The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From June through November of 2020, Chief Justice Roberts's South Bay concurrence became a "superprecedent." It was cited more than 100 times to uphold every type of COVID restriction. Yet, the opinion itself was remarkably narrow. It didn't say much about the First Amendment, and said little about how to assess other types of challenges. Still, judges took Roberts's 5th vote as gospel.
Fast-forward to the present. In Alabama Association of Realtors v. HHS, Justice Kavanaugh cast the fifth vote to leave the eviction moratorium in place. But he stated that the policy was unlawful. Does anyone treat Justice Kavanaugh's opinion as a "superprecedent"? Or even as a precedent? Nope. As best as I can tell, Kavanaugh's opinion is being relegated to the status of solo concurrence that is entitled to no weight. It's a non-precedent.
It must be tough living in the Chief's shadow on the shadow docket.
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