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Monday, June 15, 2015

Why Indeed?: A Few Words in Favor of Per Curiams

At the CoOp blog, Gerard Magliocca has an interesting post, with even more interesting comments, on the use of per curiam opinions by lower courts. I am not terribly interested in the occasion that drove it: a per curiam opinion of the Fifth Circuit upholding Texas abortion regulations. The case is substantively important, of course. But the concerns evoked by the issuance of the opinion per curiam--in effect, how do we know how to blame for such an important opinion?--are, like recent concerns about the possibility that the Supreme Court might hear appeals from three-judge district courts that are actually composed of conservatives, arguably too driven by present concerns and thus too subject to inconsistencies and short-term thinking. Still, I think this is an instance in which a discussion evoked by transient political matters eventually ends up raising more interesting, and perhaps more deeply political, questions than it was intended to. The question is raises for me is this: Why shouldn't all panel decisions, except for those few in which no one else joins the opinion itself, be per curiam? 

In his post, Gerard asks bluntly "whether per curiam decisions should still exist," arguing that "[w]e deserve to know who wrote a published opinion" and that, except in cases of true shared authorship, the per curiam opinion is the product of "fear [of] public scrutiny and accountability."

In the comments, Orin Kerr, in that way he has, asked of the statement that we deserve to know who wrote a published opinion, "Why?" The responses were to be expected and had to do with transparency and accountability. In particular, for present purposes, Magliocca argued that it is sometimes helpful to know who wrote a particular opinion, and--probably the major motivating factor for most general discussions of this kind--that "knowing authorship matters when a circuit judge is nominated to the Supreme Court." He received interesting pushback--including a comment by regular Prawfs commenter "Joe," who wrote, as I will here, "Query the reasoning in having the author's name there at all. It is not really obligatory when you think about it." Finally, Magliocca ended the thread with what felt distinctly like an expostulation: "If knowing authorship of majority opinions is unhelpful or unnecessary, then why ever say who the author is?"

Why indeed? Why not insist, or prefer, that American federal appellate court majority opinions be per curiam as a general rule? Magliocca seems to take it as obvious that the present practice of generally signing such opinions is correct and that we would be worse off if the practice changed. I'm not so sure about that. I wonder whether a more systemic cost-benefit analysis does not favor moving to a practice where appellate court opinion authorship is generally not noted.  

As we saw, Magliocca closes with what seems like a somewhat exasperated rhetorical question: "If knowing authorship of majority opinions is unhelpful or unnecessary, then why ever say who the author is?" In assessing the practice, that's not the right question. The right question is whether, all things considered, knowing the author of a majority opinion is more helpful and necessary than otherwise. In asking that question we must consider the negative as well as the positive consequences of signed authorship.

The general argument for noting authorship is that it enhances political accountability and helps future litigants. But the opinion itself still exists and serves much of that function. As Orin and others note, moreover, joining a per curiam may just as easily be taken as indicating that all the judges are accountable for the opinion. We lose some accuracy in pinpointing the author for purposes of blaming/praising him or her in the event that the author is nominated to the Supreme Court. But it's hardly clear that our rules should be organized around such a low-probability event; that's like forbidding outdoor swimming everywhere because lightning may occasionally strike somewhere. And, in any event, Senators and others have more than enough incentive, for better or worse, to blame or praise a nominee who comes anywhere near a controversial opinion. Thus, I'm not sure we gain that much by limiting per curiam opinions, or lose that much by disfavoring signed majority opinions.

Furthermore, there are interesting potential costs to the current practice of having individual judges generally sign an appellate opinion. They concern what I take to be at bottom a political question of a larger and more systemic, if vaguer, sort having to do with the American judicial, or "politico-judicial," culture. I will spell that out at decidedly undue length. 

We could have had, of course, a practice more closely following the older English practice by rendering all appellate decisions seriatim, forcing lawyers to piece together a holding more painstakingly from several opinions. For a variety of reasons, we don't do that, but instead generally rely on a single majority opinion where sufficient votes obtain. Whatever the historical reasons or justifications for such a practice, there are fair reasons why single majority opinions make sense today. Using seriatim opinions may make more sense in certain circumstances: 1) A legal environment with fewer cases and decisions altogether, so that the costs of piecing together decisions are not too great or worrisome; 2) a more common-law and less statutory diet of cases; 3) a legal establishment in which the interpretive community is smaller and more homogeneous, and in which the primary interpreters, like barristers, themselves serve a quasi-judicial role (on this, see this book by Judge Posner); 4) a legal and political culture in which more importance is attached, and more constraint derived from, the personal reputation and honor of the individual judge.

This is not our system anymore and hasn't been for some time. Given the mass of cases and judicial opinions issued, a huge number of them in statutory and/or agency cases, the judicial role here is closer to a modern bureaucratic/administrative function. Clarity and guidance are arguably more important, and personality much less important (and, because of the role of law clerks, much less apparent from most judicial opinions). Practicing lawyers themselves don't provide enough of the extra clarity or impersonality, because they are too numerous and heterogeneous, too competitive, and don't serve as significant interpreters of or gatekeepers for the law. And, whether or not the honor culture ever worked effectively in constraining individual actors through the risk that they might be publicly exposed as lacking in character, we certainly do not live in an honor culture today. Even the elite population is too large and politically polarized. There are always supporters willing to disagree about what counts as "good character" or excuse away any departures from it. And notoriety is almost as valued as widespread public esteem. We might be better off, on the whole, routinizing and emphasizing the bureaucratic/administrative function of the courts than insisting on those aspects of the system that maintain or encourage idiosyncrasy or personality. This, too, for what little it's worth, is a form of transparency: pitiless candor about what the system really is, as opposed to American lawyerly romanticism about what it used to be.

Moreover, with particular regard to the concerns raised by Magliocca about Supreme Court nominations, and also with regard to some more general aspects of our current judicial culture, we might think about the ways in which encouraging signed authorship of majority opinions on the lower appellate courts subtly reinforces some of what one might argue are the greatest flaws of that culture. It is a commonplace that, at least in the United States, law is a form of politics by other means and that individual judges fight for various political causes and (rather crude, partisan) ideologies through their opinions. It is also fairly uncontroversial, I think, that judicial nominations are often highly politicized; that the parties use nominations as an occasion to campaign and (especially) raise funds and, to a lesser degree, even expend some energy and political capital on nominations; and that some or most judges who stand out as potential high court nominees are particularly and prominently political. 

What is true, I think, but less often noticed, is that the practice of having individual appellate judges sign the majority opinions they write, and of distrusting more bureaucratic practices like per curiams, is not only a product of that culture, but may also reinforce and encourage that culture rather than restraining or counteracting it. This is apparent, to some extent, in the degree to which Magliocca thought it obvious that we care, and should care, about individual judges and their character, and about their chances in the nomination process. It reflects Americans' preoccupations in politics with individuals and their personalities; with highly publicized individual issues and decisions rather than with more systemic questions of process, policy, and the greater good (or efficiency, or what have you); with leaders as opposed to worker bees, heroes and villains, and so on. It encourages us to associate opinions closely with judges as their "authors," rather than thinking of judicial opinions as the product of nominal "judges" that are actually corporate units embracing both the judge and the law clerks who write most of those opinions. Not incidentally, it also encourages both law clerks and judges to link clerkships and clerk hiring to the political character and mission of individual judges. And it encourages judges--some of whom surely need no extra encouragement!--to think of themselves in largely egocentric and generally political terms, to think of themselves as heroic figures rather than relatively anonymous official actors in a routine system, to think and act as individual generals (of the idiosyncratic "blood-and-guts" type rather than as less heroic logisticians) on a substantially political judicial battlefield. To the extent that this allows individual judges to emerge more easily as prominent figures through media coverage, either as a general matter or around the time of judicial vacancies, that media coverage and the cultural message it reinforces influences the public, the executive and legislative branches (both of which are highly conscious of public perception, and many of whose staffers are deeply invested in the heroic and political vision of judges), and even the judges themselves, who are hardly immune from media flattery or from the influence of social norms and narratives. 

All of this culture is, without doubt, strongly ingrained. The point is not that getting rid of individual signed majority opinions and instead making a norm of per curiams would somehow eliminate all this overnight. (Leaving aside whether doing so would actually be a good thing. I think it might be. But many people, and certainly many elite Americans, like feeling as if they are romantic and important actors in heroic times, fighting heroically for the cause of the good. They do not want to think of themselves as cogs, or ask how the system might be changed to encourage them to be better, more easily substitutable cogs. It's hard to blame them for that, although it's far from clear that this is conduces to the betterment of the system or the nation.) It is that, contrary to my reading of Magliocca's post and the spirit behind it, it is far from obvious that the current norm, with the heroic, individualistic, and partisan judicial/cultural mythos it suggests and reinforces, is good. We might indeed be better off not generally knowing who the author of a majority opinion is. It might help starve those individual judges who positively want to be lionized for being strongly political actors of oxygen, lower the noise of our rather juvenile nomination process and politics, and reduce the incentives for individual judges to act as anything other than orderly, impersonal, obedient facilitators of a smoothly functioning justice system. The usual causation problem applies: it's not clear whether the value of encouraging a more bureaucratic, less individualistic "per curiam culture" would lie in its ability to restrain and counteract the current culture, or whether any move in that direction would itself be evidence of a change in the underlying culture.

In any event, whatever the intent behind it, I find that Magliocca's post has made me less confident that signed majority opinions are necessary or truly beneficial, and more willing to believe that we might be better off, all things considered, in a legal culture that tended not to reveal or emphasize the identity of individual judges. It certainly makes me more inclined to think that his question--"why ever say who the author is?"--is actually a damn good one.  

Posted by Paul Horwitz on June 15, 2015 at 11:20 AM in Paul Horwitz | Permalink

Comments

It's worth noting that the NLRB never identifies the author of majority opinions. As someone who has practiced before the agency for many years, I have never felt I was missing something because I didn't know the author of an opinion.

Posted by: Andrew Strom | Jun 17, 2015 8:57:50 AM

I think others suggest or make this point, but naming authors in most cases probably saves time and furthers collegiality by releasing all but the authoring judge from responsibility for style and organization.

Judges considering whether to "join" an opinion can confine their discussions with the author to the substance without losing sleep every time they sit on a panel with a judge who writes badly or idiosyncratically.

Posted by: BF | Jun 16, 2015 5:01:48 PM

Is empirical evidence available on the use of a precedent by the Justice-author of a decision of the Court as compared to other Justices who joined? The results might be compared with the use of a per curiam decision as precedent. I am under the impression that a Justice-author of a decision of the Court, or of a concurring opinion, or of a dissenting opinion can be quite defensive when making a reference to such authored decision/opinion. Can this be detected with per curiam decisions?

Posted by: Shag from Brookline | Jun 16, 2015 2:40:18 PM

As a practicing attorney, one valuable reason for keeping authorship is to gauge how a judge views an issue. Knowing a judge wrote one or more key opinions which are being cited by the parties helps shape appellate argument and even settlement discussions.

Posted by: Grange95 | Jun 16, 2015 11:46:02 AM

Thanks for all the interesting comments. I suppose I should just add that doubtless I spoke too strongly in my post. Its primary motivation was roughly that, as I wrote in the post, I thought Gerard's last point treated it as obvious that a regime of signed opinions is good and/or that a regime without them is virtually unthinkable. It seemed to me worth pushing back on that, and in particular it led me to reflect on the ways in which our current norms and culture might be linked to larger aspects of American legal and political culture that are, at best, mixed bags. BDG's Burkean point is fine with me--I'm not insistent on a change--but I do consider it important not to take our system for granted and to think about some of the problems that may accompany it, one of which in my view is our over-attachment to individual judges and our tendency to focus on the exceptional ones and not the average ones. (As an additional point, I would point out, and a couple of commenters point out, that we might have *some* evidence on this point, from the practices of foreign courts.) I'm not incredibly eager and insistent on throwing out the baby with the bathwater. But I do think we shouldn't assume too readily and loyally that the baby is all that great.

Posted by: Paul Horwitz | Jun 16, 2015 10:17:03 AM

I agree with everything in the post, but a few concerns.

1. It would be difficult to study the jurisprudence of a really great judge, like Posner or Hand or Friendly. Of course one could always recognize Posner, but that points up the fact that your proposal would encourage somewhat unseemly guessing games about who wrote what.

2. It would make decisions on seeking en banc rehearing a lot harder, though perhaps handicapping en banc odds on the basis of en banc composition is one of the aspects of our judiciopolitical culture you'd like to discourage.

3. I worked for a circuit judge once who required me to say who wrote any opinion I cited, in a memo, from his/her circuit. This seemed a little dodgy to me at the time, but as we all know, many circuits have conflicting authority on many questions, and in any event a case may not be controlling for any number of reasons, in which case many judges will want to know who wrote it before deciding how persuasive they find it. I saw a D.C. Circuit opinion last month that radically deviated from that circuit's understanding of Marks; it's worth knowing, for litigants and members of that court, present and future, that Judge Kavanaugh (who's previously argued for such a radical deviation in a solo concurrence over vigorous criticism) wrote that opinion. Otherwise, one might be somewhat more bullish about his theory catching on, as a predictive matter. As is, we can better understand what's going on.

Posted by: Asher | Jun 15, 2015 7:13:56 PM

Adding to Orin's post: On the Court I clerked on, all unpublished opinions were per curiam UNLESS the opinion had been outstanding for a certain period of time. Then you had to sign your unpublished opinion and bear the shame of holding up the case for that long.

Posted by: SM | Jun 15, 2015 6:27:36 PM

In addition to clicking "like" on Orin's post, let me add that we have a system in which federal judges face almost no incentives for anything, except those that arise when judges internalize peer opinion and public expectation. My intuition, like Orin's, is that signed opinions play an important mediating role in how judges experience outside appraisals of their work. That's not necessarily an argument in their favor, but if one is Burkean, one wants evidence before chucking the status quo. And we have pretty limited evidence of what effects the alternative rule would have.

Posted by: BDG | Jun 15, 2015 4:37:55 PM

On the one hand, I've always thought it odd that appellate majority opinions name an authoring judge. Even if one judge wrote every word in the opinion, it is theoretically equally the opinion of every judge who joins it.

However, in practice, I think that Orin's observation is correct: judges are generally more likely to put more care into an opinion if it bears their name. When all opinions are "per curiam," judges are less likely to invest themselves in individual opinions because they won't reap the glory of a particularly well-written opinion or suffer the consequences of a particularly poorly-written one. (This viewpoint is based in part on my experience of working for a foreign supreme court where all opinions were "per curiam" and the clerks operated as a pool. If an authoring judge was named, I am confident that the judges would have taken a more active role in the opinion-writing process.)

Posted by: KB | Jun 15, 2015 2:51:12 PM

I suspect the norm of signed opinions serves mostly to avoid shirking and lower bargaining costs in the run-of-the-mill cases that make up the work of most judges. The practice of signed decisions deters shirking because a judge who knows that his (or her) name will be on the opinion has the incentive to do the work of drafting the opinion in a timely way. If an opinion stinks, he gets blamed; if it comes out three years after argument, he looks bad. Signed opinions also may lower bargaining costs because the other judges on the panel might be willing to sign on to an opinion that isn’t quite what they would like it to be, rather than write separately, because they know their name isn’t on the opinion. Of course, this can be good or bad, depending on the case.

Posted by: Orin Kerr | Jun 15, 2015 12:23:35 PM

As I noted there, Jefferson was concerned with the Chief Justice Marshall "opinion of the court" method in part because he thought it would hide dissension to provide an allegedly "united" opinion, which studies have shown is apparently true.

But, this isn't really necessarily wrong. And, I have pushed back myself on some who personalize -- so "Kennedy" is said to be an issue when the opinion itself has five (or more) justices joining it. This concern is in effect cited in the OP. I'm unsure really if it is necessary for majority opinions (or even multi-justice dissents) to be named ones though I'm inclined to think GM's reasons have some value. We probably can figure out who wrote many of them by their style.

Anyway, my concern here is that there is a general practice and for whatever reason 5CA didn't follow it. The argument as to first principle however is interesting too.

Posted by: Joe | Jun 15, 2015 12:11:49 PM

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