March 30, 2018 | By TONY FRANCOIS
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PLF filed a friend of the court brief in the Supreme Court of the United States a few months ago, in Hughes v. United States, and the Court heard oral argument in the case this week. The case asks the Supreme Court to provide better guidance to the lower courts on what to do when the Supreme Court can’t agree on a legal principle.

In the last fifty years or so, the Court has frequently issued fractured decisions, involving multiple opinions that no majority of the justices support. In Marks v. United States, the Court directed lower courts to decide which of the opinions in a fractured decision is the precedent from the case.

In Hughes, the petitioner is asking the Court to revisit its fractured decision in Freeman v. United States, that tried to decide when criminal defendants who entered into plea bargains are eligible for sentence reductions. How the Court decides Hughes has direct implications for how the lower courts apply the fractured decision in Rapanos v. United States. In Rapanos, a majority of the Court struck down EPA and Army Corps regulations categorically defining all tributaries as “navigable waters” under the Clean Water Act, but disagreed why. Four justices wrote that the term only includes relatively permanent, continuously flowing streams, rivers, and lakes, while one justice wrote that the term also includes any other water with a vaguely explained “significant nexus” with actually-navigable rivers and lakes.

Lower courts have ruled that the single justice “significant nexus” opinion in Rapanos is the binding interpretation of the Act, despite eight other justices disagreeing with it. Some have held this because it is the least restrictive of government power. Others have held that the four dissenting justices would always find Clean Water Act coverage under that test as well as their own more permissive view. Finally, some lower courts try to predict how the Supreme Court would resolve particular cases based on the various opinions in Rapanos. But all of these are at odds with what Marks allows.

If the Supreme Court in Hughes refines Marks in any meaningful way, then lower courts will likely have to revisit how they have interpreted Rapanos as well. Interestingly, the Solicitor General conceded as much during oral argument:

JUSTICE GORSUCH: And — and it doesn’t seem to be a pervasive problem outside of the Freeman context, at least that you’ve documented so far. And I was just wondering whether you had any other evidence of problems outside of the Freeman context.

MS. KOVNER: So I think an additional circumstance, you know, some of the amicus briefs allude to is interpreting this Court’s decision in Rapanos. You know, we think this — this same issue comes up there, and, you know, the two circuits that have indicated shared reasoning is necessary, I think, would regard this Court’s decision in Rapanos as not having precedential effect.

Assistant Solicitor General Kovner is referring, of course, to PLF’s amicus brief.

Our late friend and dear colleague Reed Hopper successfully argued the Rapanos case at the Supreme Court of the United States in 2006.