Agreeing With Clarence Thomas on Unpublished Opinions

As someone who regularly reads appeals court rulings, I’ve always been bothered by seeing opinions marked as “unpublished” and therefore not to be seen as binding precedent. I had no idea it was as common as it is, comprising nearly 90% of all such rulings. In a recent denial of cert, Justice Clarence Thomas spoke out against this practice:

But the decision was “unpublished,” as are 88 percent of decisions issued by federal appeals courts. That means it set no precedent. It was a ticket good for only one ride.

The decision, from the United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made sure that no one missed this point. Its first word, “unpublished,” was underscored, and it bore a standard legend: “Unpublished opinions are not binding precedent in this circuit.”

Last month, the Supreme Court refused to review the ruling, over the dissenting votes of Justices Clarence Thomas and Antonin Scalia. While explaining why the court should have taken the case, Justice Thomas raised important questions about the vast subterranean body of decisions that do nothing more than resolve one dispute at a time.

“True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit,” Justice Thomas wrote. “But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.”

He accused the Fourth Circuit of violating its own standards by refusing to publish the decision. He also suggested that the appeals court had acted strategically to avoid review of its ruling.

Supreme Court justices have long been wary of unpublished decisions for that reason. “Nonpublication must not be a convenient means to prevent review,” Justice Harry A. Blackmun wrote in a 1991 dissent joined by Justices Sandra Day O’Connor and David H. Souter.

Here’s the argument that appeals court judges make to defend the practice:

Judges say that unpublished decisions are a sensible reaction to a crush of work.

“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”

Erica J. Hashimoto, a law professor at the University of Georgia and a lawyer for the prisoner in the recent case, Plumley v. Austin, No. 14-271, said “requiring courts to author binding precedent in every case is simply unworkable.”

The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.

“Because published opinions create binding precedent for all other cases considered by that court, those opinions, unless crafted with the utmost care and precision, can have significant unintended consequences for all sorts of other cases,” Professor Hashimoto said. “Anticipating those consequences requires an incredible investment of time.”

I’m not sure I buy that. Are they not thinking through the implications of their conclusions while deciding the case? But even if this is true, there’s an obvious fix: Create more courts of appeal or add more judges to the existing circuits. That’s obvious but politically difficult. It isn’t going to happen unless one party controls the White House and both houses of Congress. Imagine the reaction if Obama had proposed to do this: Court packing! He’s trying to control the entire judiciary! Tyranny! Because politics always trumps good policy.

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  • eric

    The Fourth Circuit, for instance, decided about 4,000 cases in a recent 12-month period, or 267 for each of its 15 active judges.

    So, that’s approximately 1 work day per decision. Which probably has to include the court time itself. Certainly not enough to expect great prose, but I don’t think its too much to ask that a judge be able to explain most of their legal logic for a decision given a few hours to write it up. Sure, there are going to be some very complex cases or unique cases that you don’t think would make good precedents. But it does seem like Ed (and Thomas) have a quantitative point, at least: a reasonable goal might be to reverse the numbers, so that it’s somethinng more like 80-90% published and 10-20% unpublished rather than vice versa.

  • Modusoperandi

    They aren’t unpublished. I read them all the time, in the letters section of their magazine (“Dear Courthouse, I can’t believe it happened to me…”)

  • Chiroptera

    Are they not thinking through the implications of their conclusions while deciding the case?

    Anyone who isn’t surprise that this may be the case has probably never sat on a deliberative body whose mission is to propose policy and pass resolutions.

    I’ve sat on my institution’s faculty representative body. I can pretty much relate to the Circuit’s opinion on this. Often it was very easy to come to a concensus as to an idea to solve some problem or other, but trying to get the wording correct so as not to lead to unintended consequences for rare but plausible scenarios — or even realizing there are plausible scenarios that would go “haywire” if the proposal were passed as-is — takes a lot of time, effort, and thought. That’s one of the reasons legislation goes through several committees and public meetings before it comes up for a final vote and why laws always seem so complicated. I would hope that a court would take the same time and care before establishing a precedent that would be binding on others.

  • Chris J

    I can actually see the point of the court judges. Maybe if our system put a little less value on precedent, or if court arguments did a little less word-by-word scrutiny, publishing more decisions would be feasible. Judges are human, though, and can’t predict all the ways their explanations might be parsed. It must be a bit relieving to have non-publishing as a way to not have every decision carrying the weight of being potentially permanent in a way that wasn’t intended.

    What would be nice, though, would be to have something like a meta-analysis study available for unpublished opinions. Essentially, the “review” that Thomas is talking about. That way you could get an accurate sense for the trend of those decisions without having to deal with potentially imprecise language that was good enough to get meaning across at the time.


    So, that’s approximately 1 work day per decision. Which probably has to include the court time itself. Certainly not enough to expect great prose, but I don’t think its too much to ask that a judge be able to explain most of their legal logic for a decision given a few hours to write it up.

    I think the “not enough to expect great prose” is a big concern. You know how often the language of the constitution is scrutinized to divine the intent behind it, and lawyers use similar word-by-word arguments in court all the time. “Not great prose” could potentially mean being interpreted in a way that was completely unintended. Hell, even great prose has that danger.

  • stumble

    I used to work for an appelate court back when I was in law school. I completely understand the practice of unpublished opinions, and even adding more courts isn’t going to solve the issue. We would need a full restructuring of the court system to have any reasonable chance to eliminate unpublished opinions, and even then I doubt it would work.

    The problem is the huge time difference in work needed to write an unpublished decision, and a published one. Sure in theory it shouldn’t take that much time, but appelate courts are very particular about getting the law right. The court I worked for as an example, had two clerks from the reporting judge write conflicting opinions, each of which took 2-3 days for a simple opinion, and coule drag on for months in a complicated case. Then the clerks switched and tried to shred the other’s opinion. Which normally took an additional 2-3 days.

    After this the clerks would re-write their opinions taking into account the criticism of their collegue. At which point the justice would generally get involved initially. Make his or her recommendations, provide notes for each side, insert commentary, ect. At which point the decision would be re-written taking this into account. Only at this point would the decision be passed to the other judges for their consideration. With each step along the way taking at least a couple of days, and often a week. All in all a published decision would take more than a month of work to get out the door.

    An unpublished decision could be written in less than an hour sometimes, certainly a half day, since often the winning sides brief would just be adopted in large part, and little additional research would be justified. Sure it had to be edited for grammar, but no major lifting is required.

    Think of it this way… An unpublished decision is like getting ready to sit on the couch to watch a movie. Toss on some pajamas, and at-shirt any your fine. While a published decision is like dressing for your wedding. Sure putting on the clothes is quick, but a lot of time is spent double checking you have the right cuff links, the socks match, you get a haircut the day before, shave well, then have a few friends double check everything. Because missing even a little thing is something you will have to live with for years or decades to come.

  • Raging Bee

    The only way unpublished opinions would be seriously wrong, is if courts are knowingly making inconsistent decisions, based on considerations that should not be relevant to their actual cases, and trying to hide the inconsistency by saying “don’t worry, this isn’t binding on anyone else.”

    It would be helpful to know what sort of cases are decided via unpublished opinions; what might be wrong about the specific decisions; and what sort of precedent they might set if they were “published,” or what sort of precedent they may be contradicting by staying “unpublished.”

  • Chiroptera

    Naively, I would also assume that most of the cases the appellate court hears would be pretty cut and dried; the law is clear, previously established precedent is clear, so a simple ruling “yes” or “no” would be justified. Maybe I’m wrong, though.

  • stumble

    Raging Bee

    Keep in mind most cases at the Apellate Court level are simple, non-controversial, and pretty clear examples of when judges just get a decision wrong. I have never seen statistics on this, but my experience would lead me to believe that roughly 80-90% of AC cases are functionally “the law says $1,000 is the cut off for X crime, in is case the judge mistakenly use $500 as the threshold”. It doesn’t take much work for an AC to simply correct this clear error, reverse and remand.

    The rest of the cases (again in my experience) tend to be of the house keeping variety, that no one wants to publish to make sure no bad law is written. Or a case where the interest of fair play is used to overturn a technicality. It’s a little silly, but in law the date something is dropped off to a post office can be very important. So what happens when an attorney goes to the post office on time, but the office is closed due to the only employee being admitted to the hospital? A trial judge is likely to say X wasn’t filed timely and toss the case, where the AC may overrule for manifest injustice reasons. But the AC is hesitant to open a large body of exceptions for when filing requirements can be waived so doesn’t publish.

    Again in my experience controversial cases were always published. Anything that reached a lot of people was always published. Even unimportant but complicated cases were always published. It was only those cases where the law was pretty cut and dry (or a clear exception was being granted) that went unpublished.

  • Jordan Genso

    @5 stumble

    Thank you for that insight. I think it is very helpful for this topic, and you make a compelling argument.

  • D. C. Sessions

    So Justice Thomas has now decided that Bush v. Gore was a mistake?

  • Joseph Sexton

    “Unpublished” now does not mean the same as it used to. Back when physical law books were the only source for getting decisions apart from going to the appellate court and reading the docket sheets, “unpublished” meant no one will see it. Now, however, when you do a search on Lexis or Westlaw, the “unpublished” cases come up with the published ones, although they are clearly marked.

    “Unpublished” cases are not binding precedent, but can be cited for persuasive value. It is something to do sparingly, but if you have an issue identical to one decided in an unpublished case, a trial level judge may be persuaded that the reasoning is sound and reach the same result.

    One other reason for “unpublished ” cases: Federal Appeals Courts and many intermediate state appellate courts have large numbers of judges, but hear cases in panels of three. Opinions intended for publication are circulated to all the judges, not just the panel that heard the case to be sure the precedent is one that all members of the court have an opportunity for input before release. Unpublished cases represent the opinion of that panel only, and a different panel of the same court might reach a different result. If all decisions had to be circulated to all the judges for input, the number of opinions each judge had to review would make for a truly oppressive workload.

  • steves

    Maybe they can all be “published”, but with words like these from Clarence Thomas’ side of Bush v. Gore:

    “”Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities.”

    Every case is “published” but “limited to the present circumstances”.

  • malta

    Adding on to what stumble said, I’ve also worked for a federal court and “unpublished” almost always means “this was written by a law clerk.” The judges checked that it had the right result and explained the law correctly, but they weren’t too fussed about how nicely it was written.

    One judge explained that he preferred unpublished decisions when non-lawyers represented themselves because he didn’t think they would do a good job on the legal arguments. I’d say that probably accounts for about 40% of the unpublished decisions right there. Another huge chunk involve criminal defense lawyers who don’t want to represent their clients on appeal.

    That said, I still think 90% is way too high. There have been too many times when I found the perfect case but couldn’t use it because it was unpublished.