Debates over signaling, or unconventional precedential guidance to lower courts, played an important role in the same-sex marriage litigation leading up to Obergefell. Now, signaling is back thanks to religious accommodation litigation concerning the Affordable Care Act’s contraception mandate. Remarkably, lower courts have started to develop case law on whether and when signaling is appropriate.
A Supreme Court “signal” is transmitted when the justices act in their official capacities without establishing conventional precedent or resolving ultimate merits issues but while nonetheless indicating some aspect of how lower courts should decide cases. (For some of my prior posts on signaling, see here, here, and here.) In the past, lower court consideration of “signals” focused in part on the Supreme Court’s decision not to stay lower court rulings that had found constitutional rights to same-sex marriage. More recently, lower courts have started debating whether the Court sent a signal by granting unusual orders in religious accommodation cases.
Here is the Court’s entire order in a representative case, Zubik v. Burwell:
The Court furthermore orders: If the applicants ensure that the Secretary of Health and Human Services is in possession of all information necessary to verify applicants’ eligibility under 26 CFR § 54.9815–2713A(a) or 29 CFR § 2590.715–2713A(a) or 45 CFR § 147.131(b) (as applicable), respondents are enjoined from enforcing against the applicants challenged provisions of the Patient Protection and Affordable Care Act and related regulations pending final disposition of their petition for writ of certiorari.
Nothing in this interim order affects the ability of applicants’ or their organizations’ employees to obtain, without cost, the full range of FDA approved contraceptives. Nor does this order preclude the Government from relying on information provided by applicants, to the extent it considers it necessary, to facilitate the provision of full contraceptive coverage under the Act. See Wheaton College v. Burwell, 573 U.S. ––––, 134 S.Ct. 2806, 189 L.Ed.2d 856 (2014).
This order should not be construed as an expression of the Court’s views on the merits. Ibid.
There are two key features of this order. First, it provides an interim accommodation for religious beliefs. Second, the final sentence of the order emphasizes that it “should not be construed as an expression of the Court’s views on the merits.” These two features are in tension with one another. For the Court to provide even interim relief, it presumably considered the merits and in some way resolved them—even if only incompletely and provisionally—in favor of the religious claimants. Yet the Court clearly views its interim decision as being a far cry from a conventional merits ruling.
What are lower courts supposed to do with this? Perhaps the final sentence’s disclaimer means that the order (and the other orders like it) have no precedential value whatsoever. But that would be odd given the obvious fact that the Court has made some kind of decision on the claim at issue. Back when the Court decided Bush v. Gore, many critics were outraged that the majority arguably suggested that its decision was a proverbial ticket good for one day only. Likewise, some might recoil at the idea of zero-precedent stay orders, particularly when consistently issued over and over again.
But there is a proverbial third option. In a forthcoming article, I suggest that vertical precedent might operate on two tracks. The dominant track is conventional precedent emanating from full rulings on the merits. But there is also a supplemental track for signals, which provide guidance to lower courts in situations where conventional precedent is ambiguous. Signals are on the rise in part because of new technologies that enable a national culture of intensive Court-watching.
Some lower courts have started to treat the Court’s interim orders as signals. Indeed, they’ve even used that term. The most recent example comes from the Eighth Circuit’s decision last week in Sharpe Holdings v. HHS. Here’s the key passage:
[I]n Wheaton College, Little Sisters of the Poor, and Zubik, the Supreme Court approved a method of notice to HHS that is arguably less onerous than either Form 700 or HHS Notice yet permits the government to further its interests. Although the Court’s orders were not final rulings on the merits, they at the very least collectively constitute a signal that less restrictive means exist by which the government may further its interests. See Priests for Life, slip op. at 23 (Kavanaugh, J., dissenting from denial of rehearing en banc) […].
In other words, the stay orders aren’t on the same level as conventional precedents, but they’re still a meaningful “signal” to lower courts. That basic view strikes me as plausible for much the same reason that the Court’s decision to deny the same-sex marriage stays struck me as a credible signal in favor of same-sex marriage rights.
Still, there’s room to wonder whether the Court agrees with how the lower courts are treating signals. Perhaps we’ll know for sure before long: as signaling becomes more prevalent, the lower courts’ emerging caselaw on the subject may lead the Court to opine on signaling’s proper role.
First posted on Prawfs.