(When) Should Lower Courts Try to Predict Supreme Court Rulings?

A plea for a more refined view, inspired by yesterday's decision in Hughes.

It is largely eclipsed by some of its other rulings and non-rulings of the day, but one of the most interesting things that the Supreme Court failed to decide yesterday was how lower courts are supposed to read a 4-1-4 Supreme Court decision with no majority opinion. The case is Hughes v. United States, and Richard Re, who wrote an excellent amicus brief and underlying article, has some typically interesting thoughts over at Prawfsblawg.

Towards the end of his post, Richard brings up an interesting related issue that arose during arguments in the case, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense. I can think of at least four different propositions that the model might entail:

1. Lower courts should be free to engage in "anticipatory overruling" of Supreme Court decisions. The Court itself has been most forceful about rejecting this point, saying that: "If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions." And even if that precedent rests on "increasingly wobbly, motheaten foundations … it is this Court's prerogative alone to overrule one of its precedents."
2. Lower courts should apply Supreme Court precedent differently just because the Court's personnel has changed. For instance, the day that Justice Alito assumed Justice O'Connor's seat, one could look at a law professor's list of 5-4 decisions that seemed likely to be overturned; even if one does not accept (1) above, one could imagine lower-court judges approaching decisions in those areas (abortion, campaign finance, affirmative action, the Establishment Clause, and the Fourteenth Amendment enforcement power) with a new thumb on the scale.
3. Lower courts should apply Supreme Court precedent differently (or not at all) in cases where no Supreme Court review is possible. This may frequently be more hypothetical than real, but is a frequent ingredient in debates about limiting federal jurisdiction. A frequent assumption of those who wanted to restrict the Supreme Court's review over certain issues or courts is that freed of Supreme Court review, the tribunal would be freed of the obligation to follow Supreme Court precedent as well. There is at least some historical support for this view.
4. Lower courts should try to follow the general drift of an area of law, not only the specific holdings and dicta of Supreme Court opinions. For instance, in qualified immunity, or AEDPA habeas review, or arbitration, the Court takes a string of cases, generally to reverse the lower courts, and generally in the same direction. Sometimes these reversals are summary, and sometimes the Court remands other cases on the same topic for review in light of the most recent reversal. Perhaps at some point lower courts are supposed to get the message.

Referring to the "predictive model" generally suggests that these four things should all travel together. But that is not so clear to me. For instance, the Court's explicit rejection of (1) does not necessarily entail a rejection of (2)-(4). For my own part, I strongly favor (1), generally favor (3), and am more open to (4) than to (2).

Another possible refinement is to imagine a "predictive model" that might sit alongside another more fundamental theory of lower court decision. For instance, a predictivist might plausibly argue that a lower court judge really has two legal duties. First, to get the law right as a matter of first principles (meaning to rule in the way that would be correct absent any precedents that misstate the law); and second, to avoid wasting the litigants' time and money with decisions that will likely be reversed. Under this theory, prediction might be a constraint on a theory of independent judgment, rather than a source of law itself. It might also suggest that in cases where predictions are the most unclear, judges should focus on the underlying principles of law rather than trying to read tea leaves. On that view, Hughes may not have been a good case to use the predictive model, but that doesn't necessarily mean there's no good case for it.