The Volokh Conspiracy

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Comparing CJ Roberts's South Bay "Superprecedent" and Justice Kavanaugh's Alabama Non-Precedent

Both opinions were the fifth vote to deny a stay. Only one of those opinions seems to have precedential value.


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.