By David Post over at the Volokh Conspiracy. The comments are all very interesting as well.
UPDATE: One commenter notes:
You guys are really misusing the Marks “narrower†rule. The Marks rule applies in the following situation:
Plurality announces a broad rule. Concurrence says “no, it shouldn’t be that broad– I agree with the result in this case, but would not extend it any furtherâ€. In that situation, concurrence is controlling opinion.
It has no application to concurrence that says “I would also announce a broad rule, but I would do it using a completely different rationale that would create a brand new, expansive doctrine that this Court has previously declined to recognize.â€
It would not make any sense to recognize as the “controlling opinion†an opinion that takes a position that is going to be rejected 8–1 in the next case.
I suspect that will be correct in the end. I don’t think any lower courts are going to interpret Thomas’ opinion as controlling.