Hiding Behind the Cloak of Invisibility: The Supreme Court and Per Curiam Opinions

Abstract

Per curiam — literally translated from Latin to “by the court”— is defined by Black’s Law Dictionary as “[a]n opinion handed down by an appellate court without identifying the individual judge who wrote the opinion.” Accordingly, the author of a per curiam opinion is meant to be institutional rather than individual, attributable to the court as an entity rather than to a single judge. The United States Supreme Court issues a significant number of per curiam dispositions each Term. In the first six years of Chief Justice John Roberts’s tenure, almost nine percent of the Court’s full opinions were per curiams. The prevalence of issuing unattributed opinions raises questions of its impact on judicial accountability and the development of the law.

This article argues that the per curiam is a misused practice that is at odds with the individualized nature of the American common law system, frustrating efforts to hold individual judges accountable and inhibiting the development of the law. Thus, the use of the per curiam in courts of last resort, including de facto courts of last resort, should be limited to a narrow class of opinions in which the use of formulaic, boilerplate language has already extinguished any sense of individuality. Opinions containing language that is more expansive must be attributed in order to serve as a check on judges’ fidelity to the law and to enable the public and the legal profession to formulate an accurate understanding of the law.

Keywords: per curiam opinions, Supreme Court, judicial accountability, judicial lawmaking, development of the law, fidelity to the law, courts of last resort, appellate courts

JEL Classification: D70, D74, D79, D80, D81, D84, K10, K19, K39, K40, K41, K49, K79, K81