Supreme Court nominee Merrick Garland speaking during the J. O. Wilson Elementary School Fifth Grade Awards Banquet & Promotional Program, held at The Atlas Performing Arts Center, on Wednesday, June 15, 2016. (Photo by Diego M. Radzinschi/ALM)
Chief Judge Merrick Garland isn’t handling any cases while he waits for the U.S. Senate to act on his U.S. Supreme Court nomination, but he isn’t totally slacking off.
Garland on Wednesday announced the launch of a new section on the U.S. Court of Appeals for the D.C. Circuit’s website that will make unpublished judgments — decisions that don’t carry precedential weight in the circuit — available to the public for free.
It’s a move cheered by court transparency advocates. Unpublished decisions are available via the federal courts’ electronic records system, but the public has to pay for those documents. The D.C. Circuit already posts its published opinions online for free.
“It’s an important, positive development,”said F. Paul Bland Jr., executive director of public interest law firm Public Justice. “A lot of unpublished opinions have information that is important and relevant to people with business in front of the court.”
In addition to releasing unpublished judgments, the D.C. Circuit will now also make an archive of unpublished decisions since 2000 available on its website.
“The court is adopting this new policy as a continuation of the court’s facilitation of open government and transparency in its proceedings,” Tracy Scarrow, special assistant to Garland, said in a statement.
More than half of the cases decided on the merits in the D.C. Circuit last year concluded with an unpublished opinion or order, according to statistics from the Administrative Office of the U.S. Courts. The percentages are even higher in other circuits. On average, 87 percent of all federal appeals opinions or orders last year were nonprecedential.
The D.C. Circuit was behind the curve on public access to unpublished decisions. Most federal appeals courts already post unpublished opinions online for free.
“To be sure, most unpublished opinions have little precedential value. But some do,” Georgetown University Law Center professor David Vladeck said in an email. “The work of any court ought to be transparent and visible to the public.”
Just because decisions aren’t precedential doesn’t mean they can’t be significant. Last year, Justice Clarence Thomas, joined by the late Justice Antonin Scalia, criticized the Fourth Circuit for issuing a 39-page unpublished opinion in a federal prisoner case after it was fully briefed and argued. Thomas called the move “disturbing.”
“It is hard to imagine a reason that the Court of Appeals would not have published this opinion except to avoid creating binding law for the circuit,” Thomas wrote at the time.