Friedrichs as a Per Curiam Decision


The Court released its decision today in Friedrichs v. California Teachers Assn.  The decision which has garnered considerable attention is a single sentence reading: “The judgment is affirmed by an equally divided Court.”  From this we know the Justices split 4-4 and so there was no precedential value to the ruling, and that by doing this the Court upheld that 9th Circuit’s ruling regarding teachers’ union dues.  The opinion type, which is listed right before the decision itself, is known as “per curiam” which is Latin for “by the court.”  As we are likely to see more of these decisions in the period before the next Justice is confirmed there are a few important things to know about this type of decision.

It is not necessary for the Justices to divide evenly to have a per curiam opinion.  Wex Legal Dictionary defines per curiam opinions as: “An opinion from an appellate court that does not identify any specific judge who may have written the opinion.”  Per curiam opinions occur with relative frequency and although most have precedential value (that is most of those that are not a product of an evenly divided Court), they often provide little other information.  Some per curiam opinions, but not all, have short written sections as well as a decision (e.g. Caetano v. Massachusetts).  Some provide cues about the Justices’ votes through their dissents attached to the per curiam opinions (e.g. Justice Alito’s dissent in Wearry v. Cain).  Per curiam decisions can occur in cases orally argued before the Court, yet they may occur without oral argument as is the case if the Court grants a petition for writ of certiorari and renders a decision along with the writ grant.

So far this term the Court has released 11 per curiam decisions including two decisions by an evenly divided Court and one DIG or case where the writ was dismissed as improvidently granted (in Duncan v. Owens).

This post takes a quick look at per curiam opinions through the Robert Court years using data from the U.S. Supreme Court Database.

There were four decisions by an evenly divided Court from the 2005-2014 Supreme Court Terms (two in 2007 and two in 2010).  All were products of Justices’ recusals.  There were a total of 95 per curiam decisions for the 2005-2014 Terms with 16 in 2005, 8 in 2006, 4 in 2007, 9 in 2008, 19 in 2009, 8 in 2010, 13 in 2011, 6 in 2012, 8 in 2013, and 4 in 2014 (none of the four included cases that were orally argued).  This averages out to 9.5 per curiams per Term.  This should effectively lighten each of the Justice’s opinion writing load by one case (or a fraction thereof) and as the Court’s merits docket has dramatically decreased in the past several decades, this should augment the Justices’ lighter workload on the merits.

These decisions tend to cluster in a few issue areas; particularly within the realm of criminal procedure as the figure below shows (I removed areas that captured less than three cases from the figure).


Examples of these cases include Dye v. Hofbauer 546 U.S. 1,  (2005) dealing with lower court errors in the trial of a murder convict, Marshall v. Rodgers, 133 S.Ct 1446 (2013) regarding a habeas corpus petition based on a Sixth Amendment challenge based on a state court’s denial of appointment of counsel to help file a motion for a new trial, and Bradshaw v. Richey, 564 U.S. 74 (2005) examining whether the proper procedures were applied to a convicted felon that sought postconviction relief and habeas corpus.  These cases provide a snapshot of the pattern of case types that tend towards per curiam decisions rather than complete decisions of the Court with candid votes on the merits.  Suffice it to say there is more to per curiam decisions than is encompassed in the recent decisions by an evenly divided Court.


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