Why Do Courts Issue per Curiam Opinions
Specific situations in which the use of a per curiam is acceptable include ordinary DIG (rejection of certiorari as imprudently granted) and GVR (grant of certiorari, setting aside judgment and dismissal in light of a recently decided case) or, for example, where the court excludes a litigant from all future grounds forma pauperis. The attribution of such orders or expert opinions would have little value, as the wording would generally not address any particular aspect of the case. Along with the shift from unanimity to discord that characterized Roosevelt`s court, this per curiam has also undergone changes in usage since its initial use in simple procedural matters. In the 1930s, the Supreme Court had begun to use per curiams to decide substantive cases with oral pleadings and to develop more in-depth advisory opinions. Beginning in the mid-1900s, the Court expanded the role of per curiam, transforming it into a strategic tool for quickly resolving urgent cases, as a shield against controversial issues, and as a means of enacting new laws by indirection. Through per curiam, the Court has sometimes sought to convey a message of consensus while taking more complicated and substantive decisions. In addition, the per curiam became a practical tool for the Supreme Court to decide controversial cases, because „without any judge signing the opinion, there was no one who could be accused of evading difficult questions.“ Know the author of an opinion provides a useful guide for lawyers, allowing them to sort through a range of decisions and examine specific opinions in search of clues about a judge`s jurisprudential or philosophical biases on specific topics. The use of per-curiam deprives public opinion of this important tool on which judges, lawyers and the public rely to analyze and understand court decisions. Today, the Supreme Court issues a significant number of pro-curiam orders per warrant. But the prevalence of unattributed opinions in cases involving more than standard language raises questions about its impact on judicial accountability and the development of the law.
Opinions in private are drawn up by a single judge to rule on a party`s request for interim measures, such as a stay of the lower court`s judgment, leave to stay or an injunction. Per curiam is a Latin term meaning „through the court as a whole.“  Per curiam – literally translated from Latin as „by the court“ – is defined by Black`s Law Dictionary as „an opinion given by a court of appeal without identifying the individual judge who wrote the opinion“. Accordingly, the author of a pro curiam opinion is assumed to be institutional rather than individual, which is attributable to the court as a unit and not to a single judge. The U.S. Supreme Court issues a significant number of pro-curiam injunctions per warrant. In Chief Justice John Roberts` first six years in office, nearly nine percent of the court`s full opinions were individual judgments. The prevalence of unattributed opinion issuance raises questions about its impact on judicial accountability and law development. This article argues that per curiam is an abusive practice that contradicts the individualized nature of the American common law system, frustrates efforts to hold judges accountable, and hinders the development of the law. The application of percuriam in courts of last instance, including courts of last resort de facto, should be limited to a narrow category of opinions in which the use of standard language has already extinguished any sense of individuality. Opinions that contain broader language must be attributed in order to control the legality of judges and to enable the public and the legal profession to formulate an accurate understanding of the law. The practice is not without controversy.
Some scientists have criticized this practice. On the other hand, it is fairly accepted that the North Carolina Supreme Court will almost always file a pro-curiam advisory opinion in certain types of cases. Does that also apply to the Court of Appeal? If a decision is not published and relatively uncontroversial, should a judge`s name be appended to the opinion? Is there an advantage if an opinion is considered written by a certain lawyer – or not? Is a panel trying to point something out about a particular case by issuing a decision per curiam? Or is the practice simply an alleged part of the judicial decision-making process? And while the last five were all unpublished criminal cases, the Court of Appeal`s previous ad curiam opinions included both civil cases and published decisions. Although the last five were all from the same panel, previous decisions were per curiam involving other judges. Our review of per-curiam notices also included circuit-specific data and revealed significant differences in the frequency with which different district courts write per curiam notices. The Fourth Judicial District (5 per cent), the Fifth Judicial District (5 per cent) and the Eleventh Judicial District (7 per cent) produced the highest percentage of pro-Curiam opinions as a percentage of the total number of cases closed, while the Second District (0.15 per cent) had only a handful. The sixth circle, which uses opinions per curiam in only 3% of its decisions, is right in the middle. A per curiam decision is a judicial opinion issued on behalf of the court and not on behalf of specific judges. Most court decisions on the merits take the form of one or more opinions drafted and signed by a single judge. Often, other judges agree with these views. Even if these signed opinions are unanimous, they are not per curiam, because the names of the judges/judges still appear.
Anonymity in judicial decisions – not only before the Supreme Court, but also before other courts of last resort (including de facto courts of last instance such as US courts of appeal) – should be reserved only for a limited set of opinions and decisions in which formal, ready-made language leaves no legitimate room for individual expression. Beyond these cases, judges must not hide behind a cloak of invisibility. Individually assigned opinions and publicly recorded votes are the primary tools for holding appellate judges and judges accountable, as these opinions are the only chronicle of their work. The signed opinion provides the public with insight into the inner workings of the courts, promoting judicial accountability through an environment of individual accountability. As District Judge Ruth Bader Ginsburg noted, „public accountability through the disclosure of voices and opinion writers endangers the conscience and reputation of the judge.“ Thomas Jefferson wrote in the same vein: „The practice [of writing opinions per curiam] is certainly convenient for the lazy, the humble, and the incompetent.“ Sometimes judges openly advocate the adoption of a preferred word or phrase as a legal norm. In other cases, judges are more discreet about the use of language they intend or hope to influence the law in the desired way. Judge Brennan, in particular, was known for inserting seemingly trivial language into the text or footnote of an opinion, to rely on that language to defend his position in a later case. He planted these seeds (or ticking time bombs) strategically, knew how far his colleagues were willing to go, and „invented legal arguments that they could, albeit hesitantly, subscribe to.“ While these views may not have entirely agreed with Justice Brennan`s personal position, he was willing to compromise – to frame the opinion in such a way that he could later advance his entire vision, and to wait patiently for the appropriate case in which he could do so. Judge Brennan`s practice did not go unnoticed: his biographers wrote that „Brennan`s colleagues learned to pay attention to the seemingly innocuous statement or footnote – seeds that would be exploited to their logical extremes in a later case.“ Many decisions of the Appeals Division of the New York Supreme Court, particularly in Judicial Divisions I and Two, do not name authors.