When Are Per Curiam Opinions Appropriate?Posted: December 8, 2013
Occasionally appellate courts issue what are known as “per curiam” opinions: opinions delivered in the name of the court, rather than in the name of an individual judge. Indeed, the Connecticut Supreme Court just issued such an opinion the other day.
Historically, per curiam opinions have been reserved for decisions that a court views as non-controversial. When used for that purpose, per curiam opinions are very short, usually no more than a few sentences.
Per curiam opinions can also be misused, however. Some appellate court judges use them to avoid individual accountability. Professor Ira Robbins of American University, Washington College of Law, made this point in an interesting article on the misuse of per curiam opinions:
Individually attributed opinions and publicly recorded votes are the primary instruments for holding appellate judges and Justices accountable, because those opinions are the sole chronicle of their work. The signed opinion provides the public with a window into the inner workings of the courts that fosters judicial accountability through an environment of individual responsibility. As then-Circuit Judge Ruth Bader Ginsburg once remarked, “Public accountability through the disclosure of votes and opinion authors puts the judge’s conscience and reputation on the line.” Thomas Jefferson wrote to the same effect: “The practice [of writing per curiam opinions] is certainly convenient for the lazy, the modest, & the incompetent.”
When courts use an anonymous veil, they lose not only the environment of transparency and individual responsibility, but often well-reasoned explanations as well. Again then-Judge Ginsburg: “Judges generally do not labor over unpublished judgments and memoranda, or even published per curiam opinions, with the same intensity they devote to signed opinions.” Seventh Circuit Judge Richard Posner agrees that the signed opinion elicits the greatest effort from judges and “mak[es] the threat of searing professional criticism an effective check on irresponsible judicial actions.”
His conclusion (one with which I strongly concur):
Anonymity in judicial decisions – not only in the Supreme Court, but also in other courts of last resort (including de facto courts of last resort, like the U.S. courts of appeals) – should be reserved only for a narrow set of opinions and dispositions in which formulaic, boilerplate language leaves no legitimate room for individual expression. Beyond those cases, judges and Justices should not hide behind a cloak of invisibility.
Update: A reader inquired if I intended to suggest that the per curiam opinion the Connecticut Supreme Court just released was an example of the misuse of per curiam status. My answer: No.