80 Colum. L. Rev. 756 (1980)
The Precedential Value of Supreme Court Plurality Decisions

handle is hein.journals/clr80 and id is 772 raw text is: NOTES
The Precedential Value of Supreme
Court Plurality Decisions
The number of Supreme Court plurality decisions1 has increased
dramatically in recent years.2 Because they do not provide any single
line of reasoning supported by a clear majority of the Court, these deci-
sions pose substantial difficulties for lower courts attempting to ascertain
their precedential value, difficulties compounded by the variety of forms
that plurality decisions can take.3 With the benefit of only spotty guid-
ance from    the Supreme Court,4 lower courts have relied largely on intu-
ition and common sense in handling plurality decisions. Neither they
nor legal scholars have articulated a more systematic and principled ap-
proach to the problem.5
This Note first examines the values underlying the precedential system
of judicial decisionmaking and the role plurality opinions play in this
system. The Note then identifies approaches commonly used by courts
to deal with plurality decisions, analyzing their theoretical soundness and
practical utility. Finally, the Note suggests normative standards to pro-
mote a more rational treatment of plurality decisions.
1. Plurality decisions, also called no-clear-majority decisions, are those in which a
majority of the Court agrees upon the judgment but not upon a single rationale to support
the result. Thus, there is no opinion of the Court in the ordinary sense. Plurality
decisions are to be distinguished from affirmances by an equally divided Court, when there
is no majority agreement even on the result, and from per curiam  opinions, in which a
majority of Justices expresses at least summary agreement on the reasoning. This Note
uses the term plurality opinion or the plurality to refer to the opinion designated as the
lead opinion of the Court, which is not always the opinion subscribed to by the largest
number of Justices. Other opinions that join the judgment are designated as concurrences,
even if they receive more votes than the lead opinion.
2. The Supreme Court issued 45 plurality opinions from the early 1800's, when Chief
Justice Marshall discarded the practice of issuing individual opinions seriatim and began
issuing opinions of the Court, to 1956. For an exhaustive survey of the plurality decisions
issued during that period and their treatment by lower courts, see Comment, Supreme Court
No-Clear-Majority Decisions: A Study in Stare Decisis, 24 U. Chi. L. Rev. 99 (1956)
[hereinafter cited as Chicago Comment]. Since the 1955 Term the Court has issued 101
plurality decisions.
3. Plurality decisions can be typed according to the exact alignment of the Justices
and the relationships between the lines of reasoning employed. Each type of opinion poses
distinct problems of interpretation. See generally Chicago Comment, supra note 2, suggesting
that there is a pattern to the treatment courts have given to different types of opinions.
4. See Marks v. United States, 430 U.S. 188 (1977); Gregg v. Georgia, 428 U.S. 153
(1976), discussed in notes 30-31 and accompanying text infra.
5. Several commentators have discussed the problems posed by plurality opinions without
specifically considering how such opinions should be interpreted by the lower courts. See,
e.g., Davis & Reynolds, Juridical Cripples: Plurality Opinions in the Supreme Court, 1974
Duke L.J. 59 [hereinafter cited as Juridical Cripples] (examining reasons for increase in
plurality opinions, noting adverse effects of such decisions, and suggesting alternatives);
Comment, A Suggestion for the Prevention of No-Clear-Majority Judicial Decisions, 46
Tex. L. Rev. 370 (1968) [hereinafter cited as Texas Comment]; Note, Lower Court Disavowal
of Supreme Court Precedent, 60 Va. L. Rev. 494 (1974) [hereinafter cited as Lower Court
Disavowal]; Chicago Comment, supra note 2.

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