Fred O. Smith, Jr.

Sometimes the Supreme Court overrules prior precedents with unmistakable clarity. Think Dobbs overruling Roe. (“We hold that Roe and Casey must be overruled.”) Or Lawrence overruling Bowers. (“Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. Bowers v. Hardwick should be and now is overruled.”) But other precedents die slower deaths, creating a doctrinal twilight zone where lower courts must apply decisions the Supreme Court has undermined without formally overruling. Curtis Bradley and Tara Leigh Grove tackle this judicial limbo in their forthcoming article, asking how lower courts should handle precedents that are neither dead nor fully alive—and what this uncertainty means for a legal system that depends on clear hierarchical commands.

The most common approach to navigating the twilight—which the Supreme Court has repeatedly endorsed—mandates that lower courts treat Supreme Court precedent as fully authoritative regardless of subsequent signals suggesting its demise. As the Court stated in Rodriguez de Quijas v. Shearson/Am. Express, Inc. (1989) and reaffirmed in cases such as Agostini v. Felton (1997): “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”

A more controversial approach encourages lower courts to handle this uncertainty by predicting how the current Supreme Court would rule, essentially counting votes among sitting Justices. Under this “prediction model,” lower courts would examine changes in Court composition, statements during oral arguments, and individual Justices’ expressed views to anticipate future overrulings. The article notes that lower courts might understandably favor this approach “if for no other reason than to avoid being reversed.”

Borrowing from both, Bradley and Grove offer a more nuanced account which they call the “decisional authority model.” They identify five signals that might indicate a precedent is disfavored: (1) disparaging statements about it; (2) decisions applying it narrowly; (3) the Court’s silence or failure to cite it; (4) decisions in related areas that seem incompatible; and (5) methodological shifts that undermine its foundations. These signals are not created equal, however. Only the first two—when appearing in binding majority opinions—should guide lower courts. Separate opinions, silence, and indirect doctrinal developments should carry no weight.

As key case studies, they examine three doctrines: (1) the Lemon test for the Establishment Clause; (2) the Bivens damages remedy for violations of federal constitutional rights by federal officials; and (3) Chevron. Lemon–-which considered, among other factors, whether the government acted with a religious purpose—endured decades of withering criticism from individual Justices. Despite these critiques from on high, lower courts continued applying it because no majority opinion had abandoned it. After pronouncements in American Legion v. Humanist Association (2019) undermined the opinion’s long-term vitality, the outcome was more mixed. While some circuits began “counting heads” across opinions to declare Lemon dead, other courts insisted a binding majority decision was required.

As for Chevron, well-before overruling it, the Court declined to accord deference in cases where it seemed applicable. Yet lower courts continued treating it as binding precedent, deferring to reasonable agency interpretations of ambiguous statutory text.

As to Bivens, which has not been overruled, the Court has rejected every claim since 1980, while individual Justices called for limiting it to its facts. Lower courts have been left with the task of navigating that uncertainty, as Ziglar v. Abbassi (2017) and Egbert v. Boule (2022) have cabined the doctrine. Indeed, empirical analysis demonstrates that since Egbert, lower federal courts have overwhelmingly restricted Bivens to a vanishingly narrow set of contexts.

Across these areas, the authors demonstrate that lower courts resist the temptation to predict the Court’s future moves, instead treating precedent as authoritative until explicitly overruled. This descriptive finding is consistent with their normative claim: lower courts should respond only to criticism or narrowing in binding majority opinions, not to disparaging separate opinions, silence, or methodological shifts.

The taxonomy could bring clarity to a murky area. By distinguishing between legitimate disfavoring signals from the Court and less precise signs of disagreement, Bradley and Grove offer practical guidance that respects vertical stare decisis and the Court’s prerogative to evolve doctrine. Their rejection of “counting heads” across separate opinions particularly resonates—if five Justices can effectively overturn precedent through scattered criticisms, the distinction between institutional decisions and individual preferences collapses.

The issues Bradley and Grove raise are particularly urgent given recent use of the shadow docket, where the Court has issued consequential orders with minimal or no reasoning. As Erwin Chemerinsky recently observed, the Court has used its shadow docket to allow firings of agency officials protected by for-cause removal restrictions, effectively gutting Humphrey’s Executor without formally overruling it. Steve Vladeck has documented how this pattern extends beyond agency removals—in Department of Education v. California, the Court issued a cryptic four-paragraph ruling that lower courts must somehow parse for broader principles. When emergency orders appear to eviscerate longstanding precedents, lower courts face a particularly acute variety of the interpretive challenge Bradley and Grove outline: follow the original precedent that technically remains binding, or divine meaning from unexplained shadow docket rulings that suggest that precedent is functionally dead.

Compounding this difficulty, some Justices have excoriated lower courts for failing to properly decode these cryptic signals. Justice Gorsuch accused lower courts of creating “anarchy” by not treating shadow docket orders as binding precedent, while simultaneously acknowledging such orders create only “probabilistic holdings.” In his recent NIH grants concurrence, Gorsuch went further, claiming lower courts were in “defiance” for distinguishing cases that four of his colleagues—including the Chief Justice—agreed were distinguishable. This creates a Kafkaesque trap: lower courts must extract clear commands from orders that provide neither reasoning nor clear standards, then face rebuke when different judges reach different conclusions about what these tea leaves mean.

Bradley and Grove’s article also surfaces important questions about the institutional costs of doctrinal limbo. The Bivens case study reveals courts desperately seeking procedural off-ramps to avoid grappling with a doctrine whose status remained unclear for decades. This uncertainty burdens litigants who must navigate shifting sands, wastes judicial resources on creative avoidance strategies, and undermines precedent’s core function of facilitating settlement. Prolonged ambiguity may also distort legislative incentives—why would Congress create statutory remedies if constitutional ones already exist, even as the courts slowly strangle those remedies? While the authors acknowledge these costs, their project is descriptive and prescriptive for lower courts operating within this imperfect system, not a brief for how the Supreme Court should signal its intentions.

Bradley and Grove make a vital contribution to understanding how vertical stare decisis operates when the Supreme Court does not speak clearly. Their empirical findings reveal that lower courts generally resist the siren call of prediction, dutifully applying precedents even as the Supreme Court undermines them through a thousand cuts. This descriptive work grounds their normative framework in judicial reality rather than abstract theorizing. The decisional authority model offers lower courts a principled way to navigate treacherous waters—follow binding majority opinions that criticize or narrow precedent, but ignore the noise of separate writings, silence, and indirect doctrinal shifts.

Their most profound insight may be recognizing that disfavored precedent is not merely a doctrinal puzzle but a reflection of institutional power dynamics. The Supreme Court maintains control while forcing lower courts to decode mixed signals without a cipher. From this vantage, Bradley and Grove have not just mapped the twilight zone of dying precedent—they have provided lower courts with a flashlight. As shadow docket rulings multiply and individual Justices grow more aggressive in attacking precedents they cannot yet overrule, this guidance becomes ever more essential for judges trying to fulfill their constitutional role while the ground shifts beneath them.