I Agree With Justices Roberts and Alito

Usually, Chief Justice Roberts, and Associate Justice Alito, both newly appointed by President Bush to the United States Supreme Court figure in my jurisprudential nightmares. But, even a broken clock is right twice a day and there is at least one matter upon which I agree with them. Both men favor allowing lawyers to cite to unpublished decisions of the federal courts.

The Supreme Court on Wednesday adopted a historic rule change that will allow lawyers to cite so-called unpublished opinions in federal courts starting next year. The new rule takes effect unless Congress countermands it before Dec. 1. . . . [T]he sometimes-cursory dispositions that resolve upward of 80 percent of cases in federal appeals courts nationwide. . . . most of these opinions are available now on legal databases. . . . The U.S. Courts of Appeals for the 2nd, 7th, 9th, and federal circuits ban the citation of unpublished opinions outright, while six other circuits discourage it. . . . [T]he Advisory Committee on the Federal Rules of Appellate Procedure, was chaired at the time by then-3rd Circuit Judge Samuel Alito Jr., and one of its members was then-D.C. Circuit Judge John Roberts Jr. Both supported the change while on the committee, and now that both serve on the Supreme Court, Wednesday's vote may have been unsurprising. . . .The advisory committee's original recommendation was to allow the citation of all unpublished opinions, past and future, but the Judicial Conference last September added an amendment to make the rule prospective, allowing the citation only of those rulings issued on or after next Jan. 1. The high court adopted that amendment in the rule change it promulgated Wednesday.

Unpublished opinions first came into vogue in the 1960s as a time-saving device for appellate judges.

Why? I am a firm believer in transparency in government, and especially the judiciary. The existing system gives insiders who have access to more unpublished decisions insight into how a court will rule, without presenting opponents with a way to address and distinguish arguments accepted in prior cases, and without letting people for settlement purposes know how a court is likely to rule. Surprisingly often it is hard to find cases that support well established settled rules of law, because judges take the unfortunate position that no further caselaw in the area is helpful. Yet, often a case that applies a settled rule to facts very similar to your own, can clarify the law in a helpful manner.

And, it is even worse for a court to ignore relevant prior decisions that it actually made than it is to refuse to take the effort publish a decision at all. This is an arrogance in ignoring the principal of stare decisis, which really shouldn't be allowed to stand.

Hat Tip to SCOTUS Blog.