Is It Precedent?

Precedent provides the fuel for both appellate advocacy and legal education. Just as students learn the law by reading cases, appellate lawyers seek favorable rulings by citing precedent that supports their positions. Courts generally must follow controlling precedent. Thus, if a decision contradicts the law declared in a higher court’s decision or rules contrary to that decision based on facts that are materially indistinguishable, it is subject to reversal.[1] And the advocate seeking to avoid application of a precedent must either establish that the facts are materially different, or that a different set of precedents that support a different result have more apt application. Even if the applicable precedent is impaired by subsequent decisions, the Supreme Court insists its ruling with direct application to the lawsuit must be followed in the lower courts until SCOTUS exercises the “prerogative of overruling its own decisions.”[2]

What about dicta from the Supreme Court? The Third Circuit has explained that Supreme Court dicta does not bind courts but that also should not be ignored. It explained, that the “Supreme Court uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[3] The Seventh Circuit, therefore, advises that, because other courts will follow the Supreme Court’s lead, conformity avoids a “disparity among tribunals” and “frustrate evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[4]

Of course, when new considerations are apparent and the issue not fully briefed before the Supreme Court, a court is free to blaze its own path. The Supreme Court has explained, that it is “not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[5] Moreover, it has said, “we are not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[6] These statements suggest that the Court does feel otherwise bound by its dicta.

The question du jour now is about the precedential effect of the Supreme Court’s emergency rulings. In Trump v. Boyle[7] a little more than a week ago, the Court stated that, “[a]lthough our interim orders are not conclusive of the merits, they inform how a court should exercise its equitable discretion in like cases.” The statement suggests that these emergency orders have precedential effect even when the Court provides little reasoning in them. In holding that the removal of members of the Consumer Product Safety Commission by the president was “squarely controlled by the four-paragraph emergency ruling in Trump v. Wilcox,[8] the Court rejected the district court and Fourth Circuit’s reasoning about why this case was different from Wilcox without elaborating on the flaw in that reasoning.

In remarks at the Ninth Circuit conference, Justice Kagan suggested that there are problems with relying on emergency docket rulings. She noted that the cases on the emergency docket are not fully briefed or argued before the Court. Nor do the justices meet to discuss the case and how they should rule. She gave the example of the decision that allowed cuts to the Education Department’s funding.[9] The decision consists of a solitary paragraph, announcing the stay without an iota of reasoning. A three-justice dissent, written by Justice Sotomayor (and joined by Justice Kagan), explains a contrary position with 19 pages of reasoning. In similar circumstances that comes before a district court, without any basis for understanding how and why the Court ruled as it did, she asked rhetorically, “What’s that court supposed to think?”

Much of appellate argument consists of apt analogies to decided cases. Nothing in the current debate about what constitutes precedent changes that. However, when the Court operates by broad outlines, there remains a great deal of room for creative coloring between the lines.

[1] Williams v. Taylor, 529 U.S. 362, 405 (2000).

[2] Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989).

[3] In re McDonald, 205 F.3d 606, 612 (3d Cir. 2000).

[4] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[5] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013) (citation omitted).

[6] Cent. Virginia Cmty. Coll. v. Katz, 546 U.S. 356, 363 (2006).

[7] Trump v. Boyle, No. 25A11 (July 23, 2025),

[8] Trump v. Wilcox, No. 24A966 (May 22, 2025).

[9] McMahon v. New York, No. 24A1203 (Jun. 6, 2025).