Judge Jerry Smith of the U.S. Court of Appeals for the Fifth Circuit responded critically via email to my June 19 post on this blog: In a previous blog post, I argued that the fact that 90% of federal appeals court decisions are designated “unpublished” represents a growing threat to the rule of law.
Judge Smith noted that Federal Rule of Appellate Procedure 32.1 (for Federal courts only) states:[a] Courts cannot prohibit or restrict citation of federal court decisions [or] ***Orders designated as “unpublished.” Incidentally, Rule 32.1 only applies to decisions issued after 2007, two years after I stopped teaching federal jurisdiction. Prior to that, judges in some jurisdictions could prohibit or limit citation of federal court opinions or orders by calling them “unpublished.”
I am pleased to hear that the desire of many lower federal courts not to prohibit citing “unpublished” cases and orders has now been made illegal, even though it was previously unwise. Note that this rule does not say that federal appellate courts are obligated by precedential binding to follow previous “unpublished” decisions. As I noted in my June 19 post, the fact remains that federal appellate court judges hand down 90% of their decisions in cases that are not binding as future precedent.
To be sure, most “unpublished” opinions address issues that, as Justice Smith put it, are “finally decided.” If that were the case, all future unpublished opinions would be binding precedent for future panels, but Justice Smith essentially agrees that this is not the case at this time. If not, then as I stated on June 19, the publication of those opinions is a growing threat to the rule of law.
Justice Smith points out that I was wrong to suggest that the Supreme Court would never issue a writ of certiorari on an unpublished opinion. I will correct that point.
But I still believe that the U.S. Supreme Court, which hears appeals of only 60 of the 42,000 decisions handed down by federal courts of appeals each year (see Trump v. Anderson, 601 U.S. 100 (2024) (overturning Colorado Supreme Court decision)), is far less likely to grant leave to appeal in a non-precedent-setting opinion than it is to grant leave to appeal in a precedent-setting case. After all, the Supreme Court is no longer a court to correct errors. The Supreme Court grants leave to appeal in only 3% of cases where there is either 1) a circuit split or 2) a question of law of general and public importance. Non-binding unpublished opinions are unlikely to be of general and public importance and should never be handed down where there is a circuit split.
An earlier version of this post stated that I regret posting it and am retracting it.
