My participation at a conference last week got me interested in the power of the California and Arizona Supreme Courts to depublish lower court opinions while letting the judgment stand. This is obviously a docket management technique, but I wonder about why it is justified.
Let’s start with the observation that courts often affirm a result without affirming the reasoning that led to that result. When they do that, though, they write an opinion turning that new reasoning into law. Federal courts can also wipe out a published district court opinion by reversing it with a summary order. (The U.S. Supreme Court cannot do this.) Affirming a result and wiping out a published opinion without a new one, though, is peculiar. The problem is that the losing litigant is not told why he or she lost and nobody can figure that out in a subsequent case. If there is other published authority on that issue, then you could say that the ones that remain are the law, but if the issue is one of first impression then no guidance is provided.
I’d be curious to hear from folks in these states about what they think about this practice.