Re: Roe: I haven't heard this question discussed here or elsewhere so I'm presenting portions
of a legal summary that addresses the question below.
QUESTION: What if the five USSC justices can’t agree on a single rationale for overturning Roe in their pursuit to overturn Roe? Is new precedent established and, if so, which Justice’s opinion becomes the new precedent for lower courts to follow?
MY NOTE: Everything that appears in quotes in this post has been taken from an article titled "What Happens When Five Supreme Court Justices Can’t Agree?” written by Kevin M. Lewis, Legislative Attorney for an organization called Congressional Research Service. The link to the entire article is here: https://sgp.fas.org/crs/misc/LSB10113.pdf
“The Supreme Court has stated that “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.’” That seemingly simple rule, however, is not always so simple to apply in practice. For example, it is not self-evident how should courts identify which Justice’s opinion rests on the “narrowest grounds.” If the opinion resting on the “narrowest grounds” only garnered a single Justice’s vote, does that opinion have precedential effect even when every other Justice on the Court disagrees with it?”
“If, instead, the rationale advanced by the plurality opinion does not overlap with that advanced by the concurring opinion, such that no opinion serves as “a logical subset of other, broader opinions,” the various opinions lack precedential effect and “only the specific result [of the case] is binding on lower federal courts.”
MY NOTE: In one cited case the dissenting opinion of one justice became the direction for the lower courts based on this narrowest grounds concept.
The following is a 6/4/2018 update about the court’s self-imposed rationale quandary. “UPDATE, 6/4/2018: On June 4, 2018, the Supreme Court issued its decision in Hughes. The Court ultimately deemed it “unnecessary” to decide which opinion governs when no single opinion enjoys a majority and instead decided the case on alternative grounds. Thus, the underlying circuit split concerning the Marks rule remains unresolved, and guidance from the Supreme Court regarding “the proper application of Marks” will have to await a future case.”
MY FINAL THOUGHT: It appears that the USSC must give specific guidance in Dobbs for the lower courts to follow if they want uniform compliance by the lower courts to uphold their decisions overturning Roe. This means that they can no longer leave Marks unaddressed. Otherwise their Dobbs decision will amount to nothing more than a proclamation, and a non-binding one at that.
= new reply since forum marked as read
