In Print: Volume 85: Number 6
Plurality and Precedence: Judicial Reasoning, Lower Courts, and the Meaning of United States v. Winstar Corp.
By James Bloom
85 Wash. U. L. Rev. 1373 (2008)
Plurality decisions of the United States Supreme Court have generated nearly unanimous negative outcry. The reasons generally given for decrying plurality decisions fall into two related categories. Some critics argue that plurality decisions represent a failure of the Supreme Court to fulfill its responsibility as lawmaker. Others argue that plurality decisions create confusion and inefficiency in the lower courts. It seems unlikely, however, that the Supreme Court will stop issuing opinions in which a majority of Justices cannot agree on any one controlling rationale for the decision. Many plurality decisions address fundamental-or even politically charged-legal issues. Other pluralities address less headline-grabbing issues, but can still be important in the day-to-day practice of law. A consistent method for interpreting plurality opinions would reduce some of the confusion pluralities generate. Not only would courts benefit from such a consistent method, but ordinary people and businesses could more effectively shape their behavior to avoid litigation if they had a better sense of how these decisions would apply. Moreover, if lower courts more fully analyzed the reasoning in plurality opinions, it would help clarify and resolve the issues that split the Supreme Court in the first place.
This Note examines both the main criticisms of plurality decisions and the various methods of interpreting plurality decisions used by lower courts-through the lens of how lower courts have addressed one particularly complex plurality, United States v. Winstar Corp. Part I.A of this Note examines the academic criticisms of plurality decisions and catalogues methods others have proposed for interpreting these decisions. Part I.B describes the four opinions handed down by the Supreme Court in Winstar. Part I.C examines six lower court cases where lower courts have analyzed and applied Winstar. Part II discusses how examining these methods and criticisms in light of how courts have applied plurality opinions can clarify the strengths and weaknesses of this body of thought. Part III defines and defends two new methods for interpreting plurality decisions-the simple reconciliation method and the policy space method-and shows how lower court analysis that builds on the reasoning of the Justices’ opinions in plurality decisions leads to better reasoned, more helpful, and more persuasive results.