Wednesday, August 04, 2010

Curious About Per Curiams

By Mike Dorf

First, an apology to everyone who was expecting part 3 of my series on constitutional polymorphism.  I'll get to it next week.

Okay, so now a quick observation about yesterday's scintillating Supreme Court roundup session at the Practicing Law Institute.  A number of commentators had observations about the large number of per curiam opinions the Supreme Court issued last term--that is, short unsigned (usually unanimous) opinions in cases in which the Court granted certiorari and decided the merits in one fell swoop, without merits briefing or oral arguments.  Herewith, a mixture of my own further observations and those of the panelists.

1) The expanded use of per curiams is especially odd in a period when the Court's docket is about 50% the size of what it was 20 years ago.  They could easily grant 10-20 more cases and decide them after plenary consideration.

2) The expannded use of per curiams undercuts the canonical view that the Supreme Court is not a court of error.

3) The risk of a per curiam reversal changes the calculus for lawyers for respondents.  Let's say you win a judgment in a federal appeals court or state high court and the opposing counsel files a cert petition.  In the old days, sound advice to your client would have gone like this: "Don't bother filing an opp cert.  If the Court is interested in the case, the Justices will usually call for a response before granting cert, so you'll have a chance to oppose the grant.  Filing an opp cert now actually risks calling attention to the fact that the case is important--and perversely, the better your opp cert, the more it looks like the case should be taken seriously.  Besides, if you don't file an opp cert, you save the client the money it would take to prepare one."

That may still be good advice, on balance, but now you need to figure in two additional risks:

a) The Court may summarily reverse in a per curiam;

b) If you compromise and file a half-hearted (i.e., cheap) opp cert, you run the risk that you will fail to alert the Court to some procedural or other complication in the case and then should the Court grant, it will treat your failure to call the issue to the Justices' attention in the opp cert as waiving the issue.

4) Nobody really has a good explanation for the increased use of per curiam reversals.  Perhaps it's a function of small numbers of cases and not a real trend after all.  Other theories are welcome.

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