Plurality Opinion vs. Majority Opinion: What's the Difference?

Count the Justices who joined the opinion, not the Justices who agreed with the result. A majority opinion is one joined in full by more than half of the Justices participating. With all nine sitting, that is five. If two Justices are recused, seven participate and four is a majority. A Justice who writes "concurring in the judgment" is not part of the majority; a Justice who joins the opinion and also writes a separate concurrence still counts toward the majority.

Watch for partial joins. The Court frequently issues an opinion that is a majority as to Parts I and II and only a plurality as to Part III. The syllabus and the vote line at the top of the opinion tell you exactly who joined what. Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), is the classic example: portions of the joint opinion commanded five votes, and other portions did not. When you brief a case, write down the join line before you write down the rule.

Also count carefully in cases where a Justice concurs "in part and in the judgment." That Justice supports the outcome but has withheld a vote from some of the reasoning, which can silently convert what looks like a majority section into a plurality section.

The judgment binds. The reasoning does not, at least not automatically. If five Justices agree the petitioner wins, the petitioner wins, and the case is disposed of on remand accordingly. But if only four Justices signed the opinion explaining why, no single rationale has been adopted by the Court, and a lower court is not obligated to apply that rationale as such.

That does not make a plurality worthless. Lower courts treat plurality reasoning as strongly persuasive, and the Court itself often later adopts it in a subsequent majority opinion. Justice Powell's solo opinion in Regents of the University of California v. Bakke, 438 U.S. 265 (1978), governed university admissions law for a quarter century before the Court later engaged with it directly. The practical question in litigation is almost never "is this binding?" in the abstract; it is "what rule does this fragmented decision generate?"

You apply Marks. The Court held that "[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks v. United States, 430 U.S. 188, 193 (1977). The intuition is that the narrowest position is the one that at least a majority would agree with, because the broader opinions necessarily accept everything the narrow one does.

Rapanos v. United States, 547 U.S. 715 (2006), is the standard classroom illustration. Four Justices adopted Justice Scalia's test for waters covered by the Clean Water Act, four dissented, and Justice Kennedy alone concurred in the judgment on a "significant nexus" theory. Most lower courts treated Kennedy's opinion as controlling under Marks, some allowed jurisdiction under either test, and the resulting mess drove decades of litigation. Van Orden v. Perry, 545 U.S. 677 (2005), presents the same shape: a Rehnquist plurality on Ten Commandments displays with Justice Breyer concurring in the judgment on his own reasoning.

Sometimes Marks produces something genuinely strange. In Apodaca v. Oregon, 406 U.S. 404 (1972), four Justices thought the Sixth Amendment permitted nonunanimous verdicts, four thought it did not, and Justice Powell alone thought the requirement applied to the federal government but not the states. His solo view controlled state practice for nearly fifty years, until Ramos v. Louisiana, 140 S. Ct. 1390 (2020), overruled it.

Because "narrowest grounds" is ambiguous, and the circuits have not converged. The dominant approach requires that the concurrence be a logical subset of the plurality: the concurrence controls only if every case decided under it would also be decided the same way under the plurality's broader rule. The D.C. Circuit adopted that formulation en banc in King v. Palmer, 950 F.2d 771 (D.C. Cir. 1991), and refuses to apply Marks when the opinions rest on genuinely different, non-nesting rationales. Under that view, if the reasoning does not nest, the fragmented decision has no controlling rationale at all and only the judgment survives.

A competing, results-based approach asks which opinion would produce the narrowest set of outcomes, whether or not the reasoning nests. A third approach counts the plurality and dissent together where their reasoning overlaps, which most courts reject because dissenters did not concur in the judgment and Marks by its terms speaks only to those who did.

The Supreme Court has noticed the problem and declined to fix it. It granted certiorari in Hughes v. United States, 138 S. Ct. 1765 (2018), partly to clarify how Marks applies to the fractured decision in Freeman v. United States, 564 U.S. 522 (2011), then resolved the underlying sentencing question on the merits and left Marks alone. When you write about a plurality, check your circuit's stated approach first; the answer to "what is the holding" is jurisdiction-dependent in a real way.

Use a weight-of-authority parenthetical under Bluebook Rule 10.6.1, placed after the date parenthetical. The standard forms are (plurality opinion), (opinion of Powell, J.), (Kennedy, J., concurring in the judgment), (per curiam), and (en banc). Failing to flag a plurality is a substantive error, not a formatting nit: a reader who assumes you cited a majority will read your brief as claiming binding authority you do not have.

Examples of correct form:

A per curiam opinion is unsigned and issued "by the court." It can be unanimous, a majority, or itself fragmented; per curiam describes authorship, not vote count, and a per curiam joined by a majority is binding precedent.

A concurrence in the judgment agrees with the outcome only. A concurrence simpliciter joins the majority opinion and adds something. Only the latter counts toward the five.

An affirmance by an equally divided Court, which happens after a recusal or vacancy, affirms the judgment below with no precedential effect anywhere, including in the circuit that issued it.

Seriatim opinions, where each judge writes separately with no opinion of the court, are the historical ancestor of this problem and still appear in some state high courts. Some state supreme courts also have their own vote rules and their own analogues to Marks, so verify state practice rather than assuming the federal framework carries over.

On a doctrinal exam, the payoff is precision about what a case established. If the professor assigned a fragmented decision, the expected answer usually identifies the split, applies Marks, states the controlling rule, and then notes the instability. Writing "the Court held X" when four Justices said X is the mistake the question is designed to catch.

In a memo or brief, plurality status changes your argument structure. If the concurrence controls under Marks in your circuit, argue to that concurrence's test first and treat the plurality as supporting authority. If your circuit follows the logical-subset approach and the opinions do not nest, argue that the fragmented decision supplies no binding rule, then reason from the governing precedent that predates it.

In a note or seminar paper, fractured decisions are unusually productive subjects precisely because the doctrine is contested. Circuit splits over how to read a specific plurality are concrete, citable, and unresolved, which is what a publishable note needs.