Unpublished Opinions: A Response to Judge Jerry Smith

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 in a blistering 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 My earlier BLOG post said that the fact that 90% of federal court of appeals decisions are designated as “unpublished” is a growing threat to the rule of law. I was initially not going to respond to Judge Smith’s criticisms, but I am compelled to do so, especially since Judge Smith plans to respond to me publicly if I do not retract my BLOG post. I neither can, nor want to retract my BLOG post. Hence, it is Judge Smith who has created the need here for a public airing of our disagreement.

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only): “[a] court may not prohibit or restrict the citation of federal judicial opinions [or] orders designated as ‘unpublished’ ***”.” I was not aware of this rule when I wrote my June 19th post, since I have never taught civil procedure nor have I ever claimed that I had taught civil procedure. I claimed to have and did teach Federal Jurisdiction at Northwestern Law School from 1990 to 2005.  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in some jurisdictions could prohibit or restrict the citation of federal judicial opinions or orders by calling them “unpublished”.

I am happy to hear that the aspiration of many inferior federal courts not to prohibit the citation of their “unpublished” precedents or orders has now been rendered unlawful as well, as its having always been unwise. Note that this rule does not say that federal courts of appeals are bound by stare decisis to follow their prior “unpublished” opinions.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.

This is a threat to the rule of law, since some judges will be more cavalier about issuing opinions that are not binding precedent than they are about issuing opinions that do bind future appellate panels as a matter of law. At a minimum then, Federal Rule of Appellate Procedure 32.1 should be amended prospectively to obligate all federal inferior court judges to give the same weight as precedent to unpublished opinions as they give to published opinions. An important constraint on judicial power comes from a judge knowing that an unpublished opinion that he or she issues may come back to bite them in some future case with different and perhaps less sympathetic parties.

Judge Smith cryptically writes in his email that: “A new unpublished opinion isn’t binding on future panels; that has nothing to do with whether a panel that issues an unpublished opinion is bound by prior opinions.”  I am glad to hear the Judge say that, but I know for a fact, based on my experience, as a law clerk in the 1980′s, that even then, the 20% of opinions that were designated as “unpublished” received much less attention from federal court of appeals judges than did published opinions.

They were sometimes drafted by law clerks in chambers, other than those of the judges for whom I clerked, who were straight out of law school. 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 it is obvious 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.

Judge Smith notes that “There can be unpublished opinions that are lengthy and complex and that reflect a huge amount of attention by the individual judges.  A good example is a case in which I wrote a long dissent criticizing the fact that is was unpublished:  Sambrano v. United Airlines, 2022 U.S. App. LEXIS 4347, 2022 WL 486610 (5th Cir. Feb. 17, 2022) (unpublished).” Good for Judge Smith. Nevertheless, I still  believe that there should be a rule requiring that all federal appellate opinions and orders, especially when there is a dissent, ought obviously to be published and should have the same weight as a matter of precedent that is given to published opinions.

Judge Smith writes in his email that I “make the same huge mistake today that you made a few years ago when, in a nakedly political effort to give a new President scores of new judgeships, you accused the 179 circuit judges of writing sloppy, irresponsible opinions because they are hopelessly overworked.” The point I made in that prior op-ed remains true today: inferior federal court caseloads have tripled in the more than thirty years since the last bill was passed to create new federal judgeships. Obviously, a tripling in the caseload requires an increase in the number of federal judges to prevent greater reliance on law clerks and Magistrate Judges who are not nominated by the President, confirmed by the Senate, and who do not have life tenure.

Judgeship bills were argued for and were passed during the Carter, Reagan, and first Bush Administrations, and no-one thought that they were “nakedly political”, or that they sullied the reputation of the then-sitting inferior federal court judges. They were a response to an unusual increase in the caseload, which required the creation of new inferior federal court judgeships, or, in the case of the Carter Administration, an effort to make the federal bench more diverse as to race and gender. In 1789, Congress created only 16 inferior federal court judgeships, and today there are 857 inferior federal court judges like Judge Smith and that is not counting the federal circuit court and district court judges who may still hear cases but who have taken senior status.

No-one assumes that the increase in the size of the inferior federal judiciary over the last  200 years was not necessary given growing caseloads. Nor did the Congresses and Presidents who approved those judgeship bills mean to engage in “nakedly political” acts. Nor did the adoption of those judgeship bills call into question the reputations, integrity, or adherence to their oath of office of the then sitting inferior federal court judges.

Far from being a “nakedly political” act, I am of the view that new federal inferior court judgeships should be created, today in 2024, even though I am a strong Republican Trump supporter (since the primaries in which I supported Nikki Haley), and even though the Democrats, in 2024, control both the presidency and the Senate. Unfortunately, the politicization of the federal judiciary has reached a point where no judgeship bill can ever be adopted, no matter how urgent the public need, without one party controlling the White House, the Senate and the House, and without the support of 60 Senators to achieve cloture in the Senate.  This means that no future judgeship bills can be passed without a partisan deal that the number of new judges appointed be equally drawn from the Democratic and Republican parties, which would probably be a good thing.

It is ironic that Judge Smith is so opposed to the obvious need for a new judgeship bill, since Judge Smith himself was appointed to a new seat, in 1987, created by 98 Stat. 333, as a result of a bill passed in part to create new federal court of appeals judgeships. If he believes his appointment was the result of a “nakedly political”act, Judge Smith should resign immediately or at least take senior status, which he has refused to do even though he is now 77 years old, and he has been eligible to take senior status since November 7, 2011.

Judge Smith closes his e-mail to me by saying: “Please also understand how much I personally and professionally resent your statement that all of us 179 active circuit judges “do not want new federal judgeships created because it would diminish their status . . . .”   In saying that, you sully, for judges appointed by the last seven Presidents, our integrity and our adherence to the oath of office.  I assume you thought that through before penning it.”

Yes, Judge Smith, I did think this through before penning it, and I have been opposed to the issuance of unpublished opinions that have no weight as precedent ever since their evil was pointed out to me as a law student by then Yale Sterling Professor of Law, Joseph Goldstein in 1982. I do not by making this common criticism “sully” the reputation of all 179 federal court of appeals judges nor do I sully the reputation of the senior federal court of appeals judges, of whom there are currently 70, one of whom happens to be my Uncle Guido Calabresi, who is a Senior Circuit judge on the Second Circuit, who I love and admire. In fact, I deeply respect almost all of the federal circuit court and district court judges who I know—both those on active duty and those who have taken senior status, although I think they are all over-worked.

I assume that all federal inferior court judges follow their oaths of office, and, until today, I assumed that you, Judge Jerry Smith, had a judicial temperament. Indeed, in part for this reason, I was personally the cause of your appointment to the Fifth Circuit when I was heavily involved in the making of federal judicial appointments in the Meese Justice Department of the Reagan Administration. Until I received your e-mail today, I had been proud of my predominant role in your judicial appointment.

I personally and professionally resent your e-mail, which you plan to publish, both as a law professor, for 34 years at Northwestern Pritzker School of Law, and as a former law clerk to two of the greatest federal Court of Appeals judges of the last 60 years: Ralph K. Winter and Robert H. Bork, as well as for Justice Antonin Scalia in 1987-1988. I also personally and professionally resent your email having had the great privilege of serving as a top aide to Attorney General Ed Meese and then as an aide to Ken Cribb on the Second Floor of the West Wing of Ronald Reagan’s White House. I know for a fact that the new federal judgeship to which you were appointed was not a “naked[ly] political” act that “sullied” the reputation of the then sitting inferior federal court judges.

I now think that the power, and life tenure, you have had in the 36 years since your appointment has gone to your head and has turned you into an arrogant bully who throws a hissy fit over a BLOG post trying to intimidate a mere private citizen, and who has refused to take senior status for twelve years even though you have been eligible to do so since November 7, 2011. You are like the character Gollum in J.R.R. Tolkien’s The Hobbit and The Lord of the Rings who has, after 36 years in power, been corrupted by wearing the ring of power for too long. You are a walking, living example of why federal judges should not have life tenure as active duty judges, but should be required to assume senior status after 18 years. You have become a part of the problem with the federal judiciary, and not the solution, which you were meant to be, in 1987, when President Ronald Reagan appointed you on the advice of Attorney General Ed Meese.

Oh, and by the way, I am opposed to life tenure too for law professors who have stopped publishing or who are awful teachers. The role they play in faculty appointments and governance is atrocious and disgusting. As Lord Acton said: “Power tends to corrupt and absolute power corrupts absolutely.”

The post Unpublished Opinions: A Response to Judge Jerry Smith appeared first on Reason.com.