Defenders of the Court’s rulings respond that detailed opinion writing is infeasible in many emergency settings.[45] On this view, the relative lack of explanation in emergency orders is simply part of the process of faster decisionmaking. Moreover, in certain cases, the chances of the Justices reaching rapid agreement on the outcome might be improved by dispensing with an expectation that a majority of Justices will agree on legal reasoning set out in an opinion speaking for the Court.[46]
Relatedly, it may be practically useful for the Justices to reveal less rather than more in their emergency orders, to avoid locking themselves into positions or reasoning that is based on limited process, reflection, and information.[47] A similar argument supports the view that Justices ought not be required to reveal their votes in emergency orders.
C. Uncertain Precedential Effect
A third set of concerns centers on the uncertain precedential effect of the Court’s emergency rulings. Even to expert legal observers, including judges, it remains unclear which orders and related opinions operate as precedents binding on lower courts.[48] In the context of emergency orders, one might think that, at most, only opinions designated as “Opinions of the Court” should function as binding precedents; indeed, Justice Alito recently noted in a public address that a ruling on an emergency application is not a precedent with respect to the underlying issue in the case.[49] Yet at times the Court has appeared to expect its emergency orders to be treated as precedential, at least if statements of individual Justices or concurring opinions accompany the order, even though none of them is designated as the opinion of the Court.
An example from the Court’s pandemic cases about religious gatherings illustrates this issue.[50] In Gateway City Church v. Newsom, the Court ruled that the Ninth Circuit’s “failure to grant relief was erroneous,” and explained that “[t]his outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom.”[51] But the South Bay case was an emergency ruling that presented no majority rationale. As one Commission witness noted, the Court seemed to require lower courts to discern binding legal principles from an order with a concurring opinion by Justice Barrett (joined by Justice Kavanaugh), a statement of Justice Gorsuch (joined by Justices Thomas and Alito), and a concurrence by Chief Justice Roberts.[52]
Critics as well as many defenders of the Court’s emergency orders appear to agree that orders like the one in South Bay should not carry precedential weight for lower courts. More broadly, even when emergency orders do include an opinion for “the Court,” the nature of
