Introduction
Imagine for a moment:
Scenario 1. A controversial case is moving through the federal courts toward possible review by the U.S. Supreme Court. Along the way, a lower court issues a preliminary injunction that is well grounded in existing precedent. The Supreme Court issues an emergency order staying that injunction, offering a brief explanation signaling that it might soon change the law. A year later, the Supreme Court grants certiorari and, in its eventual decision on the merits, does in fact overrule prior precedent.
Scenario 2. Same story. But contrary to the signal in its earlier emergency order, the Supreme Court’s decision on the merits actually reaffirms prior precedent.
Scenario 3. Same story. But the case never gets as far as a merits decision from the Supreme Court.
Now imagine the tricky questions faced by a lower court judge presiding over a parallel case. During that interim when the Supreme Court is signaling some interest in changing the law but has not yet done so through a decision on the merits,
what should this judge do? Should the Supreme Court’s emergency order be viewed as a sort of binding precedent? If not, does it carry information that the judge should still be expected to consider?
The difficulty is that this judge does not know how the story of the other case will end. What if the judge’s ruling is influenced by the Supreme Court’s signal—but then the Court’s merits decision goes the other way (Scenario 2)?
That is, what if the signal turns out to be wrong? Or what if the accuracy of the signal is never revealed (Scenario 3)?
Given these possibilities, should the judge just decide the case without regard to the signal?
The problem facing this judge brings new twists into our usual ways of thinking about Supreme Court precedent. It introduces a curious sort of judicial utterance, a guess about the future of the law—and yet a guess that cannot be dismissed as dicta, for it underpins an actual ruling. It also highlights a liminal moment in judicial time, an interim period during which the terrain of existing precedent has been unsettled—and yet no new precedent has been laid down.
Fresh thinking about precedent would be most welcome in untangling this knotty problem, and indeed a new resource is at hand. A rich and wide-ranging volume of forty essays, Philosophical Foundations of Precedent, has now been collected by Professors Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis.
Such a vast compilation defies a conventional book review. But what better way to honor the innovative spirit of these essays than to see how their insights fare in addressing a strange new phenomenon?
Our judge’s problem is illuminated, first off, by Professor Nina Varsava’s provocative book chapter.
Her argument begins with Professor Ronald Dworkin’s metaphor of the common law as a chain novel written by multiple authors in sequence, all of whom are trying to craft a coherent narrative. Her conceptually powerful point is that in serving this aim each author “should consider not only what has already been written before their turn to contribute but also what will be or is likely to be written subsequently.”
And in particular, an author who can already foresee a turn in the plot may wish to “foreshadow” it, thereby smoothing the path to those future chapters.
When the Supreme Court issues an emergency order that signals some interest in departing from precedent,
as if preparing the public for legal change, we might say it is thus “foreshadowing” the possible future of the law. We might even call the set of such rulings the Supreme Court’s “foreshadow docket.”
Upon noticing such foreshadowing by the high court, shouldn’t our lower court judge start ruling in ways that also anticipate the expected turn in the plot?
A ready counterpoint is found in Professor Richard Fallon’s book chapter. Elaborating on Professor H.L.A. Hart’s notions of “rules of recognition” and “rules of change,” his chapter urges careful attention to how such rules differ across the layers of a judicial hierarchy.
At the Supreme Court, he observes, a present belief that prior precedent was wrongly decided implies a permission to either adhere to the precedent or else to change it. But such an option is the sole province of the Supreme Court. By contrast, “the rule in the lower courts is settled and categorical: lower courts must adhere to the Supreme Court’s . . . [precedents], however demonstrably erroneous they may be, until the Court reverses those decisions.”
As the chapter emphasizes, the Supreme Court has said to the lower courts: Don’t get out ahead of us.
Now we start to see more clearly the conundrum that our judge faces. What would it mean to look ahead to the future, guided by the Supreme Court’s foreshadowing, if the judge’s rulings must also remain firmly rooted in the past?
We can begin by eliminating the quickest way out of this dilemma, which would be to assume that such an emergency ruling does not merely foreshadow a future change in the law, but rather is a change in the law, creating new binding precedent in the conventional sense. This view seems untenable under the law of precedent,
and Part I works through why, focusing on the contrast between emergency rulings and certiorari review: The very purpose of an emergency stay or injunction is to set a temporary holding pattern for the parties so that the contested legal question need not be settled right away.
Such a ruling turns upon law-prediction rather than law-declaration, and this guess can be modified at any time by the issuing court. It is no more “the law” than a draft opinion would be.
Indeed, every emergency ruling anticipates its own erasure.
Even in the absence of stare decisis effect, however, do any lower court decisions nonetheless entail taking note of the Supreme Court’s foreshadowing?
It turns out that for particular stays and injunctions, the lower court’s task seems to require predicting its own future merits ruling—and hence guessing at a future state of the law. If the Justices have also expressed such a guess in an emergency ruling in a parallel case, must not this lower court take heed? Not necessarily, as Part II details—not unless the lower court expects that by the time of its own merits ruling, the Justices will already have changed the law through a merits ruling of their own.
Even then, a simpler judicial approach that avoids any such guesswork may be available to the lower court.
The informational value of the Supreme Court’s signal, in any event, is capped by a basic constraint: An earlier judicial guess made at a lower threshold of confidence does not supply the answer for a later guess (on the same question) that requires a higher threshold of confidence. This limitation matters because stays and temporary injunctions throughout the judiciary are governed by standards for relief that set varying thresholds of confidence (such as “fair prospect”) for the guesswork required.
The role of confidence thresholds and the possibility of mistaken guesses remain novelties in the theoretical study of precedent, which has yet to focus much attention on judicial utterances that are guesses rather than declarations of law. Part III ventures into this inquiry, asking: What would it mean to deem one court’s guess about the future of the law to be “binding” on another court’s guess? That would not be stare decisis, of course. No new law is decisis yet—only divinatis. But could there be such a thing as stare divinatis? How would it work? And when, if ever, would it be needed?
The practical dilemma faced by our judge thus presents an occasion to think afresh on foundational questions about precedent. For a theorist of precedent, the foreshadow docket must seem like a bizarre thought experiment come to life. Theory has something new here to ponder and may well have something new to learn.