The experiment started in the late 1950s when the Fourth Circuit began an unannounced categorization of cases, denying publication to some, while treating unpublished cases as nonprecedential. The Fourth Circuit used nonprecedential cases to resist U.S. Supreme Court initiatives under Brown v. Board of Education and to deflect numerous prisoner-rights cases under the Civil Rights Act. (Pether, Outing the Judicial Epistemology of Hart V. Massanari (2005) 62 Wash. & Lee L. Rev. 1553.) Nonprecedential opinions allowed the Fourth Circuit to treat these cases differently not only in the obviously procedural respect but in respect to the substantive rights found. The cases' nonprecedential character barred other plaintiffs from citing them to enforce their rights, hence eliminating the main motive for correctly finding law contradicting a judge's political or personal inclinations. Studies proved that courts applied different standards in nonprecedential opinions. A 1999 study of the Americans with Disabilities Act showed the plaintiff win rate in employment discrimination cases at the district court level was four times higher in published than unpublished opinions. (Ruth Colker, The Americans with Disabilities Act: A Windfall for Defendants (1999) 34 Harvard C.R.-C.L.L. Rev. 99.) If courts correctly decide unpopular cases only if the judges intend publication, a still greater degree of bias will obtain in cases where the court issues no opinion, not even an unpublished, nonprecedential one. An uncitable case may free judges from legal constraint, but the written opinion remains obtainable and a mild embarrassment to the inconsistent judge.
The California courts and the Ninth Circuit were in the forefront of the judiciary's rearguard opposition to Rules of Appellate Procedure rule 32.1, which compels the federal circuits to allow citation—but not precedential force—to unpublished cases. California state courts still enforce a rule subjecting attorneys to sanction for tacitly confronting a court with its inconsistent unpublished decrees. The procedures associated with nonprecedential cases would disturb lawyers if more of them knew. When matters stood much better for court dockets decades ago, already a California Supreme Court screening process culminated in an intense "Wednesday conference" meeting in the Chief Justice's chambers to consider petitions for extraordinary writs and other petitions, including State Bar disciplinary matters. These matters were divided into an A-list and B-list, the latter where denial of the petition seemed indicated. At the beginning of the hour, the conference would summarily reject the bulk of B-list items, 2/3 of the 100 or so considered each week. (Grodin, The Depublication Practice of the California Supreme Court (1984) 72 Cal. L. Rev. 514.)
The judiciary's attitude toward reviews of complaints by those convicted of crimes—and one must suspect, quasi-crimes—was expressed forthrightly by Justice Black, who supported a lower court's denial of a transcript to a prisoner:
I do not think he needs a transcript to know whether he was convicted erroneously or whether some new circumstances have arisen that now show a fatal constitutional error… This case is but another of the multitudinous instances in which courts are asked interminably to hash and rehash points that have already been determined after full deliberation and review. (Wade v. Wilson (1970) 396 U.S. 282 [Black, J., dissenting].)Procedures perfected against rights-demanding prisoners are today deployed against State Bar respondents.
For a more general treatment of nonprecedential opinions, see the eponymous entry in my new blog, Juridical Coherence.
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