On Not Creating Precedent in Plumley v. Austin

A couple weeks ago, Justice Thomas, joined by Justice Scalia, issued a dissent from denial of cert in Plumley v. Austin, a criminal justice case. In the main, Thomas’s opinion argued that the decision below was wrong on the merits and conflicted with other circuit decisions. But, in a passage that has sparked some debate, Thomas also argued that the Fourth Circuit below had erred in declining to publish its opinion, allegedly in order to “avoid creating binding law for the Circuit.” Thomas's opinion may be a signal about circuit publication practices and, more specifically, about the proper direction of future Fourth Circuit jurisprudence.

Here is the most relevant portion of Justice Thomas’s dissent, with paragraph breaks added and some cites omitted:

True enough, the decision below is unpublished and therefore lacks precedential force in the Fourth Circuit. But that in itself is yet another disturbing aspect of the Fourth Circuit’s decision, and yet another reason to grant review.

The Court of Appeals had full briefing and argument on Austin’s claim of judicial vindictiveness. It analyzed the claim in a 39-page opinion written over a dissent.

By any standard—and certainly by the Fourth Circuit’s own—this decision should have been published. The Fourth Circuit’s Local Rule 36(a) provides that opinions will be published only if they satisfy one or more of five standards of publication. The opinion in this case met at least three of them: it “establishe[d] . . . a rule of law within th[at] Circuit,” “involve[d] a legal issue of continuing public interest,” and “create[d] a conflict with a decision in another circuit.”

It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the Circuit.

The basic idea here is to flip an argument against granting cert. "True enough," the fact that the decision below lacks "precedential force" is generally viewed as a reason to deny review; but Justice Thomas contends that the opposite is actually true here, because the decision below was issued without publication for a bad "reason"--namely, the desire "to avoid creating binding law."

Justice Thomas appears to have adopted a cautious reading of the Fourth Circuit’s Local Rule 36(a). As Thomas indicated, that Rule states that an opinion “will be published only if” it possesses one or more of the listed traits. That part of the Rule makes it seems like it establishes only a necessary criterion for publication. Yet the Rule elsewhere provides: “Opinions in such cases will be published if the author or a majority of the joining judges believes the opinion satisfies one or more of the standards for publication . . . .” This statement appears to clarify that the listed traits are both necessary and sufficient conditions for publication, if the opinion author or majority of joining judges conclude that any of the traits is present. But Thomas didn’t posit that the Local Rule, on its own, could require publication.

Instead, Justice Thomas apparently assumed that the decision to publish opinions was partly discretionary under the Fourth Circuit’s Local Rules, and then  argued that any such discretion was abused in Plumley. Unable to “imagine a reason,” or at least a legitimate reason, for leaving the decision published, Thomas inferred that the Fourth Circuit panel had acted the way it did “to avoid creating binding law for the Circuit.” Focusing on these remarks, Tony Mauro at the National Law Journal and David R. Cleveland over at Appellate Advocacy Blog have suggested that Justice Thomas’s dissent might assert or revive fairly broad concerns about the practice of issuing unpublished opinions. [UPDATE: Steve Klepper now has a thoughtful take at Maryland Appellate Blog.] As those commentators discuss, some have even argued that the practice of issuing unpublished, non-precedential opinions is unconstitutional. 

But, what’s so wrong with deliberately declining to create precedent? Doing so conserves scarce resources and reduces the risk of mistaken or sloppy precedent. Even the Supreme Court—which has a unique power and responsibility to establish national uniformity—frequently resolves cases on the merits without issuing meaningfully precedential decisions, such as when it resolves stay requests without opinion, or summarily rules on cases within the Court’s appellate jurisdiction. Does Thomas mean to cast doubt on all those unexplained rulings on the merits? Likely not. It would be odd to raise concerns about unpublished opinions while apparently insisting that the Fourth Circuit follow its local rules, which clearly contemplate that many opinions will in fact go unpublished. Instead, Thomas seems to believe that the benefits of precedent-creation  outweigh the costs where, as in Plumley, full briefing and argument has led to fulsome opinions.

There is another way to read Justice Thomas’s opinion: he may be suggesting—albeit without expressly alleging—that the Fourth Circuit was trying to thwart Supreme Court review. (Adam Liptak just provided an interesting take on this possibility in the New York Times.) Earlier this term, I blogged about suggestions from Justices that lower courts have a responsibility to facilitate or at least not thwart review by the Supreme Court. This is a concern that, at different times, almost all the Justices have expressed. If Justice Thomas had that narrower concern, then the implicit message of his opinion wouldn’t be that unpublished, non-precedential decisions are bad, but rather that they shouldn’t be abused to subvert the Supreme Court’s supremacy. On this reading, Thomas would effectively be reminding his colleagues, and the courts of appeals, that unpublished decisions aren’t immune to review.

Extending this point, Justice Thomas’s opinion might have been meant partially or even primarily as a signal that the Fourth Circuit should reverse course. In a previous set of posts, I defined Supreme Court signals as “official actions that don’t establish conventional precedent or resolve ultimate merits issues, but nonetheless suggest, perhaps deliberately, some aspect of how lower courts should decide cases.” In Plumley, it may be that most of the Court—even if sympathetic to Thomas’s position on the merits—was unwilling to correct a non-precedential panel decision that the Fourth Circuit might simply abandon tomorrow. In response, Thomas may have written his dissent partly in order to urge the Fourth Circuit to change course. As with most signals, however, it's unclear whether lower courts will or even should react. For instance, Thomas's opinion could suggest that his view of the merits doesn't currently have majority support.

This signal-based reading has the advantage of making sense out of an otherwise perplexing feature of Justice Thomas’s opinion. Right after the passage block quoted above,  Thomas added a one-paragraph conclusion noting in part that the Fourth Circuit had issued “an unpublished opinion that preserves its ability to change course in the future.” One might think that the Fourth Circuit's future flexibility would count as a straightforward (though not conclusive) reason for denying cert, since it showed that the decision below might not have any broader effect on the law’s development. But Thomas instead immediately concluded: “For these reasons, we should have granted the petition for a writ of certiorari.” Viewing the opinion as a signal helps explains why Thomas would emphasize that the Fourth Circuit could so easily “change course.” Doing so may have undercut the case for cert today, but it also insinuated that, if a course correction doesn’t occur, then the Court might go beyond signaling tomorrow.