I heard a circuit judge on a podcast a few weeks ago discuss their fondness for SCOTUS concurrences and dissents (rather than just a single majority opinion) because they “tell circuit judges what’s coming down the pike.” That struck me as such an odd view of law and precedent.

On that view, the job of any judge applying federal law (lower federal court judges and all state court judges) is to guess at what the current SCOTUS will do with the case, regardless of what existing law says. It’s predictive. I don’t know what precedent means in that regime.

Makes you think of the Holmesian bad man (which lacked any theory of how judges think, and instead focused on the target of legal sanction).

Exactly.