Per Curiams Revisited: Assessing the Unsigned Opinion

Article excerpt

A descriptive analysis of the use of per curiam opinions by the Supreme Court and the Courts of Appeals.

Per curiam opinions and other dispositions designated per curiam ("through the court") are an important component of the output of the U.S. Supreme Court and the U.S. courts of appeals, and the Justices have at times given them an especially prominent role in certain policy areas. The per curiam designation is used in a variety of situations, not only in simple, routine cases, and indeed per curiams are not always unanimous, with an increase over the Supreme Court's history in per curiams accompanied by dissents. The Supreme Court has varied over time in the frequency of per curiam opinions and in the situations in which the "per curiam" label is used, just as there is variation throughout each term in the frequency of appearance of per curiams. There is also variation in the courts of appeals in the use of the per curiam label and in the proportion of dispositions that, because the author is not identified, are the functional equivalent of per curiams.

We address the subject of per curiam opinions because it is important to know how courts dispose of all their cases, not only those on major issues and hot-button topics but also others that may be less important individually but which, taken together, can be as important as cases that receive much more attention. Equally important is understanding how all appellate courts, not only the Supreme Court, make decisions: per curiam dispositions are also used in important ways in the U.S. courts of appeals.

In this article, we consolidate the limited literature about per curiams and provide additional information about them. First, we add to the prior treatment of per curiam dispositions in the Supreme Court; we follow this with information on patterns on use of per curiams over time, both over the years and within the Court's term. We also add new information by examining the courts of appeals' use of per curiams and their functional equivalents. These courts dwarf the Supreme Court in terms of volume of decisions and law made; the frequent use of the per curiams there, then, demands attention similar to that paid to them in the Supreme Court. Finally, examples of research that could be undertaken are provided so that even more can be learned about per curiam opinions; material on who writes per curiam opinions is presented, because, while formally "through the court," they have individual authors who can be identified.

The use of per curiams on the Supreme Court

Today roughly one out of every ten opinions issued by the Supreme Court is unsigned or "per curiam." In the 65 years covered by the Supreme Court Database, these opinions represent almost 18 percent of all dispositions. The use of per curiam opinions, however, remains one of the most under studied areas of the work of the Supreme Court. In addition to a recent normative law review article1 which provides no recent data, the extant literature is limited to two primary studies - one by political scientists in two articles in 1992 and another two historical studies by a law professor a decade later.2 In addition, Wasby, D'Amato, and Metrailer, in the course of an examination of Supreme Court strategy in the desegregation cases, identified per curiam opinions as an important tool used by the Court.3 Thus what Wasby, Peterson, Schubert, and Schubert said in Judicature twenty years ago, that "the per curiam opinion is one of the basic tools the U.S. Supreme Court has adopted to announce its decisions," and that "remarkably little work has been done to clarify its nature and uses," remains true today.4

We first look at the distribution of the use of per curiam opinions from the Vinson Court through the Roberts Court, covering the 1946-2011 Terms. (See Tables 1 and 2). The use of per curiam opinions was most frequent (28.7%) during the Warren Court and declined thereafter, through the Burger (17. …