Today’s NY Times brought us both Adam Liptak’s Sidebar column in which Supreme Court Justices have been criticizing lower federal appellate courts for issuing “unpublished” opinions which lack the force of precedent in the jurisdiction, and Will Baude’s oped on the Supreme Court’s “shadow docket” in which it decides cases without issuing opinions (Will graciously discusses my “Purcell Principle” paper in his piece, commenting that “Richard L. Hasen, an authority on election law, has argued that there is a common legal thread in these decisions, but the court could have explained its own reasoning rather than leaving it to him to surmise what it did.”).

There is a common thread in both of these practices: fear that issuing a precedential decision (rather than a bare order, or non-precedential decision) will cause more harm than it benefits all of us to learn the courts’ reasoning. Here’s Judge Kozinski of the 9th Circuit explaining the practice of issuing unpublished decisions:

“We simply do not have the time to shape and edit unpublished dispositions to make them safe as precedent,” Judge Alex Kozinski of the Ninth Circuit explained in 2004. “In other words, we can make sure that a disposition reaches the correct result and adequately explains to the parties why they won or lost, but we don’t have the time to consider how the language of the disposition might be construed (or misconstrued) when applied to future cases.”

I think given the workload of the lower courts this is a defensible position to take. But the Court’s docket is much smaller. And in the Purcell principle paper I urge the Court to issue opinions in its emergency election law cases (and other emergency cases) later, when the Court has more time to work through its decisions.  It could even order supplemental briefing. The stakes at the Supreme Court are higher, and the guidance more sorely needed on a national basis.