Hughes v. United States (US Supreme Court)

This case involves the application of the Supreme Court’s decision in Marks v. United States, 430 U.S. 188 (1977), which provides a framework for discerning the holding of a split Supreme Court decision, to Freeman v. United States, 564 U.S. 522 (2011), a split decision involving federal sentencing. Petitioner argues that when the majority comprises a plurality opinion and a concurring opinion, neither of which overlaps with the reasoning of the other, there is no holding, leaving the court free to decide the issue in the first instance.

We filed an amicus brief in support of the petitioner on behalf of a number of trade associations. Our brief discusses how the Supreme Court’s decision in Marks applies to another split decision, Rapanos v. United States, 547 U.S. 715 (2006), which involves federal jurisdiction under the Clean Water Act. The brief argues that neither the plurality nor the concurrence in Rapanos constitutes the holding of the Court; that courts may not look to Justice Stevens’s dissenting opinion in Rapanos; and that courts should instead look for overlapping results and points of agreement between the opinions in the majority, or simply treat the opinions as persuasive authority.