Philosophical Foundations of Precedent
Edited by Timothy Endicott, Hafsteinn Dan Kristjánsson & Sebastian
Lewis. New York: Oxford University Press, 2023. Pp. 576. $180.00.

Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law—and what if that guess is wrong?

Yet for a lower court ruling on a temporary stay or injunction, the task seems to call for a guess about a future decision and hence a future state of the law. And if the Justices have already made such a guess in a parallel case, doesn’t the lower court have the answer it needs?

Not necessarily, this analysis shows. It looks closely at the architecture of stays and injunctions in the federal courts, while drawing upon ideas presented in a rich new compilation of essays, Philosophical Foundations of Precedent. Intriguing questions for theory arise, in turn. For instance, should an earlier judicial guess ever be deemed binding on a later guess? That would not be stare decisis, of course—but could there be such a thing as stare divinatis?

The full text of this Book Review can be found by clicking the PDF link to the left.


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, 1 Consider Justice Elena Kagan’s observation, joined by Justice Stephen Breyer and Justice Sonia Sotomayor, about the Supreme Court’s emergency order in the recent Alabama redistricting case, Merrill v. Milligan:
“Today’s decision is one more in a disconcertingly long line of cases in which this Court uses its shadow docket to signal or make changes in the law, without anything approaching full briefing and argument. Here, the District Court applied established legal principles to an extensive evidentiary record. Its reasoning was careful—indeed, exhaustive—and justified in every respect. To reverse that decision requires upsetting the way Section 2 plaintiffs have for decades—and in line with our caselaw—proved vote-dilution claims. That is a serious matter, which cannot properly occur without thorough consideration. Yet today the Court skips that step, staying the District Court’s order based on the untested and unexplained view that the law needs to change.”
142 S. Ct. 879, 889 (2022) (Kagan, J., dissenting from grant of applications for stays). The concurrence by Justice Brett Kavanaugh, joined by Justice Samuel Alito, disavows signaling about the merits; however, it does address the merits-related “fair prospect” standard for relief. See id. at 881–82 & n.2 (Kavanaugh, J., concurring in grant of applications for stays) (“Even under the ordinary stay standard outside the election context, the State has at least a fair prospect of success on appeal—as do the plaintiffs, for that matter.”). Reading the signal in this order is complicated further by the apparent role of the Purcell principle and uncertainty about how it works. See id. at 880–82; Purcell v. Gonzalez, 549 U.S. 1, 4–6 (2006). In its eventual merits ruling, the Supreme Court upheld the lower court injunction that its emergency order had earlier blocked. See Allen v. Milligan, 143 S. Ct. 1487, 1502 (2023).
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)? 2 See, e.g., Amy Howe, Divided Court Allows Biden to End Trump’s “Remain in Mexico” Asylum Policy, SCOTUSblog (June 30, 2022), [] (describing a “major victory” for the government in a Supreme Court merits ruling in Biden v. Texas, one of the cases about the controversial Migrant Protection Protocol, after an earlier emergency ruling against the government); Amy Howe, Texas and Louisiana Lack Right to Challenge Biden Immigration Policy, Court Rules, SCOTUSblog (June 23, 2023), [] (describing another “major victory” for the government in a Supreme Court merits ruling in United States v. Texas, an immigration policy case about prioritization, after an earlier emergency ruling against the government); see also Steve Vladeck, Emergency Applications and the Merits, One First (June 12, 2023), [] (discussing these examples as among “the meaningful (and growing) number of recent examples of cases in which the justices’ ruling at the emergency application stage did not presage their ruling on the merits” (emphasis omitted)). That is, what if the signal turns out to be wrong? Or what if the accuracy of the signal is never revealed (Scenario 3)? 3 See, e.g., Amy Howe, Court Dismisses Title 42 Case, SCOTUSblog (May 18, 2023), [] (noting the Supreme Court’s dismissal of an immigration policy case as moot after having granted an emergency stay and set an expedited schedule for briefing and argument); Amy Howe, Justices Take Immigration Cases Off February Calendar, SCOTUSblog (Feb. 3, 2021), [] (noting mootness and dismissal of a different immigration policy case concerning the so-called “Remain in Mexico” asylum program). 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. 4 Philosophical Foundations of Precedent (Timothy Endicott, Hafsteinn Dan Kristjánsson & Sebastian Lewis eds., 2023). The book is fondly dedicated to the memory of Professor Joseph Raz. 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. 5 Nina Varsava, The Gravitational Force of Future Decisions, in Philosophical Foundations of Precedent, supra note 4, at 281, 286–87. 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.” 6 Id. The reason is that authors “ought to view their own contribution in the context of the novel as a whole, and not only in the context of the novel so far.” Id. 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. 7 As Professor Varsava puts it, vividly: “[S]uppose further that you know that your successor novelists have bleeding hearts and will ultimately seek to redeem Scrooge regardless of the content of your section. That reality ought to inform your contribution. Perhaps you should foreshadow Scrooge’s redemption—as in fact early sections of A Christmas Carol do . . . .” Id. (citing Charles Dickens, The Illustrated Christmas Carol 32 (200th anniv. ed., SeaWolf Press 2020) (1843)). She continues: “In so doing, you would construct a sort of bridge between the cold, miserly, and mean Scrooge we see in the first pages of the novella and the warm, generous, and kind Scrooge that you predict we will see by the end.” Id.

When the Supreme Court issues an emergency order that signals some interest in departing from precedent, 8 As with preliminary injunctions or stays pending appeal ordered by the lower courts, the Supreme Court’s emergency orders are a form of temporary relief that sets a holding pattern for the parties as litigation continues. The standards for such relief, though varied, all call upon the issuing court to guess at the requesting party’s eventual chances of success on the merits, which in turn would seem to entail predicting what the governing law will be at the time of that future merits ruling. For examples of such standards for relief, see infra note 105. 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.” 9 Many emergency rulings from the Supreme Court do not signal any future change in the law, and the present analysis is not concerned with those. Emergency rulings such as stays and temporary injunctions are a subset of a much broader range of orders and rulings by the Supreme Court that do not undergo the standard merits process wherein cases are granted certiorari, briefed and orally argued, and decided in full-dress opinions disclosing the votes and views of individual Justices. For canonical commentary, see generally Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023) [hereinafter Vladeck, Shadow Docket]; William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1 (2015).

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? 10 Varsava, supra note 5, at 292 (“A higher court might decide some type of case in a particular way in the future regardless of how lower courts decide similar cases today. For the sake of equity, then, lower courts ought to predict and follow the higher court’s future decisions.”). 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. 11 See Richard H. Fallon, Jr., Constitutionally Erroneous Precedent as a Window on Judicial Law-Making in the US Legal System, in Philosophical Foundations of Precedent, supra note 4, at 405, 406–17, 413 (“The discontinuity between the Supreme Court and lower courts illustrates the need . . . for a friendly amendment to Hart’s account of the rule of recognition: it should be emphasized that different officials, including the judges of different courts, can be subject to different rules of recognition.”). To be clear, Professor Fallon’s and Professor Varsava’s chapters are presented in the book as independent contri­butions, not as responses to each other. 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.” 12 Id. at 412. For further elaboration of the permissive and prohibitory aspects of precedent, see generally Richard M. Re, Precedent as Permission, 99 Tex. L. Rev. 907 (2021). As the chapter emphasizes, the Supreme Court has said to the lower courts: Don’t get out ahead of us. 13 See, e.g., Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam) (chastising the lower court for partial implicit overruling and reiterating that “[i]t is this Court’s prerogative alone to overrule one of its precedents” (internal quotation marks omitted) (quoting United States v. Hatter, 532 U.S. 557, 567 (2001))); Am. Tradition P’ship v. Bullock, 565 U.S. 1187, 1188 (2012) (Ginsburg, J., respecting grant of application for stay) (“Because lower courts are bound to follow this Court’s decision until they are withdrawn or modified, however, I vote to grant the stay.” (citation omitted)); Hohn v. United States, 524 U.S. 236, 252–53 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); Agostini v. Felton, 521 U.S. 203, 237–38 (1997) (“We do not acknowledge, and we do not hold, that other courts should conclude our more recent cases have, by implication, overruled an earlier precedent. . . . [The trial court was] correct to recognize that the motion had to be denied unless and until this Court reinterpreted the binding precedent.”); Rodriguez de Quijas v. Shearson, 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”).

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? 14 Professor Lawrence Solum has argued: “Predictions about what the Supreme Court will do are not law and deciding on the basis of such prediction is improper. The shadow docket, by encouraging this predictive approach, has resulted in a serious breach of judicial duty by the lower courts.” Mike Fox, Supreme Court Shadow Docket Leaves Reasoning in the Dark, Professors Say, Univ. Va. L. Sch. (Sept. 22, 2021), https:// [] (quoting Professor Solum). Other scholars, however, have suggested that it may be permissible or even useful—for example, in resolving novel questions or ambiguities—for lower courts to rule in alignment with certain signals from the Justices when doing so does not overrule or depart from existing Supreme Court precedent. See, e.g., Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 943–45, 950 (2016) [hereinafter Re, Narrowing Precedent] (proposing a “signals model” in which lower courts attend to signals that come from a majority of the Supreme Court and are reasonably consistent with conventional precedent, including stay decisions and other preliminary rulings).

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, 15 See infra Part I. As of now, there seems to be no Supreme Court decision fully addressing this question, though lately a number of Justices have issued statements emphasizing that emergency rulings are not decisions on the merits and indicating an aversion to even allowing “previews” of the merits through emergency rulings. See infra notes 41, 64. In the voice of the Court, there seems to be only one brief reference to stay denials. Ind. State Police Pension Tr. v. Chrysler LLC, 556 U.S. 960, 960 (2009) (per curiam) (“A denial of a stay is not a decision on the merits of the underlying legal issues.”). 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. 16 One potential source of confusion should be cleared up at the outset: Sometimes a higher court will exercise appellate review over a preliminary injunction or a stay by a lower court and, in doing so, choose to settle the contested question of law (even when reviewing for abuse of discretion rather than de novo). See infra note 25. That is not the same thing as the higher court deciding whether to issue a stay or temporary injunction itself, though at times these functions will coincide. 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. 17 Accordingly, Part I also argues that the Justices should make amply clear that if they ever wished to lay down binding precedent through a case arising in an emergency posture, they would do so by granting certiorari (possibly certiorari before judgment, as recently seen) and setting the case for briefing and oral argument (possibly on an expedited schedule). See infra section I.B. 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? 18 The present analysis is limited to whether taking heed of the foreshadowing in the Supreme Court’s emergency rulings is arguably required by the task at hand for the lower court. It does not address whether lower courts should do so, as a matter of prudence or good judging, even when doing so is not required. It also does not address other sorts of signals, such as questions asked at oral argument, speeches by the Justices, and the like. For a rich discussion of whether lower courts can and should attend to this broader range of signals, see Re, Narrowing Precedent, supra note 14, at 943–45, 950. For empirical research about lower courts following certain kinds of signals, see, e.g., Thomas B. Bennett, Barry Friedman, Andrew D. Martin & Susan Navarro Smelcer, Divide & Concur: Separate Opinions & Legal Change, 103 Cornell L. Rev. 817, 820–22 (2018) (showing that lower courts often give weight to a category of concurrences that should not be seen as controlling opinions); David Klein & Neal Devins, Dicta, Schmicta: Theory Versus Practice in Lower Court Decision Making, 54 Wm. & Mary L. Rev. 2021, 2041 (2013) (showing that lower courts give great weight to dicta in higher court opinions). 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. 19 As Part II observes, a second, distinct situation in which the lower court may need to take heed of the Supreme Court’s signal is in ruling on a stay pending certiorari (as opposed to pending appeal). Note that initial consideration by a lower court is typically required before the Supreme Court itself will consider a request for emergency relief pending certiorari. See Sup. Ct. R. 23 (“Except in the most extraordinary circumstances, an application for a stay will not be entertained unless the relief requested was first sought in the appropriate court or courts below or from a judge or judges thereof.”). Even then, a simpler judicial approach that avoids any such guess­work may be available to the lower court. 20 See infra section II.B.4.

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. 21 See infra section III.A. For examples of such standards for relief, see infra note 105. As of now, however, the meanings of these standards in practice seem to be highly fluid and inconsistent—making it hard to know whether an earlier court’s guess was made at a higher or lower threshold of confidence than is required for a later court’s guess. See infra notes 105–107, 110.

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.