Judicial Ideology and the Decision to Publish Voting and Publication Patterns in Ninth Circuit Asylum Cases

The federal courts of appeals designate only a shrinking minority of their decisions for publication.1 As a practical matter, however, the distinction between a published opinion and an unpublished opinion has little to do with whether a case appears in print. The true significance of the distinction lies instead in the fact that "unpublished" opinions are entitled to little or no respect as precedent. Indeed, to date, a majority of circuits have discouraged or forbidden litigants from even citing unpublished opinions.2 Although the Judicial Conference has recently moved to abolish such "no-citation rules,"3 it is deliberately leaving intact the practice of limited publication: each circuit will remain free both to decide which of its decisions to publish, and to deny its unpublished decisions any precedential value.

Though routine, nonpublication has proven controversial. Part of the controversy has concerned the constitutionality of rendering decisions that lack precedential effect, a question given prominence by a pair of sparring opinions from...

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