One of the most interesting aspects of the ongoing litigation over the Affordable Care Act’s contraception mandate concerns “signals.” As I’ve defined that term, signals occur when the Justices act in their official, adjudicatory capacities without establishing conventional precedent, but while nonetheless indicating some aspect of how lower courts should decide cases. In general, signals should guide lower courts when conventional precedent is ambiguous (see this post and this article). In her Zubik concurrence yesterday, Justice Sotomayor addressed signals’ increasingly salient role. But there is both more and less to Sotomayor’s opinion than meets the eye.
By way of background, consider the Supreme Court’s controversial stay decision in the contraception case Wheaton College (2014). In granting an unusual stay of the contraception mandate, the Court appeared to have concluded that the government could have pursued its stated interests through less burdensome means. Thus, Wheaton College could plausibly have been viewed as a signal to that effect—and, in fact, some lower court judges took precisely that position.
True, Wheaton College expressly stated that the Court had not resolved the merits. But that disclaimer could plausibly be viewed as an acknowledgement that the Court hadn’t issued a conventional precedent pursuant to its normal decisional procedures. Thus, the Court’s signal could be viewed as occupying a lower precedential tier than a full dress ruling on the merits. For instance, Court itself might not feel bound by its summary ruling. And lower courts might feel obligated to follow clear conventional precedent, even if Wheaton College or other signals pointed in a different direction.
In that light, consider the most relevant passage of Justice Sotomayor’s Zubik concurrence, which Justice Ginsburg joined. Here it is, broken down into smaller paragraphs:
I join the Court’s per curiam opinion because it expresses no view on “the merits of the cases,” “whether petitioners’ religious exercise has been substantially burdened,” or “whether the current regulations are the least restrictive means of serving” a compelling governmental interest. Ante, at 4–5. Lower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.
We have included similarly explicit disclaimers in previous orders. See, e.g., Wheaton College v. Burwell, 573 U. S. ___ (2014) (“[T]his order should not be construed as an expression of the Court’s views on the merits”).
Yet some lower courts have ignored those instructions. See, e.g., Sharpe Holdings, Inc., v. Department of Health and Human Servs., 801 F. 3d 927, 944 (CA8 2015) (“[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 [existing regulations] 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”).
On remand in these cases, the Courts of Appeals should not make the same mistake.
There are several noteworthy aspects of Justice Sotomayor’s discussion. First, Sotomayor is following lower courts in expressly discussing “signals” as a precedential activity distinct from conventional precedents announced in full dress opinions. That is an obvious point, but it bears emphasizing. Signaling is already an explicit part of judicial practice.
Second, Sotomayor appears to be arguing that the Court has tried to control its use of signals by clarifying that some rulings that could be interpreted as signals actually aren’t. According to Sotomayor, the Court engages in this kind of control and calibration by including a disclaimer in summary rulings to the effect that the Court’s decision expresses no view on the merits. If Sotomayor’s claim here is correct, it would seem to have significant implications. For example, when the Court issues a summary ruling and does not include such a disclaimer, should lower courts automatically view the Court’s ruling as a deliberate signal? In short, the targeted use of disclaimers may indicate or clarify that signaling is the norm.
Third, and despite Sotomayor’s protestations, it appears that the Court’s prior summary rulings actually were fairly good signals, at least in the sense that they provided lower courts with useful predictive guidance as to the Court’s view of the merits. After all, the Court clearly took the challengers’ arguments seriously during oral argument—so much so that it requested special additional briefing as to whether an alternative accommodation was possible. And, ultimately, the Court in Zubik remanded for consideration of that accommodation (possibly to allow for settlement and possibly just to delay a final ruling in the case). Notably, all this happened in the absence of Justice Scalia; if he were still with us, perhaps the challengers would have won outright.
Fourth, Justice Sotomayor is herself engaged in signaling. Concurring opinions frequently try to put their desired spin on majority decisions, sometimes in spite of the majority’s apparent inclinations. It seems plausible that Sotomayor is engaged in that time-honored practice when she places her own preferred gloss on the Court’s past signals and then instructs that “[l]ower courts, therefore, should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.” In other words, Sotomayor is trying to signal that lower courts should ignore the Court’s past and present signals on this issue.
Fifth, lower courts should view Justice Sotomayor’s signal with caution. I’ve argued that lower courts should generally treat signals as precedential only when they are deliberately transmitted by a majority of the Court. In Zubik, however, Sotomayor’s signal is endorsed by only two justices, and Sotomayor purports to set the meaning of the Wheaton College stay, even though she dissented from that ruling. So while lower courts should of course consider the arguments in Sotomayor’s concurrence, they shouldn’t view her opinion as precedent. As Adrian Vermeule tweeted shortly after Zubik posted online: “Rule of thumb (re Zubik v. Burwell): whoever writes separately to interpret the Per Curiam is afraid of a more obvious interpretation.” (Aaron Nielson raised related points on twitter.)
Finally, we might ask whether it would be proper for the Court to decide a case like Zubik or Wheaton College while decreeing that its ruling provided no guidance for lower courts. When creating conventional precedents, it is widely believed that courts act illegitimately unless they are prepared to live with the stare decisis consequences of their actions. That is why so many commentators lament the line in Bush v. Gore about the Court’s decision being limited to the precise facts at hand. A proverbial “ticket good for one day only” isn’t generally thought to be a proper judicial decision. There’s at least a plausible argument that signaling should work the same way: if the Court wants to issue unconventional rulings, then it should have to live with the unconventional precedential consequences.
First posted on Prawfs.
Re’s Judicata 