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The judge continued: “Accordingly, June Medical “Well, Marks has been the law for 40 years, and for
Services is appropriately considered to have been better or worse, it has had a big effect, I think, on what
decided without the need to apply or reaffirm the we have understood to be the jurisprudence of this
balancing test of Whole Woman’s Health, not that
Whole Woman’s Health and its balancing test have court and what the lower courts have understood to
been overruled.”
be our precedents and on the way in which justices of
The Supreme Court itself struggled with the ap-
plication of Marks as recently as last term in the this court go about doing their job. And if we abandon
case Ramos v. Louisiana, involving unanimous jury
verdicts in criminal trials. Writing for the court, anything like Marks, perhaps it requires—it certainly
Justice Neil Gorsuch rejected the dissenters’ sugges-
tion that a single justice’s opinion can overrule prior could benefit from some clarification and maybe some
precedents under the logic of Marks.
refinement—but if we abandon it completely, it could
In 2018, the justices were asked directly for guid-
ance on 4-1-4 decisions and Marks, but the court have pretty profound changes.”
As the government noted in its brief, there have
been more than 400 decisions of courts of appeals
applying Marks to over 100 Supreme Court deci-
sions over a 40-year period.
¦

was able to decided the sentencing issue in Hughes
v. United States without addressing the Marks issue. Marcia Coyle, based in Washington, covers the
During arguments in Hughes, Justice Samuel Ali- U.S. Supreme Court. Contact her at mcoyle@alm.
to Jr. said: com. On Twitter: @MarciaCoyle

Inside Virus-Era Supreme Court:
How Clerks Adjusted to New Reality

Michael Francisco clerked for By Tony Mauro
U.S. Supreme Court Justice
Neil Gorsuch until July 17 this
past term, an unusually late departure
caused by the scrambled court calen-
dar resulting from the pandemic.
A month later, on Aug. 17, Fran-
cisco began his new job as a partner
at McGuireWoods in Washington.
Francisco, formerly a private prac-
titioner and assistant Colorado
solicitor general, believes he is the
first Supreme Court clerk from the McGuireWoods offices in Washington, D.C.
last term to start a new law firm job. (Photo: Diego M. Radzinschi/ALM)

In a recent interview, Francisco described the un- way around the court, Francisco said. “We had the
usual twists and turns at the closed-down court. The first half to two-thirds of the term to get to know
term began last October like any other, and the clerk each other before the pandemic struck,” he said.
class got a chance to meet each other and learn their
¦ Continued on PAGE 20

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