Plurality opinions are frequently a bane of appellate practitioners. When there are four justices in agreement as to the outcome of the case, but not the rationale, the plurality opinion can leave good authority, but no binding precedent. In fact, without four justices joining the rationale, a plurality decision does not represent a “holding of the court,” as seen in Fed. Home Loan Mtge. Corp. v. Schwartzwald. Schwartzwald actually relied on the Ohio Constitution, Article IV, Section 2(A):
“A majority of the supreme court shall be necessary to constitute a quorum or to render a judgment.”
A problem with plurality opinions has been that the Supreme Court did not previously provide textual signals within the opinion itself that the holding may be a plurality (and thus, not appropriate for citation as binding authority to lower courts).
A new phrase in recent opinions
It appears, however, the Supreme Court has started a new way of identifying plurality opinions. In three separate cases, issued within weeks of one another, the lead opinion begins with a justice’s name, followed by “announcing the judgment of the court.” These include State v. Jones (DeWine, J.), State v. Hubbard (Kennedy, J.) and State v. Jarvis (Kennedy, J.). Based on a search of Supreme Court decisions, the court has not used this terminology before.
If the use of this terminology is the beginning of a new trend, what are we to make of it? It is worth noting each of these decisions is a criminal case, two of which examined the same issue. In Hubbard and Jarvis, the plurality of the court (with Justice Kennedy authoring the lead opinion) resolved a conflict certified by an intermediate appellate court and examined whether the application of a state law violated the Retroactivity Clause of the Ohio Constitution. And in Jones, Justice DeWine explained that the intermediate appellate court incorrectly applied the standard of review when it reversed a conviction.
Whether the court will continue to use the phrase “announcing the judgment of the court” in the future, and in other contexts, remains to be seen. That said, the benefit of using the phrase is that the court (or the justice) clearly signals the lead opinion as a plurality decision and practitioners may appropriately consider whether or how to cite the decision in a filing with a court.