Will the Marks Rule Inter Two of Justice Kennedy's Decisions from OT 2015?

Fisher II had a four-member majority. And at least one court read June Medical as overruling WWH in part.

At the end of Blue June, I wrote that the Roberts Court was slowly interring Justice Kennedy's ephemeral "Jurisprudence of Doubt." Specifically, the Court buried Boumediene, Whole Woman's Health, and Trinity Lutheran Footnote 3.

Now, an Eighth Circuit panel has used the so-called Marks Rule to find that there were five votes in June Medical to overrule the cost/benefit framework from Whole Woman's Health. In effect, WWH overruled Casey in part, and June Medical restored the Casey framework. When abortion caselaw reaches the Supreme Court, the Chief could credibly argue that part of WWH is already overruled, and that Casey is the governing precedent--only burdens, and not benefits will be considered. That sort of holding would be so confusing that no one would really understood what happened. I don't envy newspaper headline writers: Roberts Court upholds Roe and Casey, but finds that June Medical already overruled Whole Woman's Health.

I think the Chief will pull a similar move on affirmative action. Fisher II was decided by a seven-member Court. Justice Kagan recused, and Justice Scalia passed away. The majority had only four votes. In the Barnett/Blackman casebook, we pose the question of what is the value of a four-member majority? Not much. Indeed, Fisher II effectively expanded upon Grutter. In a way, Fisher II overruled part of Grutter by watering down the strict scrutiny standard. Likewise, according to the Chief, WWH made a similar move, and overruled part of Casey by strengthening the standard of review. Arguably, Casey and Grutter without taking any further action to overrule precedent.

In July, I hinted at this future:

In short, the Chief's judicial humility requires standing by decisions that he thinks lack humility. But only some of those decisions. Roberts will stand by Planned Parenthood v. Casey, but will not stand by Whole Woman's Health. In the future, I suspect he will stand by Grutter v. Bollinger, but will not stand by Fisher v. University of Texas, Austin II. And so on.

And the Marks rule could help the Chief reach that conclusion. I am not sure where Justice Gorsuch would fall with this question. His Ramos opinion raised some difficult questions about stare decisis and the Marks rule. See my post from April.