CAN ROBERTS' AND ALITO'S INFLUENCE ON THE SUPREME COURT   BE MEASURED BY RULE CHANGE ALLOWING FOR THE USE OF UNPUBLISHED OPINIONS

Supreme Court Allows Rule Change, Starting in 2007

It may take a while before lawyers see the real impact from a new rule adopted by the U.S. Supreme Court last week that will eventually allow lawyers to cite to unpublished opinions in federal courts.

That’s because the rule is prospective, and citations will be permitted in all circuits for unpublished opinions written after Jan. 1, 2007. Also, it remains to be seen how much weight each of the circuits will give to these opinions.

Four circuits—the Federal, 2nd (based in New York City), 7th (Chicago) and 9th (San Francisco)—currently ban the citation of unpublished opinions. Court workers in the 7th and 9th Circuits say their courts will be in compliance with the rule by the time it takes effect. The Federal and 2nd Circuits did not return calls seeking comment.

Washington, D.C., lawyer Mark Levy says the rule change will have a positive impact on the appellate process.

"Lawyers will be free in the exercise of their professional judgment to cite unpublished decisions that they believe are in the best interest of their clients," says Levy, who served on the appellate rules committee that pushed for the rule change in the U.S. Judicial Conference. "In turn, that will facilitate better briefs by counsel and more informed decisions by the courts."

To the dismay of judges opposed to citation, especially a vocal group of opponents in the 9th Circuit, the Judicial Conference committee pushed for the change. In 2001, the ABA House of Delegates urged all federal appellate courts to allow citation of unpublished opinions and to make them available in print and via electronic sources. But not until the Judicial Conference adopted an amendment that made the rule prospective did it get the support of the high court.

Chief Justice John G. Roberts Jr. and Justice Samuel Alito both served on the appellate rules committee that pushed for the change. It is unclear the extent to which they participated in adopting the new Rule 32.1 of the Federal Rules of Appellate Procedure. No dissents or recusals were noted.

Judges and lawyers opposed to the citations have referred to unpublished opinions as "junk law." They flooded the advisory committee with some 500 letters opposing the citation rule.

Unpublished opinions, often written by staff attorneys or law clerks, were developed in the 1970s as a space- and time-saving device for the federal appellate courts to dispense with some 80 percent of their cases. Critics have said that if these cases were citable, judges would have to spend more of their time and already overburdened resources crafting them.

One of the more vocal critics, 9th Circuit Judge Alex Kozinski, declined to comment for this article. But in 2004, he sent a 22-page letter to the appellate rules committee explaining the difference between unpublished opinions, which take 5 to 10 minutes for panels to sign off on, and published opinions, which go through numerous drafts, editing and revisions before being released.

"Given the press of our cases, especially screening cases, we simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent," Kozinski wrote at the time.

But pressure to allow for citation began to mount as technology made these cases and their "unpublished" dispositions readily available via electronic databases. Proponents of the rule change argued lawyers ought to be able to tell the court what it has done in prior cases.

If Congress doesn’t veto the rule, it goes into effect in January. The next step, some say, is to shine a light on the fact that judges dispense with so many cases with the assistance of staff attorneys.

"People now know more about this process," Levy says. "That could prompt a broader debate than just the citation rule."

William M. Richman, a University of Toledo law professor who has long opposed the use of unpublished opinions, hopes more attention is drawn to what he calls "track two" cases—those that are handled almost exclusively by staff attorneys.

"We posture as a society where law is everything that matters, that the poor have as much access to the law [as the wealthy]," Richman says. But "these devices permit us to have a different reality, where people with money have access to written opinions, oral argument and a decision written by judges. Insignificant litigations have access to some recent law grads who write a memo."