SCOTUSBlog Post on “Narrowing” & “Signals”

Yesterday I wrote a SCOTUSBlog post on narrowing from below and Supreme Court signals — two ideas from a recent article of mine. The post updates the article in a couple ways, particularly by discussing signals’ surprisingly important role in the contraception coverage case Zubik v. Burwell.

Here’s a paragraph on narrowing from below and how it differs from overruling:

To account for the complex role of Supreme Court precedent, we need a concept that lies between overruling and following higher-court rulings. In a recent paper, I tried to address that need by introducing the idea of “narrowing from below,” or construing the scope of a higher-court precedent in a way that is more limited than the best available reading. Narrowing is an interpretive activity. Rather than recognizing that a precedent has a certain scope and then overriding it based on a deeper source of law, as occurs in overruling, narrowing construes the higher-court precedent not to apply in the first place. Of course, narrowing from below can still pose a substantial challenge to the Supreme Court’s authority, as well as a risk of disuniformity. So when Supreme Court precedent is relevantly clear, narrowing from below is generally no more legitimate than overruling from below.

And here’s a paragraph that discusses “signals” and their remarkable role in Zubik v. Burwell, whose final chapter post-dated my article:

More recently, the 8th Circuit discerned “a signal” in the Supreme Court’s remarkable stay orders related to contraception coverage under the Affordable Care Act. Other courts had also discussed those signals, with varying results. So when the high court finally addressed the issue in Zubik v. Burwell, Justice Sonia Sotomayor wrote separately (joined by Justice Ruth Bader Ginsburg) in part to assert that “[l]ower courts … should not construe either today’s per curiam or our order of March 29, 2016, as signals of where this Court stands.” The fact that two justices felt that they had to issue this caution – and that they did so without the endorsement of a majority – demonstrates that signals are playing an important role in the judicial system.





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