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.

NEXT: Today in Supreme Court History: August 8, 2009

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  1. The machinery is designed to work only for the left wing agenda and its objectives. Until we finally have had enough and disassemble the entire thing this will always be the result.

    1. I concur — it’s like with a small child who only hears what the child wants to hear.

      We need true accountability and that involves judges being impeached (and removed) for being overrulled — not overruled on questionable calls, but for stuff like this.

      1. Stuff like what? This post is about two Supreme Court opinions, neither of which overruled anything.

    2. Exactly. Once you realize that the left acts in bad faith on everything it does, all other things become clear.

      You see the same phenomenon with 2nd Amendment cases, quoting Scalia’s line from Heller about the right not being unlimited to justify any and all limits.

  2. Treating EITHER opinion as a “superprecedent” is stupid, and anyone who did so should be made to sit in the corner with the dunce cap on.

    If “superprecedent” means anything, it is that this particular ruling will not be overruled in a later SC decision. I believe that Judge (now Justice) Barrett addressed that issue in her confirmation hearing. Does anyone really think that either of these two opinions must be followed in all subsequent cases involving epidemic-related real estate regulations?

    What’s really involved is vote-counting on the Supreme Court as presently constituted: Do you think this Justice (the swing vote) will rule differently in the next similar case? My guess is that the folks advising Biden think that, if challenged, Kavanaugh will blink. I can’t say that’s not a reasonable bet.

    1. Treating EITHER opinion as a “superprecedent” is stupid, and anyone who did so should be made to sit in the corner with the dunce cap on.

      Prof. Blackman is the only person doing so (or showing any apparent interest in doing so, as far as I can tell). Your suggestion for him is a sensible one, though.

  3. Firstly, no court has had the opportunity to apply Kavanaugh’s concurrence. I fully expect them to accept it as precedent, although they may be able to distinguish the revised moratorium.

    1. I know right? This comparison is premature.

  4. They are procedurally different. Kavanaugh’s concurrence in denial of application for stay is not a binding decision of the court. We know that because the court has told us that before.

    Kavanaugh’s concurrence is a [blank] around and find out statement. It’s relevant to what the lower courts might do, but it would be madness to call it precedent based on the procedural posture.

    1. Need to find a good compendium of all the Fu[n]k Around and Find Out opinions from SCOTUS history. Surely there have been many right?

  5. Because this garbage Supreme Cpurt is always wrong, all its decisions should enacted by the Congress or be void. Ivy indoctrinated, rent seeking scumbags should not be making national policy.

  6. Reason needs to tag this post with #shadowpuns

    Based on CJR’s recent opinion, the chief thinks it unreasonable that so many lower courts cited his South Bay concurrence. So even if the chief has been “casting a shadow”, it was inadvertant and he has now stepped into the shade. #shadowpuns

    I disagree with the implication that Kavanaugh cares, or somehow thinks he is in the chief’s shadow on this matter. Unless you have some inside info, I don’t know of anything that supports that conjecture.

    Looking forward to Roberts casting some serious shade on the lower courts at his next opportunity. #shadowpuns #penumbrapuns

    1. If anyone has earned the title of Leader of League of Shadows, Prince of Penumbras, it is Gorsuch for that recent Soliloquy of Shade where he criticized Roberts for his South Bay concurrence. An umbrous opinion if there ever were one. #shadowpuns #penumbrapuns

  7. Both opinions were the fifth vote to deny a stay.

    No. Both votes were among five which denied a stay. Unless you have some secret source from chambers, there is no way of telling which order they were cast. Far as the world is concerned, they were simultaneous.

    1. I believe the votes are in fact cast in order of seniority, so there would indeed have been four votes to deny the stay on record when Kavanaugh’s turn came.

  8. Nobody cares anymore.
    Even the US Supreme court admits it is not following the US Constitution.
    It’s all politics now, and not even voting is considered important enough to fight for.
    I believe that great philosopher Kris Kristofferson was right when he sang
    “It’s time for truth the barker said and poured his self a beer
    Oh yeah forsooth said Ben the Geek but who’ll be left to hear
    They’ve driven off the fools and saints and now they’ve stole the show
    It’s all a bloody circus mates and clowns are in control”

  9. As the moratorium challenged has expired, and Kavanaugh (Q.C.) cabined his reservations to a specific expiration date of a specific order, it wouldn’t really provide a narrowest grounds for the decision, even if a concurrence to denial of a stay (“I also, do and say nothing. And here’s why.”) was precedential.

    Mr. D.

  10. “It must be tough living in the Chief’s shadow on the shadow docket.”

    You know that Justice Kavanaugh is a justice on the Supreme Court of the United States (the most powerful court in the world), and has life-time tenure, right?

    Justices aren’t middle-schoolers who’s feelings get hurt.

  11. First of all, no one has had the opportunity to rule on the CDC eviction moratorium. We dont know what any court thinks of it yet.

    Secondly, what Kavanaugh was agreeing with was the lower court (D.C. Appellate) opinion. So that should really be the controlling opinion as it applies to this CDC moratorium.

    1. *”thinks of it yet. “-> thinks of Kavanaughs concurrence.

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