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More on the Voting Paradox in McDonald

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 further”. 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.”

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.

Comments are closed.

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