Modeling Narrowest Grounds

133 Pages Posted: 8 Apr 2021 Last revised: 11 Jun 2021

See all articles by Maxwell L. Stearns

Maxwell L. Stearns

University of Maryland Francis King Carey School of Law

Date Written: March 31, 2021


The Supreme Court’s doctrinal statements governing nonmajority opinions demonstrate inconsistencies and confusion belied by the Justices’ behaviors modeling the narrowest grounds doctrine. And yet, lower courts are bound by stated doctrine, beginning with Marks v. United States, not rules of construction inferred from judicial conduct. This Article simplifies the narrowest grounds rule, reconciling doctrinal formulations with observed behaviors, avoiding the implicit command: “Watch what we do, not what we say.”

The two most recent cases considering Marks, Ramos v. Louisiana and Hughes v. United States, obfuscate three central features: (1) when the doctrine does or does not apply; (2) how it applies in proper cases; and (3) the precedential status of narrowest grounds opinions in the Supreme Court. Individual Supreme Court Justices capture discrete doctrinal elements; none convey a general theoretical understanding of the rule’s scope and meaning. In Ramos, the more recent of the two cases, six Justices invite lower courts to treat fractured Supreme Court cases as overruling past majority opinions. Three Justices convey that a single Justice cannot control on narrowest grounds. Two Justices treat narrowest grounds opinions as precedent in the Supreme Court. Each proposition is in tension with observed behaviors in other cases even in the Ramos term.

In June Medical Services v. Russo, Chief Justice Roberts alone issued a controlling narrowest grounds opinion, with none of the Justices raising a fuss. By declining to join Roberts’s opinion, the four liberal Justices ensured a fractured ruling, thereby preserving a broader 2016 abortion precedent. In Bostock v. Clayton County, the same cohort joined Justice Gorsuch’s strained textualist construction of Title VII, forging a majority embracing sexual orientation and transgender status within the meaning of sex. These rulings convey that a single Justice can control under Marks and that majority opinions hold precedential status beyond narrowest grounds decisions in the Supreme Court.

This Article models narrowest grounds, introducing the essential doctrinal element of dimensionality. A simple model, comporting with behavioral modeling by the Justices themselves, reveals that fractured cases with opinions aligned along one relevant dimension necessarily yield a narrowest grounds opinion, and fractured cases implicating more than one relevant dimension do not. The analysis unlocks each of the preceding questions and resolves several additional puzzles. Modeling narrowest grounds provides clarity for lawyers, scholars, and jurists, off and on the Supreme Court.

Keywords: Marks, narrowest grounds, precedent, split decisions, fractured panel, binding decision, plurality, dimensionality, game theory, matryoshka dolls

Suggested Citation

Stearns, Maxwell L., Modeling Narrowest Grounds (March 31, 2021). 89 George Washington Law Review 461 (2021), U of Maryland Legal Studies Research Paper No. 2021-05, Available at SSRN:

Maxwell L. Stearns (Contact Author)

University of Maryland Francis King Carey School of Law ( email )

500 West Baltimore Street
Baltimore, MD 21201-1786
United States

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