Eugene raises an interesting point about the unpublished memo opinion that cannot be cited. It is not clear to me whether Article III federal courts have the authority to issue opinions that are uncitable, non-binding precedent as an original matter, and therefore are somehow not subject to the rule of law.
When I clerked for the Second Circuit and the D.C. Circuit from 1983 to 1985, memorandum opinions comprised only 20 percent of the docket. As of today in 2024, memorandum opinions account for nearly 90% of all 12 federal circuit courts of appeals. When I was a clerk, memorandum opinions were drafted by the clerks and received cursory review by Article III judges, which was the exception to the norm. The fact that 90 percent of the Federal Circuit courts of appeals are now memorandum opinions means that these courts have only discretion, much like the U.S. Supreme Court, to pick and choose the cases in which they want to lay down the law.
All of this reflects the fact that the number of lower court judges has not increased since 1993, while the number of cases in lower federal courts has tripled since then. The new judge appointment bill failed to pass the Senate by 60 votes due to partisan fighting over the appointment of new judges. In addition, the 179 circuit court judges currently serving do not want to create new federal judgeships because it would weaken their status by tripling the number of lower federal court judges to match the tripled caseload of the lower federal courts.
I fear we are getting caught up in this phenomenon, but the evils it engenders should not be ignored. A judge who can express opinions on uncitable cases is not bound by precedent or the expectations of the parties in deciding each case on the facts, is not bound by the rule of law, and is probably unlikely to be overturned by the Supreme Court. The court has only heard 2023 this year. 60 cases out of 40,061 cases.
