Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit responded to my June 19 post on this blog via email with criticism. My previous blog post stated that the fact that 90% of federal appeals court decisions are designated “unpublished” poses a growing threat to the rule of law.
Judge Smith did correctly point out that Federal Rules of Appellate Procedure 32.1 provides (applicable only to federal courts): “[a] Courts may not prohibit or restrict citation of federal judicial opinions [or] The order is designated as ‘Unpublished’. Incidentally, Rule 32.1 only applies to decisions issued after 2007, two years after I ceased teaching federal jurisdiction. Prior to that, judges in certain jurisdictions Reference to a federal judicial opinion or order can be prohibited or limited by calling it “unpublished.”
I am pleased to hear that the desire of many lower federal courts not to prohibit citing their “unpublished” precedents or orders is now also held to be illegal, as it has always been ill-advised. Note that this rule does not provide for federal appeals courts to Decide Follow their previous “unpublished” opinions. As I said in my June 19 post, the fact remains that 90% of decisions by federal appeals court judges are in cases that do not bind them as precedent for future cases.
It is true that, as Judge Smith put it, most of the “unpublished” opinions dealt with issues that had already been “finally decided.” If so, all future unpublished opinions should serve as binding precedent for future panels, and Judge Smith essentially agreed that was not the case today. Otherwise, as I said on June 19, their release will pose a growing threat to the rule of law.
Judge Smith noted that I erred in advising the Supreme Court never to issue a writ of certiorari to an unpublished opinion. My point is correct on this point.
However, I still believe that the U.S. Supreme Court hears only 60 appeals out of the 42,000 decisions issued by federal appeals courts each year, not to mention the federal issues decided each year by state supreme courts, cf. Trump v. Anderson, 601 US 100 (2024) (reversing Colorado Supreme Court), a writ of certiorari is much less likely to be granted for an opinion that is not precedent than for a case that does create a precedent. After all, the Supreme Court is no longer a forum for righting wrongs. It grants certiorari in only 3% of cases where there is: 1) circuit division; or 2) a legal question of general and public importance. Non-binding unpublished opinions are unlikely to be of general and public importance and should never be published in the presence of circuit division.
An earlier version of this article contained material that I now regret publishing and retracting.
