevens’s concurrence was joined by another Justice with respect to the first issue, but not the second issue.[4]

Clear? Hardly not, and this is just one of many decisions the Supreme Court has handed down where the plurality decision muddies the water for practitioners. Many commonly cited bankruptcy cases have been also decided by a plurality including Northern Pipeline Construction Co. v. Marathon Pipe Line Co. (1982),[5] Till v. SCS Credit Corp. (1994)[6] and Stern v. Marshall (2011).[7]

Although plurality decisions remain a source of confusion, the Supreme Court did attempt to provide guidance in 1977 as part of Marks v. United States,[8] In Marks, the Supreme Court stated, “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.” Simply put, what has become known as the Marks Narrowest Grounds doctrine requires lower courts to look at all of the concurring opinions arising from a Supreme Court ruling that support the majority ruling, and to then determine the narrowest, most restrictive commonality occurring throughout those opinions. Only the portions of the opinions that “overlap” are to be binding on the lower court; the remainder have no precedential value.

Although the rule on interpreting Supreme Court plurality decisions has become clearer as a result of Marks, ambiguity still exists. The Supreme Court often issues opinions — pluralities, concurrences and dissents with little or no effort to clarify those places where the Justices agree and disagree — thereby leaving it to practitioners and lower courts to wade through the myriad thoughts provided by the Justices.

Over the last decade, a rash of Supreme Court decisions affecting the outcome of bankruptcy cases have been decided. While some have a direct effect on the reorganization or sale of a debtor’s assets, others indirectly affect their outcome. Consider the case of Kirtsaeng v. John Wiley & Sons Inc.,[9] which governs the first-sale doctrine of copyrights and trademarks enabling the distribution of copyrighted materials such as books, CDs and videos the next time your case seeks to sell copyrighted materials outside of the U.S.