Regarding the precedential value of the interim docket I think (at least Gorsuch and Alito) basically feel the lower courts were taking the piss and being like -- we know you don't want us to reach this outcome but you said we need to leave the big precedent changes to you and technically you didn't change that. I suspect in the minds of those justices the lower courts who weren't playing ball were kinda engaged in malicious compliance.
I don't think that's how originalists or any kind of more legal formalist justice like our court should think about the law but I understand why it still might be hard to leave human emotions and practicality at the door even if you formally should.
"it appears that the Justices expect lower courts and litigants to treat interim docket decisions from the Supreme Court as functionally conclusive about the legal issues they decide."
How strong do we think this statement is? The strongest evidence seems to be the stay in Trump v. Boyle where at least 5 members said "Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases" and the 3 liberal justices vigorously dissented. Even justice Kavanaugh seemed to be implying this was a special case because the court was likely poised to narrow or overrule another scotus precedent.
Justices Alito and Gorsuch seem to have sent stronger signals that shadow docket orders are precedential, but couldn't it be the case that there are two votes for the strong precedent case, 3 votes for either when the court is likely to overrule another precedent or has a close analogy (e.g., Wilcox for Boyle), 1 undecided vote, and 3 votes for not precedential at least when doing so overrules actual scotus precedent? I.e. it could be the, admittedly weird, case that the court only thinks it's precedential and "functionally conclusive about the legal issues" if they think they are likely to overrule an actual reasoned precedent?
Regarding the precedential value of the interim docket I think (at least Gorsuch and Alito) basically feel the lower courts were taking the piss and being like -- we know you don't want us to reach this outcome but you said we need to leave the big precedent changes to you and technically you didn't change that. I suspect in the minds of those justices the lower courts who weren't playing ball were kinda engaged in malicious compliance.
I don't think that's how originalists or any kind of more legal formalist justice like our court should think about the law but I understand why it still might be hard to leave human emotions and practicality at the door even if you formally should.
"it appears that the Justices expect lower courts and litigants to treat interim docket decisions from the Supreme Court as functionally conclusive about the legal issues they decide."
How strong do we think this statement is? The strongest evidence seems to be the stay in Trump v. Boyle where at least 5 members said "Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases" and the 3 liberal justices vigorously dissented. Even justice Kavanaugh seemed to be implying this was a special case because the court was likely poised to narrow or overrule another scotus precedent.
Justices Alito and Gorsuch seem to have sent stronger signals that shadow docket orders are precedential, but couldn't it be the case that there are two votes for the strong precedent case, 3 votes for either when the court is likely to overrule another precedent or has a close analogy (e.g., Wilcox for Boyle), 1 undecided vote, and 3 votes for not precedential at least when doing so overrules actual scotus precedent? I.e. it could be the, admittedly weird, case that the court only thinks it's precedential and "functionally conclusive about the legal issues" if they think they are likely to overrule an actual reasoned precedent?
I was also thinking of the Court’s expectations that lower courts comply with its interim decision in CASA.