Unpublished Opinions: A Response to Judge Jerry Smith

Unpublished opinions are a growing threat to the rule of law

Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has responded to my June 19th post on this blog by e-mail with a critique. My earlier blog post said that the fact that 90% of federal court of appeals decisions are designated as "unpublished" is a growing threat to the rule of law.

Judge Smith does point out correctly that Federal Rule of Appellate Procedure 32.1 states that (for federal courts only): "[a] court may not prohibit or restrict the citation of federal judicial opinions [or] orders designated as 'unpublished' ***"." Rule 32.1, by the way, applies only to decisions issued after 2007—two years after I had stopped teaching Federal Jurisdiction. Before that judges in some jurisdictions could prohibit or restrict the citation of federal judicial opinions or orders by calling them "unpublished".

I am happy to hear that the aspiration of many inferior federal courts not to prohibit the citation of their "unpublished" precedents or orders has now been rendered unlawful as well, as its having always been unwise. Note that this rule does not say that federal courts of appeals are bound by stare decisis to follow their prior "unpublished" opinions. The fact remains, as I stated in my June 19th post, that the federal court of appeals judges are rendering 90% of their decisions in cases that do not bind them as precedent in future cases.

Admittedly most "unpublished" opinions address an issue that has been, as Judge Smith puts it, "definitively decided." If so, all future unpublished opinions should be binding precedent on future panels, which Judge Smith essentially agrees is not the case today. Otherwise, their issuance is, as I said on June 19th, a growing threat to the rule of law.

Judge Smith notes that I erred in suggesting that the Supreme Court never issues a writ of certiorari on an unpublished opinion. I stand corrected on that point.

But, I still think that a U.S. Supreme Court that hears only 60 appeals from the 42,000 decisions issued annually by the federal courts of appeals, not to mention the federal questions decided annually by the State Supreme Courts, see Trump v. Anderson, 601 U.S. 100 (2024) (reversing the Colorado Supreme Court), is much less likely to grant certiorari on an opinion that is not a precedent, than they are to grant certiorari on cases that do create a precedent. After all, the Supreme Court does not sit as a court to correct errors anymore. It only grants certiorari in 3% of the cases before it where there is either: 1) a circuit split; or 2) a question of law of general and public importance. A non-binding unpublished opinion is unlikely to be of general and public importance and should never be issued where there is a circuit split.

An earlier version of this post included material that I now regret posting and that I now retract.