Orin asks below about the precedential status of circuit court opinions — like the D.C. Circuit’s opinion in Maynard — that have been affirmed by the Supreme Court, but under different analysis. Like Orin, I think it’s a very interesting question, but I confess my instinct about the answer is different from his. Here are some of the legal materials I think relevant.
The rules: The Supreme Court rules do not automatically vacate the lower court opinion when cert. is granted; they say nothing about it until the Supreme Court ultimately decides how to dispose of it by affirming, vacating, or reversing. This is in contrast to some courts of appeals — such as the Fourth Circuit or the Sixth Circuit — which provide that a panel opinion is automatically vacated when rehearing en banc is granted.
Court decisions relying on affirmed opinions: Searching Westlaw, I found a lot of cases where federal courts treat a court of appeals opinion as precedent (or sometimes “binding precedent”) when its citation notes that it has been “aff’d on other grounds” by the Supreme Court. For example:
Balintulo v. Daimler AG, 727 F.3d 174, 191 (2d Cir. 2013) (“The law of this Circuit already provides answers to some of those questions, including the principle that corporations are not proper defendants under the ATS in light of prevailing customary international law, see Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 149 (2d Cir.2010), aff’d on other grounds, 133 S.Ct. at 1669”).
Martin v. Occupational Safety & Health Review Comm’n, 947 F.2d 1483, 1485 (11th Cir. 1991) (following “binding precedent in Atlas Roofing Co. v. Occupational S. & H. Rev. Com’n, 518 F.2d 990, 1013 (5th Cir.1975), aff’d on other grounds, 430 U.S. 442 (1977)”)
Newton v. Thomason, 22 F.3d 1455, 1460 (9th Cir.