The issue of unpublished opinions has received extra attention this past week thanks to a dissent to a denial of certiorari by Justice Thomas. His opinion criticizes the Fourth Circuit for using an unpublished opinion to allow itself to decide important cases without create binding law. Though much of the mediacensure of the Fourth Circuit has focused on its high use of unpublished decisions, that’s not what Justice Thomas was getting at. The percentage of unpublished decisions has risen sharply in all courts over the last 30 years. The percentage of unpublished appellate decisions has risen from 50% of all decisions in 1980, to 70% in 1990, to 80% in 2000, and currently now sits at 88%. In many circuits, including the Fourth, only one out of every sixteen decisions are published and are considered to be binding precedent. But these high numbers are only a symptom of the enormous caseload shouldered by federal appellate judges—who must often draft short and simple opinions, especially in cases where the law is clearly defined.

But Justice Thomas’ frustration with the Fourth Circuit is not about the volume of unpublished decisions. He decried the panel’s decision to craft a well-reasoned 39-page opinion on an issue of some importance, complete with a dissent, and then choosing to leave it unpublished. The issue, I believe, is that some circuits are treating unpublished decisions as a “proving ground” for difficult subjects. As explained here, the circuit may wait until there are multiple decisions – sometime contradictory – on an important subject before a panel feels comfortable with binding the circuit to a position. Some other circuits appear to be using a similar approach.

The Fourth Circuit is lowering the number of precedential decisions, and slowing the development of the law, in return for achieving more consensus on precedent within the circuit. Put another way, the circuit is acting a little bit like a certiorari court—picking and choosing the right issue at the right time to guide the development of the law. One gets the feeling from his dissent that Justice Thomas would rather have the Fourth Circuit make its own precedent and allow the Supreme Court to decide when to take certiorari. The Sixth Circuit is no stranger to unpublished opinions, which comprise nine out of every ten of its opinions. But unlike some other circuits, the Sixth Circuit frequently cites and relies on its unpublished opinions as having both persuasive and precedential value–even if that value is not quite as high as that afforded to a published opinion.