Interim Precedent

What is the Effect of a SCOTUS Stay?

The Supreme Court’s shadow-emergency-interim-irregular docket is once again in the spotlight. One salient question is this: what is the precedential effect of an interim ruling of the Supreme Court? For example, when the Court stays a lower court injunction, when or how is that stay decision precedential?

By far the most pertinent comment from the Court itself arose in Boyle, an interim ruling on the president’s removal power from July. The Court there asserted, without explanation or citation, the following: “Although our interim orders are not conclusive as to the merits, they inform how a court should exercise its equitable discretion in like cases.” The Court appeared to think that the district court’s failure to heed an interim ruling amounted to error.

We may assume that Boyle, itself an interim decision, had the ability to set precedent regarding the precedential force of interim decisions. But even if so, what does or should that sentence from Boyle mean?

Later, in NIH, Justice Gorsuch (joined by Justice Kavanaugh) issued a partial concurrence that was also a partial dissent. That separate opinion, which I have previously criticized on other grounds, attempted to clarify the precedential status of interim rulings and insisted that they amounted to “direction” that lower courts had to “follow.” I include the most relevant passage toward the end of this post. For now, suffice it to say that Justice Gorsuch’s attempted clarification, in addition to being the view of only two justices, was not pellucidly clear.

Here are five—really, five and a half—main options that I see, drawing on conversations with several people better informed than myself.

1. Interim decisions bind other interim decisions, but not final decisions. When an interim ruling holds that a proposition is “likely,” then all courts facing likelihood inquiries must follow the justices’ lead. The main instances of likelihood inquiries involve TROs, preliminary injunctions, and stays, all of which turn largely on whether the claimant has shown a “likelihood of success.” But because such a holding is formally limited to a question of likelihood, it may not control final decisions rendered pursuant to a de novo standard of review. Thus, when either a lower court or the Supreme Court reaches a final judgment, it is free to reach a conclusion at odds with any contrary interim precedents. In a removal case like Boyle, for instance, the lower court’s final judgment might be governed by preexisting plenary rulings from the Court, such as Humphrey’s Executor, rather than any interim rulings. This view finds support not only in the likelihood standard of review, but also in Boyle’s sharp distinction between (i) “the merits” and (ii) “equitable discretion” in rulings “like” the Court’s “interim” decision.

Importantly, the foregoing logic may reach beyond the Court’s interim rulings and so encompass some plenary decisions. Take Mahmoud, a plenary ruling on the Free Exercise Clause that reviewed a preliminary injunction and so applied a “likelihood” standard. Given the logic underlying Option #1, perhaps Mahmoud did not establish any binding precedent as to final judgments. To draw out that possibility, we might broaden Option #1 so as to generate the following Option #1*: Likelihood decisions bind other likelihood decisions, but not de novo decisions.

2. Interim decisions are fully binding only as to other interim decisions of the same type. As we have seen, Option #1 posited that an interim “likelihood” holding might bind all related interim inquiries, so that a stay would bind stays and preliminary injunctions alike. But perhaps there is greater nuance to each form of relief. To wit, a stay typically operates on another, preexisting form of equitable relief, such as an injunction. The result is a duplicated “likelihood” inquiry: is it likely that the stay claimant will prevail in challenging a preliminary injunction issued under a separate likelihood inquiry? On this view, a stay from the Court would yield precedent that controls other stays, but wouldn’t control TROs or preliminary injunctions. This idea finds support in Boyle’s reference to “like cases.”

3. Interim decisions regarding equity bind similar exercises of equity, but not relief at law. Equitable remedies are generally thought to be discretionary, whereas remedies at law are not. And equitable exercises of judicial discretion are (on this view) what interim rulings precedentially bind. This line of thought can explain why the Court separates “interim” orders from the “merits” of any claim, which seemingly are not passed on at all. An interim ruling from the Court would then constrain not only preliminary relief in the lower court, but also any final judgments that issue injunctions. By contrast, the Court’s interim rulings would not reach damages relief or other remediation at law. This view finds support in Boyle’s exclusive focus on “how a court should exercise its equitable discretion.” Also suggesting a merits/equity division, Boyle went on to quote from Wilcox, a prior interim order on removal; but Boyle quoted only what Wilcox had to say about equity—without quoting Wilcox’s comments on the merits.

4. Interim decisions bind to the extent that they reflect the Supreme Court’s considered judgment on a legal matter. An intuitive view of precedent maintains that an apex court’s well-considered judgments have strong precedential effect; by contrast, a lack of considered judgment has little to no precedential force. That view honors the Court’s decisional process, serves predictive interests by attending to how the justices are likely to rule, and parallels existing legal rules, such as that summary affirmances have reduced precedential force while cert denials have none. This approach would treat both CASA (a stay case) and Mahmoud (a preliminary injunction case) as fully precedential as to their main legal conclusions, even though both applied a “likelihood” of success standard. After all, both of those decisions followed full dress briefing and oral argument; and both yielded conventional majority opinions. By contrast, the precedential force of entirely unexplained summary interim decisions, like Vasquez Perdomo, would be marginal. Rulings featuring clipped deliberation and explanation might lie in-between. This view finds support in a sentence from Boyle (immediately following the one quoted earlier) in which the Court noted: “The stay we issued in Wilcox [again, an earlier interim ruling on removal] reflected ‘our judgment . . .’” regarding a particular, explicitly stated legal point.

5. Interim decisions are fully binding precedents, but only to the extent that they rest on decisively espoused principles of law. When issuing interim relief such as a stay, the Court is free to rest entirely on what it views as “likely” correct, without committing itself to anything more definite. On the way to finding that a particular claim is “likely” to succeed, however, the justices may sometimes both reach and express a firm view regarding a legal proposition. In other words, the Court may reason along the following lines: “The claimants are likely to succeed on the merits because their claim turns on Proposition X, and that proposition is definitely true.” Because the firm view of the law (Proposition X) is the basis for the Court’s likelihood decision, that view could be understood as part of the ruling’s ratio decidendi—and therefore as fully precedential. In CASA, for example, the Court applied a “likelihood” inquiry to issue a stay, but it also seemed to base that ruling on a firm view that federal courts lack statutory authority to issue universal relief. Though it stems from different logic, this view will in practice resemble Option #4; and it too finds support in Boyle’s invocation of Wilcox’s reasoning.

While I hesitate to add further complexity, I cannot refrain from posing another question: Could a single interim decision have different kinds of precedential effect for different kinds of ruling? Take Option #1, which (again) views interim rulings as binding only on other interim rulings, but not on final ones. Could that approach allow for a lesser, non-binding role for interim rulings with respect to final judgments?

Perhaps an interim ruling is both binding precedent with respect to other interim decisions (again, Option #1) and persuasive precedent as to final judgments (call it Option #1+). That two-tier approach might be defended on the ground that, while a “likelihood” holding cannot control the ultimate merits, it is surely at least relevant to how a case ought eventually to be decided. Moreover, this line of thought picks up on Boyle’s suggestion that interim rulings “inform” what other courts do. The broad term “inform” seems to stretch beyond binding force to encompass softer, more flexible modes of precedent.

The precedential force of Option #1+ might be a bit stronger than simple persuasiveness. As Fred Schauer argued, persuasive precedent can be viewed as optional—that is, as an authority that a court may or may not invoke. An interim ruling on likelihood of success, by contrast, may have to be considered (even if ultimately rejected) before a final judgment issues. This stronger form of persuasive precedent might be labeled “presumptive precedent.”

These “+” possibilities can be added to supplement any of the above options. That is, an interim ruling may generate optional or presumptive precedent with respect to: interim relief of another type (Option #2+); relief at law (Option #3+); matters that the Court did not carefully consider (Option #4+); and legal propositions that were not firmly declared to be the basis for interim relief (Option #5+).

One might even think that interim orders create only presumptive precedent. On this view, interim orders always “inform” (Boyle) but never bind. For instance, we might reject Option #1 in favor of thinking that an interim ruling is only presumptive precedent (or otherwise persuasive) even with respect to interim decisions. We can label this Option #1-minus.

As promised, here is the relevant discussion in Justice Gorsuch’s NIH opinion, which Justice Kavanaugh joined (with some citation material omitted):

In casting California [an interim ruling from the Court] aside, the district court stressed that the Court there granted only interim relief pending appeal and a writ of certiorari and did not issue a final judgment on the merits. [ ] True enough. But this Court often addresses requests for interim relief—sometimes pending a writ of certiorari, as in California, and sometimes after a writ of certiorari is granted, as in Mahmoud v. Taylor, 606 U. S. ___ (2025), and Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). And either way, when this Court issues a decision, it constitutes a precedent that commands respect in lower courts.

Of course, decisions regarding interim relief are not necessarily “conclusive as to the merits” because further litigation may follow. Trump v. Boyle, 606 U. S. ___ (2025) (slip op., at 1). But regardless of a decision’s procedural posture, its “reasoning—its ratio decidendi”—carries precedential weight in “future cases.” Ramos v. Louisiana, 590 U. S. 83, 104 (2020) (opinion of GORSUCH, J.); see also Bucklew v. Precythe, 587 U. S. 119, 136 (2019) (“[J]ust as binding as [a] holding is the reasoning underlying it”). And California’s reasoning was clear. There, the Court explained that “the APA’s limited waiver of immunity does not extend to orders to enforce a contractual obligation to pay money . . . . Instead, the Tucker Act grants the Court of Federal Claims jurisdiction over suits based on any express or implied contract with the United States.” 604 U. S., at ___ (slip op., at 2) [ ]. That reasoning binds lower courts as a matter of vertical stare decisis.

Moreover, even probabilistic holdings—such as California’s top-line conclusion that “the Government is likely to succeed in showing the District Court lacked jurisdiction to order the payment of money under the APA,” id., at ___–___ (slip op., at 1–2)—must “inform how a [lower] court” proceeds “in like cases,’’ Boyle, 606 U. S., at ___ (slip op., at 1).

Most if not all the foregoing options find some support in Justice Gorsuch’s discussion. For example, he talks about the likelihood standard and “probabilistic holdings” (see Option #1), the centrality of “clear” precedential “reasoning” as well as of the “ratio decidendi” (see Options #4 and #5), the link between interim rulings like California and plenary rulings like Mahmoud (see Option #1*), and the idea of commanding or binding as compared with merely informing (see the “+” and even minus options). Clearly, Justice Gorsuch thinks that interim precedent both exists and matters. But how, exactly—and why?

All this is to say that the nature of interim precedent remains quite unclear.