Today’s opinion in Hein v. Freedom of Religion is an important one, and I have too much to say about it to keep it to just a single, coherent post. Thus, the first post will be the first part of a two-part series on the Hein opinion. In part one, I would like to address the difficult question of which opinion is controlling.
The first, and perhaps most difficult, question about today’s opinion is which approach is controlling for the lower courts and for stare decisis purposes? The Court has given us some guidance on how to read a deeply fragmented opinion in the 1977 case of Marks v. United States: “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.” The problem we have today is that Justice Scalia’s opinion concurring in the judgment cannot be viewed as the narrowest grounds. I am working on an Article on the application and weaknesses of the Marks rule, but this is one of several instances in which it is safe to say, on its face, it is of little help.
Marty Lederman, in his post earlier today, called Justice Kennedy the “controlling vote” and his opinion “the controlling concurrence,” but I believe that Marty is incorrect. The plurality opinion was written by Justice Alito, and joined by two other Justices, Chief Justice Roberts and Justice Kennedy. Justice Kennedy wrote a concurring opinion, not an opinion concurring in the judgment, on behalf of only himself. This means that he unqualifiedly joined in the plurality opinion written by Justice Alito, and the Court’s characterization of the votes reflects that outcome (Justice Alito, joined by the Chief Justice and Justice Kennedy). So, in my opinion, the two opinions that cannot be controlling are the dissent and Justice Kennedy’s concurring opinion.
What about Justice Scalia’s opinion concurring in the judgment? Under a strict reading of the Marks rule, as the only opinion concurring in the judgment, it must, as a matter of logic, also be the narrowest. But does that mean that Justice Scalia’s opinion, which would overrule Flast entirely, is controlling? Not quite. Only two Justices, Justices Scalia and Thomas, would vote to overrule Flast, while three others would vote to essentially confine Flast to its facts.
The narrowest approach, therefore, is the one presented in the plurality opinion. Can it be controlling? Yes, but the Court has never expressly said so. In the past, citing the Marks rule, the Court has given controlling weight to a plurality opinion in similar circumstances. See, e.g., City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 764 n.9. In other words, the Court treats a plurality opinion as equivalent to an opinion concurring in the judgment for purposes of the Marks rule.
Although it is a legal fiction, the rationale would be that Justices Scalia and Thomas would sooner agree with a narrower opinion confining Flast to its facts than with a dissenting opinion expanding the taxpayer standing doctrine to Establishment Clause challenges based on executive action. The reason it is a legal fiction is that Justice Scalia hints in his opinion concurring in the judgment that the dissent presents a far more principled approach than the plurality opinion, and thus we don’t necessarily know how Justices Scalia and Thomas would vote if it were a binary decision between joining the plurality opinion and the dissenting opinion. Nevertheless, under the Marks rule, a dissent, reaching the opposite result (affirmance vs. reversal) can never be the controlling opinion. So, while the multiple opinions in this case create a verifiable mess for lower courts, I would conclude that the plurality opinion is indeed controlling in this case.
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