It is rare, bordering on never, for the U.S. Supreme Court to discuss during an oral argument how it makes its decisions and how they should be interpreted.

But an hourlong argument on Tuesday was all about that. The nine justices debated about what should happen when they issue fragmented decisions, like those that are split 4-1-4.

For 41 years, the court's ruling in Marks v. United States provided the answer: “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 classic 4-1-4 case was Regents of the University of California v. Bakke, the 1978 affirmative action ruling in which the late Justice Lewis Powell Jr.'s solitary and narrow opinion became the prevailing decision.

In Tuesday's case, Hughes v. United States, the dispute was over the meaning of Freeman v. United States, a 2011 sentencing decision, where lower courts are split over whether Justice Sonia Sotomayor's solo concurrence should be the controlling opinion.

The quandary provoked fanciful hypotheticals, which lawyers for both sides deftly handled. Eric Shumsky, partner at Orrick, Herrington & Sutcliffe, represented the defendant and urged the court to reconsider the Marks rule. Rachel Kovner, assistant to the U.S. solicitor general, argued for the status quo.

“Let's say that nine people are deciding which movie to go and see,” Justice Samuel Alito Jr. posited, “and four of them want to see a romantic comedy, and two of them want to see a romantic comedy in French, and four of them want to see a mystery. Are the two who want to see the romantic comedy in French, is that a logical subset of those who want to see a romantic comedy?”

Shumsky's answer was to urge all the players to make their preferences clear. “Anytime, two people, be they justices of this court or people going to see a romantic comedy, can say here's how far I go, but I don't agree with that thing over there,” he said.

In a more serious vein, some justices seemed sympathetic to the problems caused by splintered opinions for lower court judges especially when, as Chief Justice John Roberts Jr. put it, “If I'm a court of appeals judge, it seems to me the most important thing in deciding the case is to make sure that I'm not reversed.”

Justice Elena Kagan worried aloud, “There are some cases where there are middle-ground positions which seem utterly incoherent to anybody else, incoherent or maybe it's based on what you think is an impermissible criterion, or for some reason the middle ground is the worst of all possible worlds.”

She also expressed concern about the situation where a solo concurrence agrees with the plurality on some issues and the dissent on others. “By privileging the concurrence, you're essentially saying that when the concurrence agrees with the dissent, the concurrence wins, which I take it is because the concurrence plus the dissent equals five,” she said.

Justice Stephen Breyer seemed to want to stick with the Marks rule and just hope that lower courts will use common sense in interpreting the court's decisions.

Citing the 1978 Bakke ruling, Breyer said, “Powell, of course, is in part key because he had a sensible view. And the public, the lawyers, the clients, the other judges, are the ones who tell us that over time. … They've done all right with Marks. Leave it alone.”

Alito was also dubious about change. “If we abandon [Marks] completely, it could have pretty profound changes. Why should we do that?”

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