Our Potemkin Village

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Repairing the System

The Devil is always in the details.  In an earlier post  I  commented on Judge Jed Rakoff’s  statement that our celebrated  jury trial  accounts for less than  3 percent  of convictions in federal court; the rest are the consequence of plea bargains in which the prosecution usually has the upper hand.  https://guileisgood.com/2014/12/03/im-here/

Now Adam Liptak of the NYT reports that 88 percent of appellate opinions in the federal system have no precedential  value in the decision  of future cases.      http://www.nytimes.com/2015/02/03/us/justice-clarence-thomas-court-decisions-that-set-no-precedent.html   But an appellate opinion without precedential value is like a burger without beef.   It lacks an essential ingredient.

The opinions in question are called “unpublished” opinions. They were originally meant to be seen only by the parties to the individual case, but Liptak tells us they are now widely available to the public.  They are an exercise in ad hoc justice; they decide the issue between the parties without any precedential  effect on future cases.

But that’s the problem.  The canons of  legal reasoning do not permit appellate courts to hand out ad hoc justice.  Judges are required to craft an opinion that is consistent with prior cases and intended to be followed in similar cases in the future.  This prevents judges from achieving a result in one favored case by use of principle they are not willing to have applied across the board.   Or as Justice Stevens diplomatically puts it, “occasionally judges will use the unpublished opinion as a device to reach a decision that might be a little difficult to justify.”

The evil this requirement of treating like cases alike combats is well illustrated by the majority opinion in Bush v. Gore.  Bush v. Gore, of course, was not an “unpublished opinion”, but it is a good example of a court deciding a case by a principle it does not wish to have applicable to future like cases.

In Bush v. Gore, a five justice majority decided to award the 2000 presidential election to George Bush.   It even had a theory that would achieve that result: the Florida Supreme Court had violated the Equal Protection Clause by not mandating “specific standards” to be applied statewide in determining the validity of challenged ballots.

The problem was that the five conservative justices who wanted to rule in Bush’s favor did not believe in expansive use of the Equal Protection Clause to invalidate decisions by state officials, especially in the area of elections. This all smelled of the hated “judicial activism” of the Warren Court.  They feared the  decision for Bush would come back to haunt them in future cases where it would be cited in favor of federal court intervention in election cases.

So they solved the problem by adding a footnote to their opinion—“Our consideration is limited to the present circumstances, for the problem of equal protection in election cases presents many complexities.”  The Bush v. Gore decision would have no precedential value in future cases.   It would be a unique disposition.

But our system of legal reasoning doesn’t work that way, or at least, it shouldn’t work that way.  As no less an authority than Justice Scalia said in another context “The Supreme Court of the United States does not sit to announce “unique” dispositions” (quotes in the original). Or as Professor Margaret Radin puts it:  “Bush v. Gore looks like a legal opinion, but it isn’t a legal decision, because it’s outside the boundaries of acceptable argument.”  (I discuss Bush v Gore at greater length and with notes to the above quotes  in Chapter 5 of the book Guile is Good.)

The unpublished opinions Liptak describes suffer from the same vice; they  decide an individual  case but ignore the requirement that the opinion’s reasoning  guide future cases,  a requirement that is designed to prevent  judicial abuse.   This results in partial justice in more than one sense of the word.   Now we find that the “unique disposition” tactic used in the severely criticized Bush v. Gore is a staple of the vast majority of federal appellate cases.

Liptak tells us that defenders of the practice of non-precedential opinions argue that they are justified by necessity.  There are just too many cases to demand that judges fit them all into the web of precedent.  This sounds a lot like the justification for plea bargains–   the system would crash without them.    Those fears may or may not be true. But I think we should also recognize another looming evil.  The legal system that Rakoff and Liptak tell us actually exists  in our courts  has little resemblance to the picture of law we celebrate on Law Day, a picture that  looks more and more like a Potemkin Village






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