The Precedential Effects of the Supreme Court's Emergency Stays

Abstract

This paper examines the possible precedential effects of the Supreme Court's emergency stay decisions. We argue that the Court’s stays are sortable into the following categories, representing a spectrum of precedential force: those that have little value for lower courts, those that are useful as persuasive authority, and those that may have considerably less precedential value than an opinion on the merits, but are nonetheless authoritative with respect to future cases considering the same legal questions. The first category includes denials of stay applications and decisions issued by a single Justice without any opinion. Stays with persuasive authority include those granted by a single Justice who issues an opinion explaining his or her views on the merits of the case. Concurrences in, dissents from, and statements respecting a decision to grant a stay also fall into this second category. The third category includes stay grants in which a majority of the Supreme Court has clearly indicated that the applicant is likely to succeed on the merits of the question(s) presented. The paper presents our reasons for this categorization and offers examples of the stays we believe belong in each group.