The federal courts have struggled with interpreting and applying Marks for nearly the past four decades. It hasn't gotten any easier. The Ninth Circuit's no exception.
Last year, a Ninth Circuit panel decided a particular case (involving a motion to retroactively change a crack cocaine sentence) and held that circuit precedent precluded the relevant motion. The panel was right -- a Ninth Circuit case from 2012 had involved the identical issue, and has expressly so held.
But Judge Berzon concurred, stating that although she agreed that circuit precedent dictated the result, the prior panel had gotten the issue wrong, and urged that the case be taken en banc. She said that the prior panel had erroneously applied Marks to the issue when it elected to apply Justice Sotomayor's concurrence (in that 4-4-1 case) as the controlling legal principle despite the fact that all eight of the other justices expressly disagreed with her view. So Judge Berzon thought the Ninth Circuit should take the case en banc and correct the error.
Later that year, the Ninth Circuit indeed took the case en banc. And today, the Ninth Circuit decides the case.
The en banc court again agrees with Judge Berzon. It overrules the prior panel precedent from 2012. And the only judge who dissents from this decision to overrule that 2012 opinion is the author of that prior precedent: Judge Bea.
But fear not. Disputes about the proper interpretation of Marks nonetheless continue unabated. Judge Paez's opinion for the Ninth Circuit decides to adopt the plurality opinion in the underlying Supreme Court case (rather than Justice Sotomayor's concurrence) as the controlling legal principle, but states that he's not deciding -- for now -- whether the reasoning of the dissenting justices in that case can be evaluated when deciding which rule to follow under Marks. Judge Christen, by contrast, adopts that same controlling principle -- the plurality's -- but nonetheless writes separately to state that dissenting opinion should never be evaluated when deciding which rule to follow under Marks.
So there's still a fight about how to interpret the case.
Oh, and in a neat little coincidence, guess how many judges on the Ninth Circuit panel agree with the approach articulated by Judge Paez, and how many agree with the approach articulated by Judge Christen.
So it's a 5-5-1 on that point. (And I'm not going to even address the additional complexity of Judge Bea's dissent on this issue, or whether you're permitted to evaluate the dissent's reasoning in a case with no majority opinion that involves the issue of whether you're permitted to evaluate the dissent's reasoning in a case with no majority opinion.)
Fear not. There's still a ton to fight about with respect to how to read plurality opinions. Both in the Ninth Circuit and beyond.
Plenty of work for lawyers.