There has been a significant increase in the use of unpublished memorandum opinions in the federal courts, raising concerns about their impact on precedent and the rule of law. It is questionable whether Article III federal courts have the authority to issue opinions that cannot be cited or serve as binding precedent.
Historically, memorandum opinions were a small percentage of the docket, but now they make up the majority of cases in almost all 12 Federal Circuit Courts of Appeal. This shift has given these courts a discretionary docket similar to the U.S. Supreme Court, allowing them to selectively choose which cases will set legal precedent.
The rise in memorandum opinions can be attributed to a lack of new judgeships despite a significant increase in caseloads. Partisan battles over judicial appointments have stalled efforts to expand the number of judges, leaving the current 179 Circuit Court of Appeals judges overwhelmed by the workload.
This trend raises concerns about judges issuing opinions that are not binding and may not adhere to established precedent. With limited oversight from the Supreme Court, there is a risk of decisions being made without proper consideration of legal principles.
