The Volokh Conspiracy
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Where Did All the Summary Reversals Go?
Why is the Supreme Court issuing fewer summary reversals? Is Justice Barrett the reason?
The Supreme Court summarily reversed the U.S. Court of Appeals for the Tenth Circuit in Andrew v. White. Such summary reversals used to be somewhat commonplace. (Indeed, as I've chronicled on this blog, the U.S. Court of Appeals for the Sixth Circuit used to get summarily reversed with some frequency in habeas cases.) Yet as Adam Liptak notes in the New York Times, summary reversals are less common than they used to be.
During the first fifteen years of the Roberts Court, there were seven or more summary reversals per term on average. Over the past four terms, however, the Court has averaged only one. Notes Liptak, this "decline is a mystery."
The reasons for the sharp shift away from summary reversals are unclear. The court may be too busy with major cases to correct errors in minor ones, or the justices may feel swamped by the spike in emergency applications.
Liptak's story cites a forthcoming article by Kalvis E. Golde, "The Decline of Summary Reversals at the U.S. Supreme Court," that will be published in in the Columbia Law Review. Here is the abstract:
Summary reversals have a long history at the U.S. Supreme Court. Issued today by means of short, unsigned opinions, these rulings reverse lower court decisions on the merits without the traditional practice of briefing and oral argument, on the theory that the decisions below were plainly wrong. Under the Roberts Court, summary reversals have been a regular occurrence, typically reserved for decisions granting postconviction relief to people who are incarcerated and denying qualified immunity to police and prison officers. In the past four years, however, the number of summary reversals has declined precipitously, nearly grinding to a halt. This Note discusses possible explanations for this trend: time constraints from the shadow docket, the appointment of Justice Amy Coney Barrett, the conservative alignment of the judiciary, and critiques of the Court's institutional role. It also explores the impact of a world with few to no Supreme Court summary reversals, particularly for people incarcerated on death row.
As the abstract indicates, one possible explanation for the decline in summary reversals is that Justice Barrett is less supportive of their use. From Liptak's story:
The study proposed an intriguing alternative explanation: the arrival in 2020 of Justice Amy Coney Barrett. In 2021, just as summary reversals started their steep decline, she wrote a notable concurring opinion, albeit in the context of emergency applications.
She said she was wary of deciding cases "on a short fuse without benefit of full briefing and oral argument."
Why should one justice's views matter? Another unusual feature of summary reversals, one not discussed in the Supreme Court's rules, may answer that question. In his 2021 speech, Justice Alito said that "we have a practice of not issuing a summary reversal unless at least six of us agree." . . .
The rule that emerges from all of this is that if there are four votes to grant review, the court will hear the case even if a bare majority would prefer to act summarily. As a general matter, though, summary reversals require six votes.
And that means Justice Barrett could hold the decisive vote even if the other five Republican appointees are inclined to act summarily.
