Unpublished Opinions that Cannot be Cited

A growing threat to the rule of law

Eugene has raised a fascinating subject with respect to unpublished memorandum opinions that cannot be cited. It is not clear to me that the Article III federal courts have the power, as an original matter, to issue opinions that cannot be cited, are not binding precedent, and that are therefore somewhat unconstrained by the rule of law.

When I clerked on the Second Circuit and the D.C. Circuit from 1983 to 1985, memorandum opinions accounted for only 20% of the docket. Today, in 2024, memorandum opinions account for a stunning 90% of almost all 12 of the Federal Circuit Courts of Appeal. When I was a law clerk, memorandum opinions were drafted by law clerks, received cursory review form an Article III judge, and were an exception to the norm. The fact that 90% of the Federal Circuit Courts of Appeals are now memorandum opinions means that those courts have only a discretionary docket, like the U.S. Supreme Court, and can pick and choose which cases they want to make law with.

All of this reflects the fact that there has not been an increase in the number of lower court judges since 1993, and, since then, the docket of the lower federal courts has tripled. Partisan fights over the appointment of new judges explain the failure to get a new judgeship bill passed by a 60 vote margin by obtaining cloture in the Senate. Moreover, the current sitting 179 Circuit Court of Appeals judges on active duty do not want new federal judgeships created because it would diminish their status to triple the size of the lower federal court judges to match the tripling in caseload of the lower federal courts.

I fear that we are stuck with this phenomenon, but the evils it produces ought not go unnoticed. A judge who can issue an opinion in a case that is not citable is not bound by precedent or the expectations of the parties in deciding each case on its own facts, unbound by the rule of law, and probably unlikely to be reversed by a Supreme Court that only heard 60 cases this year out of the 40,061 cases in 2023.