Supreme Court watchers are expressing some consternation about the Court’s willingness to take significant steps in recent cases (same-sex marriage, abortion, and voting rights) without explanation. This is especially true with respect to granting or denying stays, though in the same-sex marriage cases that concern extends to the denial of certiorari. What in blazes is going on here, they ask? Doesn’t the Court owe us some explanation?
I wonder if the Justices should consider an option used in the circuit courts–an unpublished order–to provide more transparency in these situations. One can understand why the Court would not want to use a published opinion to explain a decision about a stay (which is only a preliminary or tentative act) or the denial of certiorari (as that would set a precedent without the benefit of full briefing and argument). I can, though, imagine doing so through an order that says “this may not be cited as precedent” if the Court felt an explanation was necessary. Granted, people would still try to cite these orders (as a law clerk, I often saw attorneys citing unpublished orders), but a norm could develop that would make these statements non-binding.
Most of the discretionary actions that the Court takes would not warrant an explanation (certiorari denials, petitions for rehearing, original habeas petitions), but there is the occasional exception. Right now only a dissenter can open a window into what goes on with respect to these important choices. I’m not sure that is always good enough.