The justices are back on the bench this morning for arguments on an issue that has puzzled and frustrated lower courts and practitioners alike: how to apply fractured U.S. Supreme Court precedents. The issue returns to the justices this time in a sentencing case. We also have an update on how the government is responding to the passage of the CLOUD Act and its potential impact on the pending decision in United States v. Microsoft. And we have more lawyerly input on another vexing issue: Is a hot dog a sandwich? The court is expected to issue decisions this morning as well, so stay tuned. June is right around the corner.

Thanks always for reading, and we appreciate any feedback. Contact us at [email protected] and [email protected].

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Cracking the 4-1-4 Puzzle

For judges and practitioners, nothing may be more frustrating than a Supreme Court plurality decision that fractures 4-1-4. What is the controlling opinion? In a 1977 decision—Marks v. United States—the justices offered a rule that they later twice said was “easier stated than applied.”

This morning, in the sentencing case Hughes v. United States, the justices will be asked to take another crack at explaining how a fragmented Supreme Court decision should be interpreted, and perhaps even jettison that 1977 rule.

➤➤ What is the Marks Rule? “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.”

➤➤ Here's the underlying case: Erik Hughes signed a plea deal in which the prosecutor recommended a particular sentence. In Hughes's agreement, it was 180 months. After the plea, the U.S. Sentencing Commission reduced the offense levels for certain drug crimes, and Hughes sought a sentence reduction. He was eligible if his sentence was “based on a sentencing range that has subsequently been lowered.” Was Hughes's plea, with its specific sentence, “based on” the sentencing guidelines? Hughes says yes, whenever there is a guideline reduction; the United States says never. The U.S. Court of Appeals for the Eleventh Circuit said Hughes is not eligible for a sentence reduction because “he was not sentenced 'based on a sentencing range' … that has since been lowered.”

➤➤ Why there's a complication: In 2011 in Freeman v. United States, the justices confronted the same “based on” question—and the court split 4-1-4. Justice Sonia Sotomayor concurred only in the judgment. Her opinion, which shared no common rationale with the four-justice plurality, required the plea to expressly invoke the guidelines. After the Freeman decision, two federal appellate courts held that because no single rationale had captured a majority of justices, Freeman produced no binding rule of decision. Other circuit courts—including the Eleventh—concluded that Sotomayor's concurrence presented the narrowest rationale.

➤➤ Arguing for Hughes: Eric Shumsky, a partner at Orrick, Herrington & Sutcliffe, will argue that the prison sentence was “based on” the guidelines because they bore a “reasonably close connection” to the sentence imposed. If the justices are not convinced by that argument, he says, they should still vacate the lower court ruling because it treated the Freeman concurrence as binding precedent.

“No opinion in Freeman can be said to provide a Marks 'narrowest ground,'” Shumsky argues. “Most fundamentally, the plurality and concurring opinions disagreed about the basic test for assessing when” sentencing relief is available. Alternatively, he adds, the court could find that Marks is unworkable and return to the prior rule that “no opinion establishes precedent unless it carries majority assent.”

➤➤ For the United States: Rachel Kovner, an assistant to the solicitor general, will urge the justices to reaffirm the Marks rule “that divided decisions establish binding precedent without regard to whether a majority of Justices share common reasoning.” The Eleventh Circuit correctly applied Freeman, Kovner argues.

Several amicus briefs point out the problems with applying the Marks rule.

Mayer Brown partner Timothy Bishop, representing agriculture, forestry, mining and petroleum interests, uses the splintered Clean Water Act decision in Rapanos v. United States to argue that a concurring opinion is controlling only if a majority of the court would accept its rationale. Brian Hodges of the Pacific Legal Foundation makes a similar case drawing on experience with litigating Clean Water Act issues. And Richard Re of UCLA School of Law tells the court: “On balance, the least disruptive option is to make a clean break with the Marks rule.”

The Microsoft Case, Under a CLOUD

During the February 27 argument in United States v. Microsoft, the elephant in the room was the CLOUD Act—a law, working its way slowly through Congress, that would probably resolve the dispute in the case over U.S. law-enforcement access to email data stored in servers overseas.

► “Why shouldn't we leave the status quo as it is and let Congress pass a bill in this new age?” Justice Sonia Sotomayor asked.

► Justice Samuel Alito Jr. also chimed in: “It would be good if Congress enacted legislation that modernized this, but in the interim, something has to be done.”

Congress and the White House got the message.

The CLOUD Act—which stands for Clarifying Lawful Overseas Use of Data—was part of the omnibus budget bill that passed through Congress and was signed into law on March 23. It will clear the path for law enforcement to seek email content that is in the control of U.S. providers, even if it is stored in other countries.

As soon as the bill became law on Friday, U.S. Solicitor General Noel Francisco alerted the high court in a letter that “The United States is currently determining whether, and if so, to what extent the passage of the CLOUD Act affects the Court's disposition of this case. It intends to file a supplemental filing addressing the question as promptly as possible.”

That may sound like hedging, but American University Washington College of Law Jennifer Daskal, who has written extensively about the new law, is pretty sure of the outcome:

“I would expect that DOJ and Microsoft will file a joint motion to dismiss and vacate the Second Circuit opinion below. The issue would, after all, be mooted—as the statute will have been updated to answer the precise question that is now being presented to the court: Does or does not the Stored Communications Act authorize the government to compel, via a warrant, US based companies to disclose data that happens to be stored overseas. The legislation says yes, although it also ensures that there is either a statutory or common law basis, depending on the specifics, to move to quash based on comity concerns, if the target is a foreigner overseas and the request will generate a conflict of laws.”

No word from Microsoft since the law passed, but earlier last week, Brad Smith, the company president and chief legal officer, called the statute “a critical step forward in resolving issue that has been the subject of litigation for over four years.”

Relishing: More On RBG, Colbert & Hot Dogs

We had a lot of fun asking lawyers about whether they think hot dogs are sandwiches. Thanks, of course, to Stephen Colbert and Justice Ruth Bader Ginsburg. If you missed our report, check it out!

After publication of our story, some of our readers just couldn't resist tackling what Colbert considers one of the most pressing questions of our time.

New York State Department of Taxation and Finance says hotdogs are indeed sandwiches. (OK, for sales tax purposes.) Read the bulletin here. And thanks to tax practitioner Libin Zhang of New York's Roberts & Holland for alerting us.

Of course, Chicagoans know their hot dogs. “Chicagoans don't care how you classify it as long as you don't put ketchup on it,” said Jade Lambert, a partner at King & Spalding in the Windy City.

ICYMI: Garland-Brennan Letters, Breyer's Commencement Address

➤➤ How Merrick Garland ended up clerking for Justice William Brennan. We continue our dive into the Brennan papers at the Library of Congress.

➤➤ The Justice Department got what it wanted, but it still doesn't taste good. The Supreme Court on Monday declined to hear a challenge to a $380 million “cy pres” settlement. U.S. Attorney General Jeff Sessions' Justice Department had called the Obama-era deal “regrettable.” But the government didn't press the justices to take the case.

➤➤ Justice Stephen Breyer will be the New York Law School commencement speaker on June 1, per our colleagues at New York Law Journal.

➤➤ Coming soon to a Supreme Court near you? Former SGs Donald Verrilli Jr. and Paul Clement faced off Monday in the D.C. Circuit over whether the District's subway system unlawfully refused to run a religious advertisement. Clement of Kirkland & Ellis argued for the Archdiocese of Washington, and Verrilli, a partner at Munger, Tolles & Olson, represented the Washington Metropolitan Area Transit Authority.