“Unpublished” Supreme Court Orders

Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation.  This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari.  What in blazes is going on here, they ask?  Doesn’t the Court owe us some explanation?

I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations.  One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument).  I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary.  Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.

Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception.  Right now only a dissenter can open a window into what goes on with respect to these important choices.  I’m not sure that is always good enough.

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1 Response

  1. Jill Lens says:

    Whatever the mechanism, I think the Supreme Court needs to start explaining its decisions on stays. The Court issued a stay in Kitchen v. Herbert with zero analysis. And that was the reason that gay couples in Utah couldn’t get married for another 10 months. It is also the reason that lower courts have overwhelmingly granted stays when finding bans unconstitutional. A decision on a stay is not just a “preliminary or tentative act.” And it’s it’s not just procedural – one factor courts are supposed to consider is whether the stay applicant is likely to succeed on the merits.

    Courts are supposed to evaluate four factors (from Nken v. Holder) in deciding whether to issue a stay – why not simply explain that analysis in the opinion? The lower courts denying or granting stays in gay marriage cases usually provided some analysis. Why can’t the Court do the same?