Are Unpublished Opinions Inconsistent with the Right of Access?

November 19, 2018

By the end of their first week in law school, law students have all learned at least one thing: the Federal Rules of Civil Procedure (“FRCP”) are very important. The FRCP lay out the structure through which civil cases are litigated in the federal system. They include everything from the high-level philosophical concerns motivating our civil disputes adjudication system (see Fed. R. Civ. P. 1, providing that the rules should secure “the just, speedy, and inexpensive determination of every action and proceeding”) to concrete requirements like deadlines for submissions (see, e.g., Fed. R. Civ. P. 36(a)(3), which mandates that responses to requests for admission be made within 30 days).

Given that the FRCP govern a huge portion of American litigation, they are remarkably short—they can even be printed in pocket editions with a reasonable font size. Such brevity means the rules sometimes lack detail, leading courts to supplement the FRCP with local rules and chamber rules in which districts or individual judges provide further details for how the requirements embodied in the FRCP will take effect in their own courtrooms.

MFIA’s Sealed Cases Research and Accountability Project (“SCRAP”) provides judges research and recommendations on how to write their own rules and how to construe the FRCP. The work SCRAP does is focused on improving judicial accountability and transparency by ensuring that judges implement rules in ways that comply with the common law right of access to judicial proceedings. The common law right of access allows the public to “to inspect and copy public records and documents, including judicial records and documents.” As a means of ensuring judicial accountability, the right functions to increase “confidence in the administration of justice” in the federal courts. Rules of civil procedure—whether they be the FRCP, local rules, or chamber rules—shape the public’s access to judicial proceedings.

SCRAP is not alone in its efforts to vindicate the right of access through rules-focused research and advocacy. SUNY Buffalo School of Law’s Civil Liberties & Transparency Clinic, for example, worked with the New York Civil Liberties Union and the Knight First Amendment Institute to develop a model rule for the sealing of judicial records. Such work is motivated by an understanding that judicial transparency is necessary for the public to verify whether the federal government is functioning properly. The Second Circuit has recognized this:

Although courts have a number of internal checks, such as appellate review by multi-judge tribunals, professional and public monitoring is an essential feature of democratic control. Monitoring both provides judges with critical views of their work and deters arbitrary judicial behavior. Without monitoring, moreover, the public could have no confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings. Such monitoring is not possible without access to testimony and documents that are used in the performance of Article III functions.

While there are certain circumstances under which other important concerns, such as privacy rights or national security, are balanced against the need for transparency, the common law right of access maintains a “presumption” of public access to judicial records.

Though MFIA and others are doing important work in ensuring access to improperly sealed judicial records, there is another area of judicial action in which the relevance of the common law right of access is underexplored: unpublished judicial opinions.

Justice Sonia Sotomayor’s Supreme Court confirmation hearings provide an illustrative example of why it may be time to more fully consider whether the practice of unpublished opinions is consistent with rationale underlying the right of access.

While she was a judge in the Second Circuit, then-Judge Sotomayor was part of a three-judge panel that, as The Christian Science Monitor noted, “handed down a brief, unpublished, unsigned summary order disposing of [a] case without offering even cursory legal analysis.” The case was Ricci v. Stephano, in which firefighters from the New Haven Fire Department sued the city claiming discrimination under Title VII of the Civil Rights Act of 1964. The case dealt with important and novel questions regarding the constitutionality of certain affirmative action practices as well as questions regarding competing provisions of Title VII. Cases addressing issues of such importance to the public should be accessible.

Traditionally, when a court adjudicates a case, a judge writes an opinion which explains the reasoning underlying the court’s decision. Those opinions are then published in official reporters—services that compile judicial opinions from various courts. Such reporters are accessible in print or through legal research tools like Westlaw or Lexis Nexis.  Though access to services like Westlaw or Lexis Nexis may be expensive, under the traditional model, there was a least some guarantee that judicial opinions—the primary means through which courts explain their decision-making—would be available for public inspection somewhere. However, since the 1970s, due to a rapidly growing caseload, it has become increasingly common for courts to diverge from the traditional model of opinion writing and publishing.

Today, the vast majority (an estimated 80%) of federal court decisions remain unpublished. Unpublished opinions are generally shorter than published opinions and contain only brief explanations of the court’s reasoning—usually no more than a couple of paragraphs. Though cases resolved through unpublished opinions make up a large portion of the work of the federal judiciary, the reasoning judges used to adjudicate those cases remains largely inaccessible. Many unpublished opinions are available in the Federal Appendix—a reporter dedicated to unpublished, non-precedential opinions—or on Westlaw or Lexis. But because there is no officially-recognized, systematic way of compiling and accessing these opinions, it is likely that some of these unpublished opinions are excluded from those services.

Simply speaking, the majority of unpublished opinions will never be scrutinized by the public. In fact, it is unlikely anyone would remember the Ricci case had one of then-Judge Sotomayor’s colleagues, fellow Second Circuit Judge Jose Cabranes, not read a brief comment about the case in a newspaper and chided the panel, calling for en banc review.  Eventually the panel was reversed, 5-4, at the Supreme Court. In the Ricci case, it was only because of luck—Judge Cabranes just happened to have stumbled upon the case—and not because of the appropriateness of the process, that the public became aware of the importance of the case.

Both judges and scholars have written (positively and negatively) about the role of unpublished opinions in our judicial system. At least one critic has argued that, as a matter of due process, unpublished opinions are unconstitutional. When asked about unpublished opinions, Fifth Circuit Judge Jerry E. Smith commented that “court[s] should not maintain a system that limits [unpublished opinions’] ready availability” since such a system limits the tools available to small-firm and pro se litigants.

During her confirmation hearings, then-Judge Sotomayor had to respond to accusations that the panel had not published the opinion in order to hide it—to prevent it from being scrutinized or appealed to the Supreme Court. Then-Judge Sotomayor pushed back, arguing that there was no such intent. The questions, however, point to a central concern underlying courts’ recognition of the common law right of access: The people need to be able to hold the judicial branch accountable and, in the Ricci case at least, it seemed to some like judges were getting away with something inappropriate. The option to not publish the opinion prevented full accountability.

Especially considering concerns that the federal judiciary is increasingly and damagingly politicized, it is extremely important that the public can scrutinize judicial decision making, something not possible if judicial opinions are inaccessible. In a system where the vast majority of adjudications are inaccessible and in which judges may choose which, if any, opinions are available for scrutiny, judicial accountability is nothing more than a myth. Because the federal judiciary is unelected, “reasoned analysis stands as the core feature of legitimate judging,” and the "preparation of a written opinion might be deemed an essential component of a legitimate decision.” When opinions are inaccessible to the public, there is no means of ensuring that legitimating process has taken place. In the case of then-Judge Sotomayor, she was questioned about her motivations in the Ricci case because the lack of a reasoned opinion reflected the lack of a legitimating process.

The policy rationales underlying the common law right of access highlight the problems with unpublished opinions. Unpublished opinions insulate judges from public scrutiny for their actions in an official capacity. As the Ricci example shows, unpublished opinions prevent the public from having the “confidence in the conscientiousness, reasonableness, or honesty of judicial proceedings” that the Second Circuit understands the right of access to provide. Considering that (1) the common law right of access ensures the public’s right to access “judicial records”, (2) judicial opinions are clearly judicial records, and (3) the practice of unpublished opinions prevents access to a systematic, official, compilation of opinions, we should ask whether unpublished opinions are consistent with the right of access.

I believe it may be time to reconsider rules of civil procedure—whether the FRCP, local rules, or chamber rules—in light of the prevalence of unpublished opinions. In 2006, the Supreme Court altered Rule 32 of the Federal Rules of Appellate Procedure to prevent circuit courts from prohibiting citations to unpublished opinions. Though that change mitigated some earlier concerns regarding unpublished opinions, it did not address the concern discussed in this post. I think it is time once again to consider the role unpublished opinions have in our justice system—with a focus on whether unpublished opinions undermine the undermine the rationale embodied in the common law right of access to judicial records.

Currently, the FRCP do not include any provisions regarding accessibility to unpublished opinions. In fact, the FRCP’s lack of guidance regarding unpublished opinions has led the different circuits to take several approaches when deciding whether or not to publish opinions. The Seventh and Eighth Circuits, for example, have a default rule that opinions not be published, while the First Circuit takes the opposite approach.  Other circuits use various multifactor balancing tests to decide whether to publish. This means that, in many cases, vindication of the public’s right of access depends largely on location—something fundamentally at odds with the accountability and transparency concerns underlying motivating the right of access.

There is likely no perfect solution to the issues created by unpublished opinions. But reassessing the rules of procedure to see if there are any means of mitigating the negative impacts unpublished opinions have on the right of access may be a good place to start. Advocating for rules changes can be an iterative process in which the efficiency concerns that first motivated the use of unpublished opinions are addressed alongside the need for accountability and transparency.