It is largely eclipsed by some of its other rulings and non-rulings of the day, but one of the most interesting things that the Supreme Court failed to decide yesterday was how lower courts are supposed to read a 4-1-4 Supreme Court decision with no majority opinion. The case is Hughes v. United States, and Richard Re, who wrote an excellent amicus brief and underlying article, has some typically interesting thoughts over at Prawfsblawg.

Towards the end of his post, Richard brings up an interesting related issue that arose during arguments in the case, which is the extent to which lower courts ought to follow "the 'predictive model' of precedent, whereby lower courts strive to predict the decisions of their judicial superiors." As Richard notes, Chief Justice Roberts forcefully asserted this model, which "was eyebrow-raising at the time" given the Supreme Court's own statements. And I think enlightened opinion has generally suggested that there is something problematic about substituting "what the Supreme Court will do" for lower courts' duty to apply the law as it stands.

Still, it seems to me that we need to think more carefully about what the "predictive model" actually is and whether we might be able to refine it into something that makes sense.

Read more at The Volokh Conspiracy