A couple weeks ago, Justice Thomas, joined by Justice Scalia, issued a dissent from denial of cert
Comments
Two observations:
1) Back when CA4 was thought of as an especially conservative court, liberals complained that it used unpublished opinions to shield conservative dispositions from review by a more centrist Supreme Court. Now, Thomas makes the opposite complaint.
2) One of the more famous non-opinions in recent years was from a CA2 panel, with Judge Sottomayor in the majority, that simply adopted a district court opinion in the Ricci New Haven firefighters affirmative action case. (Judge Cabranes vigorously protested.). Conservatives at the time thought it was a strategy of keeping Sottomayor’s name off of controversial opinions to keep her path clear for a Supreme Court nomination.
I don’t necessarily endorse the views above, but they’re worth mentioning given the topic.
Posted by: Full disclosure | Feb 3, 2015 11:18:05 AM
SCOTUS as suggested by the discussion in effect does something like this, even though they have a much smaller cases that they do anything with except deny review for.
Posted by: Joe | Feb 3, 2015 9:57:47 AM
I don’t understand the “preserving resources” point. Don’t precedents preserve resources? Courts do not have to keep deciding the same questions. As for “mistaken or sloppy precedent,” surely the answer is that courts should be as careful as possible in every case. Aren’t litigants entitled to that? And aren’t they entitled to have their case decided in a way consistent with how the court has decided similar cases?
Posted by: Michael Winger | Feb 2, 2015 4:58:23 PM
Great post.
As you indicate, some (myself included) have attacked this practice on constitutional grounds. The constitutional grounds vary, but more to your question as to “what’s so wrong with deliberately declining to create precedent? Doing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent,” the answers to that question vary as well.
There is pretty strong evidence that courts regularly engage in “precedent-stripping” for strategic reasons having nothing to do with persevering resources. And, perhaps more to the point, if the purpose of the practice is to “preserve resources,” how exactly does the practice achieve this purpose? What do the specific answers to this question tell us about the thoroughness of the process appellate courts provide appellants in the relevant cases?
In any event, among the strategic reasons alluded to are (1) discouraging Supreme Court review, (2) discouraging en banc review, (3) decreasing the likelihood that the legal community will even see what a panel has done in a particular case, and (4) circumventing the formal and binding resolution of complicated/controversial issues, namely those that the panel members would prefer to let “percolate” a while longer.
Posted by: Edward Cantu | Feb 2, 2015 12:56:20 PM