# Supreme Court: split majority decision **URL:** \ **Category:** Factual Questions\ **Created:** [October 13, 2017, 3:51am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701 "2017-10-13T03:51:42Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [October 13, 2017, 3:51am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/1 "2017-10-13T03:51:42Z")
Let’s see if I can articulate this properly. This is about if justices disagree on the reason why they chose to vote a certain way. Let’s say a case comes before the court that raises both 4th and 5th amendment issues. 4 justices side with the lower court. 5 vote to overturn. 3 believe that there is no 5th amendment problem but there is a 4th amendment issue. 2 think there is a 5th amendment issue but no 4th amendment problem. Are both considered precedent? Is the 3 justice decision good enough to set precedent? Would it make a difference if the majority was split 3-3 or 4-4? ---
**Author:** ![OldGuy](https://avatars.discourse-cdn.com/v4/letter/o/3bc359/32.png) [@OldGuy](https://boards.straightdope.com/u/OldGuy)\ **Post date:** [October 13, 2017, 4:41am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/2 "2017-10-13T04:41:51Z")
I think what you want is what is called a plurality opinion: > **[Plurality opinion](https://en.wikipedia.org/wiki/Plurality_opinion)** > > A plurality opinion is in certain legal systems the opinion from one or more judges or justices of an appellate court which provides the rationale for the disposition of an appeal when no single opinion received the support of a majority of the court. The plurality opinion did not receive the support of more than half the justices, but still received more support than any other opinion, excluding those justices dissenting from the holding of the court. > In Marks v. United States, 430 U.S. 188 (1... ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [October 13, 2017, 11:17am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/3 "2017-10-13T11:17:42Z")
> [@Loach](#): > > Let’s see if I can articulate this properly. > > This is about if justices disagree on the reason why they chose to vote a certain way. > > Let’s say a case comes before the court that raises both 4th and 5th amendment issues. 4 justices side with the lower court. 5 vote to overturn. 3 believe that there is no 5th amendment problem but there is a 4th amendment issue. 2 think there is a 5th amendment issue but no 4th amendment problem. Are both considered precedent? Is the 3 justice decision good enough to set precedent? Would it make a difference if the majority was split 3-3 or 4-4? If there is some common ground shared by the 5 who joined in the result overturning, then that, and only that (the ‘narrowest ground’) is the holding of the Court. If there is literally no common ground apart from agreement on the result, then the “precedent,” is simply that the result is overturned and no further precedent is set. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [October 13, 2017, 11:56am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/4 "2017-10-13T11:56:21Z")
> [@Bricker](#): > > If there is some common ground shared by the 5 who joined in the result overturning, then that, and only that (the ‘narrowest ground’) is the holding of the Court. If there is literally no common ground apart from agreement on the result, then the “precedent,” is simply that the result is overturned and no further precedent is set. It has to be all 5 that agree? If it’s 4 then it can’t be used as precedent? Is there anyway a lawyer can bring up the decision later in a different case? ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 13, 2017, 12:33pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/5 "2017-10-13T12:33:01Z")
Could certainly cite the different opinions, yes, as persuasive indication of where some of the justices are going on the issue. But no, not a binding precedent unless endorsed by a majority. ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [October 13, 2017, 1:16pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/6 "2017-10-13T13:16:17Z")
> [@Loach](#): > > It has to be all 5 that agree? If it’s 4 then it can’t be used as precedent? Is there anyway a lawyer can bring up the decision later in a different case? If less than a majority could be used for a precedent, what’s so special about 4? Why not 1? ---
**Author:** ![Pleonast](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/pleonast/32/1183_2.png) [@Pleonast](https://boards.straightdope.com/u/Pleonast)\ **Post date:** [October 13, 2017, 1:31pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/7 "2017-10-13T13:31:21Z")
What precisely does “precedent” mean? I’m not a lawyer, but my understanding is that a precedent is a decision that a lower court is hesitant to rule against because they are confident an opposing ruling would be overturned on appeal. No lower court likes being overturned on appeal. If a court decision is so disjointed that a lower court cannot deduce how the higher court would decide another case, it cannot be a precedent for that case. ---
**Author:** ![puddleglum](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/puddleglum/32/137_2.png) [@puddleglum](https://boards.straightdope.com/u/puddleglum)\ **Post date:** [October 13, 2017, 1:59pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/8 "2017-10-13T13:59:48Z")
> [@Pleonast](#): > > What precisely does “precedent” mean? > > I’m not a lawyer, but my understanding is that a precedent is a decision that a lower court is hesitant to rule against because they are confident an opposing ruling would be overturned on appeal. No lower court likes being overturned on appeal. If a court decision is so disjointed that a lower court cannot deduce how the higher court would decide another case, it cannot be a precedent for that case. Precedent means a case that establishes a rule for other courts to follow. Courts like to be predictable. If a case arises with facts that have not been ruled on before that case establishes precedent so that the next time a case with similar facts arises the court can reach a consistent decision. That way people can follow the law and know what to expect. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 13, 2017, 2:33pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/9 "2017-10-13T14:33:38Z")
IANAL but I assume it works like this: Whn arguing a case, you cite precedent - “In other cases with situations that match my clients in this way - blah blah blah - courts ruled like this, with this logic…”. If it was one of the courts above the one the case is in, it’s binding precedent. If it’s a different “chain of command” of courts, it’s suggestions as to how other judges interpreted the law. If a majority of judges did not subscribe to that logic in a decision, then that argument is fairly weak. I suppose a more interesting question would be - if: > [@](#): > > Let’s say a case comes before the court that raises both 4th and 5th amendment issues. 4 justices side with the lower court. 5 vote to overturn. 3 believe that there is no 5th amendment problem but there is a 4th amendment issue. 2 think there is a 5th amendment issue but no 4th amendment problem. What if 2 of the 4 justices siding with the lower court also agree there is a 4th Amendment issue, but because of the 25th Amendment issues vote to not overturn - so you have 5 justices arguing that the 4th Amendment argument is valid, just other circumstances change the decision for some? Could the lawyer argue that the SCOTUS feels the 4th Amendment issue he raises is valid due to precedent? ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [October 13, 2017, 3:48pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/10 "2017-10-13T15:48:03Z")
It’s not a complicated “rule” here. If a majority of Supreme Court justices agree on some point of law, as applied to a specific fact pattern, then that becomes a decision that will be replicated for similar fact patterns in future cases by that court (unless/until they decide to modify/change the agreement; see: _Plessy v. Ferguson_ and _Brown v. Board of Ed._), and by lower courts. On occasion, exactly what the majority agreed to can be subject to interpretation (that was more true in the early days when each justice always issued his own opinion). ---
**Author:** ![allotrope](https://avatars.discourse-cdn.com/v4/letter/a/edb3f5/32.png) [@allotrope](https://boards.straightdope.com/u/allotrope)\ **Post date:** [October 13, 2017, 4:45pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/11 "2017-10-13T16:45:25Z")
> [@Pleonast](#): > > What precisely does “precedent” mean? > > I’m not a lawyer, but my understanding is that a precedent is a decision that a lower court is hesitant to rule against because they are confident an opposing ruling would be overturned on appeal. No lower court likes being overturned on appeal. If a court decision is so disjointed that a lower court cannot deduce how the higher court would decide another case, it cannot be a precedent for that case. My impression is that the concept of precedent can be somewhat flexible since it can always be argued that the facts of the case you’re arguing can be distinguished from those in the case being cited as precedent. Whether or not the differences you rely on are relevant to how the previous case was decided would be another matter. ---
**Author:** ![md2000](https://avatars.discourse-cdn.com/v4/letter/m/73ab20/32.png) [@md2000](https://boards.straightdope.com/u/md2000)\ **Post date:** [October 13, 2017, 5:17pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/12 "2017-10-13T17:17:46Z")
> [@allotrope](#): > > My impression is that the concept of precedent can be somewhat flexible since it can always be argued that the facts of the case you’re arguing can be distinguished from those in the case being cited as precedent. Whether or not the differences you rely on are relevant to how the previous case was decided would be another matter. I assume you can argue whatever you want; the question is - will the judge agree with you? and the appeal court above him/her? One lawyer I remember talking to about assorted cases remarked that an appeal court overturning too many of a judge’s decisions was a message to the judicial review board that the judge needed re-education. See “Appeals Court Tells Patent Trolls’ Favorite Judge He Can’t Just Ignore The Supreme Court To Keep Patent Cases In Texas” > **[Appeals Court Tells Patent Trolls' Favorite Judge He Can't Just Ignore The...](https://www.techdirt.com/2017/09/25/appeals-court-tells-patent-trolls-favorite-judge-he-cant-just-ignore-supreme-court-to-keep-patent-cases-texas/)** > > In Re Cray (PDF) In Re Cray (Text) > [@](#): > > The statutory language we need to interpret is “where the defendant . . . has a regular and established place of business.” 28 U.S.C. § 1400(b). The noun in this phrase is “place,” and “regular” and “established” are adjectives modifying the noun “place.” The following words, “of business,” indicate the nature and purpose of the “place,” and the preceding words, “the defendant,” indicate that it must be that of the defendant. Thus, § 1400(b) requires that “a defendant has” a “place of business” that is “regular” and “established.” All of these requirements must be present. The district court’s four-factor test is not sufficiently tethered to this statutory language and thus it fails to inform each of the necessary requirements of the statute. Almost like “let us explain it to you like you’re 5 years old…” ---
**Author:** ![Northern\_Piper](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/northern_piper/32/5304_2.png) [@Northern\_Piper](https://boards.straightdope.com/u/Northern_Piper)\ **Post date:** [October 13, 2017, 6:25pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/13 "2017-10-13T18:25:16Z")
> [@md2000](#): > > One lawyer I remember talking to about assorted cases remarked that an appeal court overturning too many of a judge’s decisions was a message to the judicial review board that the judge needed re-education. Your lawyer friend was talking through his hat, for Canada at least. Judicial councils have no power to review the merits of a judge’s decisions based on appellate record. A judge has a constitutional right to be wrong, and can’t be sent to re-education because the appeals court has overturned a lot of their decisions. Judicial councils are to review allegations of misconduct, not a judge’s track record in the appeals court. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [October 13, 2017, 6:39pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/14 "2017-10-13T18:39:29Z")
> [@John\_Mace](#): > > If less than a majority could be used for a precedent, what’s so special about 4? Why not 1? I think it’s like: “Of the majority that ruled X, the majority _of that subset_ used reasoning Y”. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [October 13, 2017, 7:32pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/15 "2017-10-13T19:32:57Z")
> [@Loach](#): > > It has to be all 5 that agree? If it’s 4 then it can’t be used as precedent? Is there anyway a lawyer can bring up the decision later in a different case? There are two kinds of precedent. A majority opinion from SCOTUS is _binding_ on the issues in which the majority join. A plurality opinion is not binding, but it is _persuasive_. A lower court - for example, one of the intermediate federal appeals courts - would give the plurality opinion approximately the same weight it would give to a majority opinion from one of the other federal circuits. A dissent or other minority opinion can also be persuasive, but would not be accorded the same sort of weight. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [October 13, 2017, 10:54pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/16 "2017-10-13T22:54:44Z")
> [@Really\_Not\_All\_That\_Bright](#): > > There are two kinds of precedent. A majority opinion from SCOTUS is _binding_ on the issues in which the majority join. A plurality opinion is not binding, but it is _persuasive_. > > A lower court - for example, one of the intermediate federal appeals courts - would give the plurality opinion approximately the same weight it would give to a majority opinion from one of the other federal circuits. > > A dissent or other minority opinion can also be persuasive, but would not be accorded the same sort of weight. Thank you that answers my poorly worded question. ---
**Author:** ![Loach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/loach/32/350_2.png) [@Loach](https://boards.straightdope.com/u/Loach)\ **Post date:** [October 13, 2017, 11:03pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/17 "2017-10-13T23:03:03Z")
> [@Pleonast](#): > > What precisely does “precedent” mean? > > I’m not a lawyer, but my understanding is that a precedent is a decision that a lower court is hesitant to rule against because they are confident an opposing ruling would be overturned on appeal. No lower court likes being overturned on appeal. If a court decision is so disjointed that a lower court cannot deduce how the higher court would decide another case, it cannot be a precedent for that case. How about instead of precedent we use case law? Precedent isn’t just there to keep courts from being overruled it has the same weight as law since we work under a common law system. A lawyer can use fancy lawyer speak to pretty that up. ---
**Author:** ![Rysto](https://avatars.discourse-cdn.com/v4/letter/r/ecccb3/32.png) [@Rysto](https://boards.straightdope.com/u/Rysto)\ **Post date:** [October 13, 2017, 11:14pm UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/18 "2017-10-13T23:14:02Z")
> [@Bricker](#): > > If there is some common ground shared by the 5 who joined in the result overturning, then that, and only that (the ‘narrowest ground’) is the holding of the Court. If there is literally no common ground apart from agreement on the result, then the “precedent,” is simply that the result is overturned and no further precedent is set. This hypothetic seems rather weird in that presumably the 4 dissenters believed that there were no 4th or 5th amendment issues with the lower court’s judgment, which means that a majority of the court believes that there is no 4th amendment grounds for overturning the issue and a (different) majority of the court believes that there is no 5th amendment grounds for overturning. So if a different case raised only the issue on the basis of one of the two amendments, the same court could issue a case setting a precedent that would be against the decision in the original case. ---
**Author:** ![dstarfire](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/dstarfire/32/5762_2.png) [@dstarfire](https://boards.straightdope.com/u/dstarfire)\ **Post date:** [October 14, 2017, 1:39am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/19 "2017-10-14T01:39:55Z")
AIUI precedent clarifies the definition of the words and phrases of a law or statute (and, possibly, how they apply in a given scenario). For example, a recent Federal appeals court ruling hinged on the definition of “regular and established place of business”. (re: Cray inc, if you’re curious) ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [October 14, 2017, 1:50am UTC](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701/20 "2017-10-14T01:50:51Z")
What happens if there are two vacant seats on the court or if two Justices recuse themselves and it’s a 4-3 decision? Is that considered a precedent-setting majority? [Next page](https://boards.straightdope.com/t/supreme-court-split-majority-decision/798701.md?page=2)