Are some opinions unpublished to avoid review? Thomas dissent highlights the issue
Justice Clarence Thomas pointed to a “disturbing aspect” of a recent ruling by a federal appeals court when he dissented last month from a Supreme Court decision to deny certiorari.
In his Jan. 20 dissent (PDF), Thomas said the court should have granted cert in Plumley v. Austin to review an unpublished decision by the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals. Thomas’ dissent, joined by Justice Antonin Scalia, suggested the appellate decision was unpublished because of a desire to avoid binding law.
Unpublished decisions resolve the issue before the court but don’t create binding precedent. Eighty-eight percent of decisions by federal appeals courts have an unpublished designation, though they are widely available in legal databases and websites, the New York Times reports in a column by Adam Liptak. Thomas’ opinion appeared to suggest that the 4th Circuit was acting strategically to avoid review of the ruling, according to Liptak.
Thomas said the Supreme Court should have granted review to resolve confusion over a presumption of judicial vindictiveness that applies when a judge imposes a more severe sentence upon a defendant after a new trial. In an unpublished opinion, the Richmond, Virginia-based 4th U.S. Circuit Court of Appeals had found the presumption applied.
“True enough, the decision below is unpublished and therefore lacks precedential force in the 4th Circuit,” Thomas wrote.
“But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review. The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent. By any standard—and certainly by the 4th Circuit’s own—this decision should have been published. …
“It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.”
The Times points out that Thomas isn’t the only Supreme Court justice to have raised questions about unpublished opinions. In a 1991 dissent, Justice Harry A. Blackmun said nonpublication “must not be a convenient means to prevent review.”
Justice John Paul Stevens said in a 2006 interview he was more likely to grant review of unpublished decisions “on the theory that occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little hard to justify.”
University of Georgia law professor Erica Hashimoto, who represented the prisoner in Plumley, said courts resort to unpublished opinions because of the crush of their workload. In a recent one-year period, the Times says, the 4th Circuit resolved about 4,000 cases, amounting to 267 cases for each of its active judges.