Should courts be able to effectively prevent the Supreme Court from reviewing their opinions?  The issue has been in the news recently after Justice Thomas referred to the practice in a recent dissent from denial of certiorari.

To understand what courts are doing, a quick discussion of how courts issue their opinions is necessary.  Unlike many other countries, the United States is governed by the “common law.”  It’s a term that’s thrown around a lot without much explanation. Essentially, it means that many of our laws and their applications are derived from custom and past cases, rather than simply the exact letter of the law.  That’s why lawyers look for past similar cases when they make arguments to a court—in theory, courts are bound by precedent such that similar cases should have similar outcomes.

There is one glaring exception to this rule, and it recently caught the eye of a Supreme Court Justice.  Specifically, courts get to decide which of their opinions will be published and which will be unpublished.  Only the published opinions have precedential weight.  Indeed, unpublished opinions commonly begin with the underlined word “Unpublished,” along with the foreboding warning that “unpublished opinions are not binding precedent.”  In fact, before 2007, some courts of appeals prohibited any citation at all to unpublished opinions, and others “disfavored” the practice.  All circuits allow citation of unpublished opinions issued on or after January 1, 2007.  The Second, Seventh, and Ninth Circuits, however, still prohibit citation to pre-2007 unpublished opinions, and the D.C. Circuit prohibits citation to pre-2002 unpublished opinions.

The decision as to whether an opinion will be published rests in the hands of the court issuing the opinion.  The local rules of most courts provide some guidance as to when the court should choose to publish an opinion—for example, if the opinion establishes, clarifies, or modifies a rule of law, is on a matter of continuing public interest, or resolves or creates a conflict with other opinions.  But there is no effective enforcement mechanism.  A party may move for publication, but in many cases the parties will have no reason to care about creating binding precedent.  Even if they do, there is essentially zero oversight to ensure the courts are following their own local rules.  The Supreme Court has been asked at least thirty-six times to review the constitutionality of unpublished opinions, but has never once accepted that invitation.  In recent years, 88 percent of opinions issued by federal courts of appeals have been unpublished.

The situation obviously presents problems for lawyers.  Imagine finding the perfect case, but not being able to cite it.  Historically, this might have been less of a problem because an “unpublished” case was virtually impossible to find—’unpublished’ truly meant unpublished.  But today, with courts posting many, if not all, opinions on their websites and the proliferation of legal search engines such as LexisNexis and Westlaw, unpublished opinions are indistinguishable from published opinions in terms of accessibility.

Judges, on the other hand, have defended the practice as absolutely necessary to handling the workload placed on courts.  Courts issue over 35,000 opinions and orders each year, and it’s simply impossible for them to carefully craft each and every one of those opinions well enough to ensure the rationale is worthy of being cited as precedent.  Chief Judge Kozinski has noted that oftentimes unpublished dispositions are drafted by law clerks or staff, not the judges themselves, and may only get five or ten minutes of consideration by the judge.  Judges “are very careful to ensure that the result” is correct in every case, “but there is simply no time or opportunity for the judges to fine-tune the language of the disposition.”

Returning to where we started, Justice Thomas devoted a paragraph of his dissent to the fact that the decision below was unpublished.  To understand why that would matter to the Supreme Court, you need just a little more background in how the Court chooses its cases.  Among other factors, the Court likes to see a “split” in the lower courts—it wants to see lower courts coming to different decisions on the same facts.  But if an opinion isn’t published and therefore isn’t precedential, that lower court could  change its mind on the issue and resolve the split.  It might also be a signal that the lower court thinks the issue isn’t “important,” another factor the Supreme Court looks for.  By leaving the decision unpublished, the lower court has “insulated” its opinion from Supreme Court review.  And since lower courts don’t like being overturned by the Supreme Court, they have every incentive to discourage the Court from taking their cases.

So what’s to be done?  There aren’t easy answers in this arena.  But a good start might be to separate the publishing decision from those who actually write the opinion.  Doing so could remove the (real or perceived) incentive to insulate the decision from review.  While the decision maker should seek out and seriously consider input from the opinion’s authors, the final decision could be made, for example, by the clerk of the court.  Maybe then a court’s decision to leave unpublished a fully briefed and reasoned, 39-page opinion over a dissent won’t appear so suspicious, and won’t cause a Justice to charge that “it is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.”

Michael Mestitz is the President of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s Managing Editors. Contact them at mmestitz ‘at’ stanford.edu and cayres ‘at’ stanford.edu.