The Foundation for Economic Education —

Does Court Time-Saving Cost Liberty?
Published in The Freeman: Ideas on Liberty - November 2002
by Richard W. Fulmer

The ability of ordinary American citizens to appeal unjust and arbitrary government decisions is being steadily eroded by the federal court system. In the name of efficiency and cost-saving, courts have been discarding time-proven practices such as hearing oral arguments and writing, presenting, and publishing reasoned opinions. These practices, which open the proceedings of the judicial process to reasonable and necessary public oversight, are being curtailed.

Originally, the only federal courts of appeal in the United States were the Supreme Court and "circuit" courts staffed by federal district-court judges and Supreme Court justices "riding circuit." The physical hardship of traveling to these district courts caused the practice of circuit riding to all but cease by the 1840s.1 This left the Supreme Court as the only federal court of appeal until the Judiciary Act of 1869 established nine circuit courts having the same powers and jurisdiction as the Supreme Court justices had when they were riding circuit. (Article III, Section 1, of the U.S. Constitution vests judicial power "in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.")

Court workloads increased with growing federal power, and circuit-court judges quickly found that they had less and less time to spend on appeals. Again, appellate duties shifted back to the Supreme Court. The number of cases requiring Court review rose steadily from 310 in 1860 to 1,816 in 1890.2 This heavy and growing burden was eased by the Judiciary Act of 1891, which abolished the appellate powers of the circuit courts entirely and transferred them to nine new appellate courts. These new Circuit Courts of Appeal (renamed Courts of Appeal in 1948) were each staffed by three judges tasked with reviewing cases to correct any errors made at the district-court level. Since 1891, the number of regional Courts of Appeal has increased to 12 (11 covering at least three states each and one for the District of Columbia), and the number of judges to 167.

Until the early 1970s, oral arguments were heard from the litigants in virtually all cases. After hearing the arguments, the judges on the panel discussed each case in order to learn and consider one another's views. Following a thorough discussion, one or more of the judges, with the help of law clerks, prepared a written opinion. Black's Law Dictionary (6th ed., 1990) defines the term "opinion" as a "statement by a judge or court of the decision reached in regard to a cause tried or argued before them, expounding the law as applied to the case, and detailing the reasons upon which the judgment is based."

The draft of the opinion was then circulated among the panel members and revised in response to their comments. In case of disagreement between the judges, a dissenting opinion might also be produced.

The final copy of the opinion was presented in court and then published. These published opinions became part of the nation's body of law and served as precedent in subsequent cases. If a decision were appealed, the Supreme Court would review the arguments presented to determine whether the lower court's ruling was correct.

Federal power continued to increase throughout the twentieth century because of legislation generated by or during the Progressive Era, the New Deal, the war on poverty, civil-rights issues, environmental regulation, and the war on drugs. As a result, appellate-court caseloads exploded once again. (In 1970 the courts of appeals disposed of over 10,000 cases. By 1997 the number exceeded 51,000). Moreover, the nature of the courts' work changed from dealing primarily with disputes between citizens to dealing with disputes between citizens and federal regulatory agencies. In effect, the court system became the regulator of the regulators.3

Despite the huge increase in workload, Congress chose not to expand the appellate-court system as it had done in the past. Instead, starting in the early 1970s the courts "judicially legislated" a reduction of their own workload by taking a series of shortcuts. First oral arguments were limited and are now the exception rather than the rule. By 1992, they were heard in only about 45 percent of all cases. Even then some courts routinely gave each side only 15 minutes to present its case.4

An Essential Loss

Yet argumentation is essential to the formulation of good judicial decisions. As law professors William M. Richman and William L. Reynolds write, "Oral argument brings the judges together and involves them in the case both mentally and physically-a process which helps the quality of decision making. Argument permits judges to ask questions that the briefs do not answer and to explore alternative theories that the parties have not developed."5

Because of the limits placed on argumentation, judges rely more and more on the briefs presented by the litigants and on summaries of those briefs written by law clerks. This places litigants with limited resources-and therefore with a limited ability to produce quality briefs-at an even greater disadvantage than before. The federal government is a frequent litigant and has extremely deep pockets. Not surprisingly, therefore, in cases in which the appellant is a private citizen and the appellee the U.S. government, the citizen is more likely to win when oral arguments are heard than when they are not.6 Unfortunately, oral arguments are far more likely to be allowed in high-visibility cases, such as antitrust suits, than in cases involving individual citizens.

Another efficiency measure taken was the elimination of the requirement that judges publish their opinions.7 In 1964 the Judicial Conference of the United States, which administers the lower federal courts, recommended that judges publish only those opinions "which are of general precedential value."8 Ten years later, the Federal Judicial Center published a model rule for limiting publication for use by the appeals courts, stipulating that unpublished opinions were not to be used as precedent.9 These new guidelines allow the courts' opinions to be shorter and written with less care than before. By 1979, two-thirds of all appellate-court opinions were unpublished.

The ramifications of this change are many and far-reaching. Our nation's legal system is guided by the principle of stare decisis (literally, "let the decision stand"). This doctrine holds that judges are to be guided by precedent and should look to the past for instruction in reaching a decision.10 Some jurists argue that all rulings should be considered precedent and be respected by the judges. Past similar cases may provide nuances of value to lawyers and judges in future cases. Even in the unlikely event that a new case is identical on every point of law to a previous case, there is value in being able to refer to it. Citing ten precedents will clearly carry more weight in a courtroom or in a brief than a reference to only one or two.

Though unpublished opinions may not be cited as precedent, litigants with deep pockets have the wherewithal to research them for arguments that may be used (without citation) in court. The frequency with which this occurs should suggest that the courts are not always the best judges as to whether their cases will be useful as precedent. Another practical impact of this shortcut is that the Supreme Court is far less likely to review a judgment if the opinion was unpublished. The high court hears only those cases in which important questions of law are at stake, and the fact that a lower court ordered a particular opinion not to be published indicates that the case is of no "precedential value." This may help lower courts to avoid scrutiny and reduce deterrents to corruption.

Another issue is accountability. Judges sign the published opinions they write, while an unpublished opinion is typically issued Per Curiam ("by the court"). The realization that their opinions carry their names and will be reviewed not only by the litigants, but also by the public, the media, and other courts, may lead judges to more carefully consider both the facts and the law associated with each ruling. In the course of putting their thoughts down on paper, it is not uncommon for judges to change their minds about a case. As one jurist put it, the act of writing is a "remarkably effective device for detecting fissures in accuracy and logic. . . . Somehow, a decision mulled over in one's head or talked about in conference looks different when dressed up in written words and sent out into the sunlight. . . . [W]e may be in the very middle of an opinion, struggling to reflect the reasoning all judges have agreed on, only to realize that it simply 'won't write.' The act of writing tells us what was wrong with the act of thinking."11

In 1928, Chief Justice Charles Evans Hughes stated, "[T]here is no better precaution against judicial mistakes than . . . setting out accurately and adequately the material facts as well as the points to be decided."12

Unpublished Order

Perhaps the ultimate time-saving device is the unpublished order (also called an "unpublished non-opinion" or a "summary affirmance"), in which the court simply finds for (or against) the lower court's ruling without any explanation. Conduct more destructive to the system of justice in America can scarcely be imagined. The practice of writing and presenting reasoned opinions results

not only in better judicial decisions, it also provides both litigants and the public with a sense that the issues in a case have been thoughtfully reviewed, due process observed, and justice rendered. This sense of justice done is essential in a country founded on the principle that government rules by the consent of the governed. Courts must not only rule with justice, they must also be seen to rule with justice.

The irony is that, in the long run, these "time-saving" schemes probably result in far more work for the appellate courts. Litigants, angry and confused because they have no idea why they lost, are likely to make follow-on appeals. Lower courts, denied the foundation and guidance that published opinions would have provided, are more apt to issue rulings that will be appealed. Yet in many cases an opinion need be no more than the statement, "Affirmed by the reasoning applied in the case of Smith v. Jones."

Courts have power over people's lives. With the stroke of a pen, they can destroy whole companies. A ruling can strip away people's life savings and all their future earnings-sentencing them to lives of virtual slavery. Judges can deprive an individual of his or her freedom and even of life itself. When courts exercise such awesome power, when they take away life, liberty, the ability to send a child to college, or the hope of a dignified retirement, human decency demands that they at least say why.

Richard Fulmer has a degree in mechanical engineering and works as a systems analyst in Houston, Texas.

1. Rayman L. Solomon, "Circuit Courts of Appeals," in Kermit L. Hall, ed., The Oxford Companion to the Supreme Court of the United States (New York: Oxford University Press, 1992), p. 145.

2. John E. Semonche, "Judiciary Act of 1891," in Hall, p. 476.

3. Rayman L. Solomon, "Courts of Appeals," in Hall, p. 205.

4. William M. Richman and William L. Reynolds, "Elitism, Expediency, and the New Certiorari: Requiem for the Learned Hand Tradition," Cornell Law Review, January 1996, See also

5. Ibid.

6. Ibid.

7. The fact that opinions are "unpublished" means that they are not printed in a book; it does not mean that they are unavailable to the public. Copies of such rulings can generally be requested from the court clerk, and today, most "unpublished" opinions are available on the Internet.

8. Administrative Office of the United States Courts, Judicial Conference Reports 1962-64, 1964, p. 11.

9. Written opinions, published or otherwise, are not required by the Constitution, and fall within the discretion of the courts.

10. The purpose of this principle is not to inhibit progress, but rather to establish and protect the "rule of law," which requires that laws be certain and known in advance. By "discovering" new meaning in a law, a judge is, in effect, writing new law. Such rulings could easily subject defendants to an ex post facto law, which makes an act a criminal offense even though the act was not a crime when it was done. In theory, ex post facto laws are forbidden by Article I, sections 9 and 10, of the U.S. Constitution.

11. Frank M. Coffin; The Ways of a Judge: Reflections From the Federal Appellate Bench (Boston: Houghton Mifflin, 1980), p. 57.

12. Bryan A. Garner, "Style of Opinions," in Hall, p. 608.