How is the practice of non-publication of appeal-court opinions of states and the U.S. not in violation of the Fifth and Fourteenth Amendment?

Question

Defendant A is deemed not liable in a suit in light of the facts of the case, fact A, B and C for damages at appeals, but the opinion of the U.S. Court of Appeals for the N^th Circuit is officially published not for publication. SCOTUS denies certification for certiorari.

Defendant B is sued after the opinion of N^th Circuit published not for publication on the exclusive facts of the case: Face A, B and C, and Defendant, in due course of the disposition of justice, is deemed liable at the U.S. District Court Subordinate to the N^th Circuit.

Defendant B, post-verdict, moves for setting aside the judgement, and attorney for Defendant B takes it on himself to disregard the rules of the court, and cites precedent of other defendants under the same circuit having been found not liable on same facts (along with citations to the Fifth and Fourteenth Amendments), attorney's motion denied, case is appealed to the N^th Circuit.

Since the lawyer paid his non-punishment, lawyer presents the argument to the N^th Circuit that the case should have been decided without regards to the person or persons of either or both parties in dispute, and justice be distributed on the facts of the case as it was in Plaintiff A. v. Defendant A , and his defendant the ruling be overturned, his defendant be declared not liable along with appealing the district courts non-punitive punishments. The N^th Circuit affirms the judgements of the district court, certification for certiorari on questions about Fifth and Fourteenth Amendment violations denied.

How was Defendant B's rights to the due process and the equal protection of law not violated under the Fifth and Fourteenth Amendments of the U.S. Constitution?

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Background

The 9th Circuit accumulated 1000 opinions it published not for publication since September 3, 2022, and published just as much for publication 1 day short since 7 years ago, December 23, 2015, and the circuit courts are not an exception to the rule, courts of appeals of the several states publish its opinions in similar fashion.

Answer 1

Based on the hypothetical scenario provided, it is possible that the practice of non-publication of appeal-court opinions by the U.S. Court of Appeals for the Nth Circuit or courts of appeals of any states could be seen as a violation of the Equal Protection and the Due Process Clauses of the Fourteenth and the Fifth Amendments to the U.S. Constitution.

The Equal Protection Clause prohibits discrimination on the basis of race, ethnicity, and other protected characteristics by both levels of government. It has been established by a number of Supreme Court decisions, including Bolling v. Sharpe, 347 U.S. 497 (1954), that the Equal Protection Clause applies to the federal government equally as much as to the states.

For example, in Bolling v. Sharpe, 347 U.S. 497 (1954), the Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment applied to the federal government through the Due Process Clause of the Fifth Amendment. In reaching this conclusion, the Court stated the following in its opinion:

In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the Federal Government. We conclude that the Due Process Clause of the Fifth Amendment, as well as the Equal Protection Clause of the Fourteenth Amendment, forbids the Federal Government to segregate public schools in the District of Columbia along racial lines.

In the context of the hypothetical scenario, the non-publication of appeal-court opinions may be seen as creating the appearance of bias or inconsistency in the legal system, which, in turn, may be seen as a violation of the Equal Protection Clause. For example, if the facts of the case involving Defendant A and Defendant B are substantially identical, and Defendant A is found not liable while Defendant B is found liable, this could be seen as discrimination against Defendant B on the basis of some impermissible factor which, in such narrow cases where facts are substantially identical, may include not more than the mere identity of Defendant B not being the same of Defendant A.

Similarly, the Due Process Clause of the Fifth Amendment guarantees that all individuals are entitled to due process of law, which includes the right to a fair and impartial hearing. In the context of the hypothetical scenario, the non-publication of appeal-court opinions may be seen as a violation of the Due Process Clause if it undermines the fairness and impartiality of the legal system.

The final arbiter of fact and law

It is important to note that although the U.S. Supreme Court is the ultimate arbiter of facts and law of a case, and generally there are no rehearings of matters already decided at its bar, that does not mean that a Supreme Court decision deeming or not deeming a matter constitutional is objectively so. It means that it is treated as such for domestic purposes of the judiciary. This means at least two things: A case of a Defendant C substantially identical to Defendant A's and B's cases may, potentially without avenue for legal recourse for Defendant B, be decided within or outside of the statute of limitations of Defendant B and be decided as Defendant A's case becoming binding law which may be viewed as moral relief. In such decision of the U.S. Supreme Court, there is an implicit acknowledgment that the decision against Defendant B would not have been constitutional and implicating the denial of the certification for certiorari and the Supreme Court on grounds of violations of the above constitutional rights of Defendant B.