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Abstract

The Supreme Court sometimes decides cases without reaching a majority-supported agreement on a rule that explains the outcome. Determining the precedential effect of such plurality decisions is a task that has long confounded both the Supreme Court and the lower courts. But while academic commenters have proposed a variety of frameworks for addressing the problem of plurality precedent, little existing commentary has focused on a deeper and more fundamental question—namely, what makes plurality precedent so confusing? Answering this question is not only critical to developing a more coherent and administrable doctrine of plurality precedent but is also a useful prism through which to examine our shared understanding of precedential authority more generally. This Article argues that plurality decisions are so confusing because they expose a latent ambiguity in our law of precedent. Looking to the debates surrounding plurality precedent reveals at least three distinct—and to some extent, mutually inconsistent—models of precedential authority. The first of these models, the “judgment model,” is closely connected to the traditional common law view, which grounds the precedential authority of judicial statements in the ability of those statements to explain the particular judgment issued by the court in the case before it. The second model, the “prediction model,” views the holding of a case as the rule that best predicts the future behavior of the court based on the expressed views of the participating judges. Finally, the “pronouncement model” focuses on the judiciary’s law declaration function, viewing all majority-endorsed legal rules as entitled to precedential force regardless of their connectedness to the court’s judgment or their capacity to predict the court’s future behavior. Exposing the ambiguities inherent in plurality precedent does not provide a clear answer to how the conflict among the competing models should be resolved. But doing so may help eliminate some of the conceptual confusion that has grown up around plurality precedent. In particular, focusing on the underlying theories of precedential authority that drive the various approaches to plurality precedent suggests that some of the most widely accepted approaches that have been embraced by lower court judges may lack a coherent justification in any plausible model of precedential authority. Recognizing the underlying ambiguity can also help to expose potential connections to other, seemingly unrelated doctrinal areas that may be affected by changes to the doctrine surrounding plurality precedent.

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