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![handle is hein.journals/hjlpp49 and id is 1 raw text is:
A RESPONSE TO THE FORESHADOW DOCKET
TREVOR N. MCFADDEN* & VETAN KAPOOR**
INTRODUCTION
In The Foreshadow Docket, Professor Bert Huang adds to the newly
blossoming body of scholarship about the Supreme Court's
emergency docket.' He offers thought-provoking ideas about the
precedential value of the Court's emergency decisions, a topic we
have also addressed.2
We argued that the Court's emergency decisions are sortable into
three categories that represent a spectrum of precedential force:
when the Court grants an emergency application and issues an
opinion joined or supported by a majority of the Justices, that
opinion is binding on lower courts. Application grants
unaccompanied by a majority opinion are most comparable to
summary affirmances, which are precedential only as to those
findings the Court necessarily made to enter the order granting
relief. And unexplained denials of emergency relief generally carry
no precedential weight.3
Judge, United States District Court for the District of Columbia.
** Associate Deputy Attorney General, United States Department of Justice. Any
views expressed in this article are the Authors' own. The Authors would like to thank
Cana Cossin for her excellent research assistance.
' See generally Bert I. Huang, The Foreshadow Docket, 124 COLUM. L. REV. 851 (2024)
(reviewing PHILOSOPHICAL FOUNDATIONS OF PRECEDENT (Timothy Endicott,
Hafsteinn Dan Kristjdnsson & Sebastian Lewis eds., 2023)).
2 Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme
Court's Emergency Stays, 44 HARV. J.L. & PUB. POL'Y 827 (2021).
3 See id. at 849-72. In August 2024, the Court issued a short per curiam opinion
explaining the denial of a stay application. See Dep't of Educ. v. Louisiana, 144 S. Ct.
2507 (2024) (per curiam). To our knowledge, this was the first time the Court issued
an opinion explaining its denial of emergency relief. The federal government moved
for an emergency stay after a district court preliminarily enjoined - and the Fifth and
Sixth Circuits declined to stay-a rule implementing Title IX of the Education
Amendments of 1972 that defined sex discrimination to includ[e] discrimination on
the basis of sex stereotypes, sex characteristics, pregnancy or related conditions,](ViewImageLocal?handle=hein.journals/hjlpp49&div=1&collection=&method=preview&ext=.png&size=3)