Marks v. U.S.

In Marks v. U.S., 430 U.S. 188 (1977), the Court explained that the views of 5 out of 9 justices do not establish a holding or precedent unless there is agreement by those five on the judgment also:

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When 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.

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This became an issue when Judge Brett Kavanaugh asserted that a majority of the U.S. Supreme Court suggested there is a compelling interest by the State to promote contraceptives. In fact, that was merely the view of four dissenting justices in the Hobby Lobby case, plus an ambiguous statement by Justice Anthony Kennedy in concurrence with the judgment. One cannot properly add the number of justices in dissent to the number of justices on the other side of the judgment to form a majority view.