had time to consider fully. On the one hand, an opinion in which the Court merely articulates the relevant legal test and states its conclusions on the application of each prong may not pose undue risks of delay or lock-in. On the other hand, such an opinion—lacking the detailed explanation of the underlying reasoning typically found in merits opinions—may not provide much illumination.[58]
The Court has demonstrated, however, that it can issue informative opinions in an expedited way. In a high-profile case concerning the second federal eviction moratorium, the Court released an eight-page per curiam opinion providing a concise analysis of the majority’s view of the likelihood of success on the merits, weighing of the equities, and consideration of the public interest.[59] Given that public perceptions of the legitimacy of its rulings may be at stake, the Court may well benefit from continuing to adjust its explanatory practices in important cases, with an eye toward providing insight into the Court’s reasoning, reinforcing procedural consistency, and avoiding the possible appearance of arbitrariness or bias.
Relatedly, the Court might also avoid most of the procedural and transparency concerns about emergency rulings by more frequently exercising its discretion to transfer emergency applications to the merits docket on an expedited basis, as it recently did in the ongoing litigation concerning the Texas abortion law,[60] as well as in Ramirez v. Collier, a capital case.[61]
2. Clarity on Precedential Value
Many observers seem to agree that emergency orders should not, as a general matter, carry precedential weight. In some of its orders, the Court is careful to say that the grant or denial of emergency relief should not be construed as resolving the merits of the case. The opinions accompanying the first emergency order denying relief in Whole Woman’s Health present an illustration: The Court stated that “we stress that we do not purport to resolve definitively any jurisdictional or substantive claim in the applicants’ lawsuit.”[62] And, as the dissent by Chief Justice Roberts elaborates, “[a]lthough the Court denies the applicants’ request for emergency relief today, the Court’s order is emphatic in making clear that it cannot be understood as sustaining the constitutionality of the law at issue.”[63]
By contrast, when the Court earlier implied that lower courts are bound even by an emergency order issued with no opinion on behalf of the Court, in Gateway City Church v. Newsom, it risked confusing lower courts, relevant parties, and the public. Such an implied expectation would also be hard to square with a central justification for using truncated and relatively non-transparent procedures for emergency orders.[64] To the extent the Court has been taking steps since that case to clarify whether emergency rulings should have any precedential
