Scholarship highlight: The Supreme Court’s misuse of per curiam opinions

Ira P. Robbins is the Barnard T. Welsh Scholar and Professor of Law and Justice at American University, Washington College of Law.  The full version of his article, Hiding Behind the Cloak of Invisibility:  The Supreme Court and Per Curiam Opinions, can be found on SSRN.

The per curiam opinion is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting development of the law.  Per curiams should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality.  Opinions containing language that is more expansive, such as when the opinion expounds on the particular facts or law at issue, should be attributed to its author in order to serve as a check on judges’ fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.

Background

Traditionally, the per curiam opinion was used to signal that a case was uncontroversial, obvious, and did not require a substantial opinion.  The early usage of the per curiam (“by the court”) designation, which first appeared in a published Supreme Court decision in 1862, was consistent with the unity among the Justices that its name connotes.  Over the next few decades, the Court generally used the per curiam to quickly dispose of routine proceedings, such as grants or denials of certiorari, dismissals for lack of jurisdiction, and various motion decisions.  By the turn of the century, the Court also regularly issued per curiams for brief affirmances and reversals of lower court decisions.  These early opinions usually comprised only a sentence or two and never revealed disagreements among the Justices.

Beginning in 1909 with Justice Oliver Wendell Holmes, whose strongly worded separate opinions earned him the moniker “the Great Dissenter,” per curiam opinions began to feature dissents.  The per curiam label – which “falters at its inception” because the opinion is necessarily written by some individual Justice – also began to falter at its conclusion, no longer denoting a resolute bloc of complete institutional support.  The practice of writing separately from per curiam opinions was not fully embraced, however, until President Franklin D. Roosevelt’s appointments to the Supreme Court; they brought a strong sense of judicial individuality and a reluctance to suppress their views in favor of chimerical judicial solidarity.  By mid-century, Justices dissenting from or concurring with a supposedly unanimous and straightforward per curiam opinion had become well-established.

Along with the shift from unanimity to discord that characterized Roosevelt’s Court, the per curiam also saw shifts in usage since its original employment in straightforward procedural matters.  By the 1930s, the Supreme Court had begun using per curiams to decide substantive cases accompanied by oral argument and to develop more thorough opinions.  Beginning in the mid-1900s, the Court expanded the role of the per curiam, fashioning it as a strategic device to resolve time-sensitive cases quickly, as a protective shield from controversial issues, and as a way to make new law by indirection.  Through the per curiam, the Court at times also aimed to convey a message of consensus while engaging in more complicated and substantive decisionmaking.  In addition, the per curiam became a convenient tool for the Supreme Court in deciding controversial cases, because “[w]ith no Justice signing the opinion, there was no individual to be blamed for evading the tough questions.”

Today the Supreme Court issues a significant number of per curiam dispositions each Term.  But the prevalence of issuing unattributed opinions in cases involving more than boilerplate language raises questions about its impact on judicial accountability and development of the law.

Judicial accountability

Individually attributed opinions and publicly recorded votes are the primary instruments for holding appellate judges and Justices accountable, because those opinions are the sole chronicle of their work.  The signed opinion provides the public with a window into the inner workings of the courts that fosters judicial accountability through an environment of individual responsibility.  As then-Circuit Judge Ruth Bader Ginsburg once remarked, “Public accountability through the disclosure of votes and opinion authors puts the judge’s conscience and reputation on the line.”  Thomas Jefferson wrote to the same effect:  “The practice [of writing per curiam opinions] is certainly convenient for the lazy, the modest, & the incompetent.”

When courts use an anonymous veil, they lose not only the environment of transparency and individual responsibility, but often well-reasoned explanations as well.  Again then-Judge Ginsburg:   “Judges generally do not labor over unpublished judgments and memoranda, or even published per curiam opinions, with the same intensity they devote to signed opinions.”  Seventh Circuit Judge Richard Posner agrees that the signed opinion elicits the greatest effort from judges and “mak[es] the threat of searing professional criticism an effective check on irresponsible judicial actions.”

Development of the law

Along with providing for individual accountability, the signed opinion reflects the role of Justices as individual lawmakers.  Each Justice contributes a unique philosophy and style.  Knowledge of these philosophies and styles enables lower courts to develop the law and attorneys to tailor their arguments effectively.  But the per curiam label serves to mask its author’s identity, thus obscuring the author’s jurisprudence, the significance of the decision, and the decision’s potential to affect future cases.  The per curiam thus stunts appropriate development of the law.

Judges express their individual views and personality by using particular words in the articulation of legal standards.  These words can have immense implications for the law, as lower courts, lawyers, and the public attempt to determine what exactly the law “is” based on a higher court’s language.  As one commentator has noted, “[W]hen a court explains its decision in a judicial opinion, literally every word has a potential future effect on someone’s welfare.”

At times, Justices will openly advocate for a favored word or phrase to be adopted as the legal standard.  In other instances, Justices are more discreet about the use of language they intend or hope will affect the law in a desired manner.  Justice Brennan, in particular, was known for inserting ostensibly inconsequential language into the text or footnote of an opinion, only to draw on that language to advance his position in a later case.  He planted these seeds (or ticking time-bombs) strategically, knowing how far his colleagues were willing to go and “crafting legal arguments to which they could, however hesitantly, sign on.”  Although these opinions may not have fully conformed to Justice Brennan’s personal point of view, he was willing to compromise – to draft the opinion in a manner that would allow him to advance his entire vision later and to wait patiently for the appropriate case in which to do so.  Justice Brennan’s practice has not gone unnoticed:  his biographers wrote that “Brennan’s colleagues learned to watch for the seemingly innocuous casual statement or footnote – seeds that would be exploited to their logical extreme in a later case.”

Knowledge of an opinion’s author provides a useful guide for attorneys, allowing them to sort through an array of decisions and examine particular opinions for hints regarding a Justice’s jurisprudential or philosophical leanings on specific issues.  Use of the per curiam strips the opinion of this important tool that judges, attorneys, and the public rely on in analyzing and comprehending court decisions.

Exceptions

Notwithstanding the foregoing arguments, there are instances in which the use of a per curiam is entirely appropriate.  These dispositions generally employ standard language that is silent on the unique facts of the case or application of the law to those facts.  Further, these decisions are truly unanimous; the result is so obvious that no Justice feels compelled to write separately.   While it might be convenient to create a distinction between opinions and orders, reserving per curiams only for the latter category, unfortunately the Supreme Court does not follow clear guidelines in issuing its dispositions.

The specific situations in which use of a per curiam are acceptable include run-of-the-mill DIGs (dismissal of certiorari as improvidently granted) and GVRs (granting certiorari, vacating the judgment, and remanding in light of a recently decided case), or when, for example, the Court bars a litigant from all future in forma pauperis pleading.  Attribution of these orders or opinions would have little value, because the language would not usually address any particular aspects of the case.

However, any language that explains the Court’s reasoning for a disposition, whether factual or legal, implicates the accountability and development-of-the-law concerns described above.  These concerns also arise when one or more separate opinions follow a per curiam opinion or order.  The existence of separate opinions, whether concurrences or dissents, reveals that the matter is not routine and well-settled, but rather that some significant aspect of the case is subject to conflicting interpretations.

Conclusion

Anonymity in judicial decisions – not only in the Supreme Court, but also in other courts of last resort (including de facto courts of last resort, like the U.S. courts of appeals) – should be reserved only for a narrow set of opinions and dispositions in which formulaic, boilerplate language leaves no legitimate room for individual expression.  Beyond those cases, judges and Justices should not hide behind a cloak of invisibility.