Summary Reversals in the Supreme Court

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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19 Responses

  1. Brett Bellmore says:

    Couldn’t this be a response to Reinhartism? “They can’t catch them all.”

    They probably figure they can at least catch more of them, if they don’t take the time to explain why they’re slapping down the lower court.

  2. Steven Lubet says:

    Why do you say that “the Court’s proper role [is] resolving circuit splits or addressing highly significant issues of federal law”? I realize that has been the court’s longstanding practice, but there is certainly nothing less “proper” about error correction. And for much of its history, SCOTUS did see its job as including error correction.

    SCOTUS used to decide twice as many cases. Do you think there were twice as many circuit splits in those days (when there were many fewer cases decided by the appellate courts)? My guess is that the recent emphasis on circuit splits goes hand in hand with the reduced caseload — and the latter is unfortunate.

  3. Gerard Magliocca says:

    Supreme Court Rule 10:

    “A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.”

  4. Steven Lubet says:

    Well, there is a lot of territory between the court’s currently preferred practice (as articulated by the rule) and the court’s “proper role” (which suggests something integral or inherent in the Constitution).

    Others may not agree, but I think there is some value in occasional error correction by the nation’s court of last resort (even when I disagree with the result).

  5. Joe says:

    Yes, the path to stop the 9th Cir. from doing things like that is to do slap down the 6th Cir. w/o much analysis so the 9th Cir. can just say ‘well, what we are doing is different.’

  6. Joe says:

    As to Steve/#2, it would be interesting to determine the number of circuit splits.

    There were a lot more cases for various reasons, but a major one was Congress previously required more cases to be reviewed, including when there was no circuit split. Let’s say when a state court did such and such. Taking that case very well might not do much to settle circuit splits.

    I think some error correction to nudge the lower courts the right way is fine but given how small the docket is, they still can give fuller review and not use per curiams.

  7. Brett Bellmore says:

    Joe, that would by why I said “Reinhartism”, not “Reinhart”.

  8. Howard Wasserman says:

    Much of the Court’s formerly large caseload was a product of the Court’s appellate (i.e., mandatory) jurisdiction over: 1) Prior to 1988, cases from state courts in which a federal issue was raised and rejected and 2) Prior to 1976, cases from 3-Judge district courts that were required for all constitutional challenges to state or federal laws. I have never studied the statistics on this, although I’m sure someone has.

    A lot of those cases did involve simple error correction; that, combined with the larger caseload, generated a larger number of per curiam opinions and summary affirmances or reversals. So I think this is a very old practice for SCOTUS, not a reaction to anything going on in the lower courts. Although a somewhat different question is whether it is appropriate given the small caseload. If the practice made sense to dispose of 175+ cases brought about by mandatory jurisdiction, does it still make sense on the much-smaller caseload?

    Is the explanation something internal about garnering consensus?

  9. p.d. says:

    What % of these per curiams are habeas reversals? I know the best way to generate web traffic as a legal reporter is to tie every article to Citizens United, but it’s disappointing that Liptak only looks at the trend while ignoring each data point.

  10. Orin Kerr says:

    Gerard, I disagree. The problem is that there are a group of circuit judges who have decided to ignore Congress and Supreme Court caselaw in an important and ongoing group of cases. These are not isolated cases of error correction, but rather the intentional product of a group of judges to repeatedly and wilfully ignore the law and do what they want instead. That creates a sort of functional circuit split: If you draw the right panel, the law in the Sixth Circuit is different from the law elsewhere. It sounds like a pretty obvious source of grants to me.

  11. Gerard Magliocca says:

    That’s a pretty serious accusation Orin.

  12. Shag from Brookline says:

    Is Orin alleging a conspiracy or perhaps conscious parallelism of members of such group? How large is this alleged group? What, if anything, do its members have in common? Orin claims this is ” … the intentional product of a group of judges to repeatedly and wilfully ignore the law and do what they want instead.” The late Sen. Joe McCarthy did not name names. Maybe Orin will?

  13. Joe says:

    Brett, the bottom line holds: ‘well, what we are doing is different’ continues to be possible, especially when the slap down is so specific that it looks like it is only targeting a certain case. Other circuits have more reason to ignore.

  14. Joe says:

    Prof. Kerr’s theory doesn’t quite answer all the points of the article, including the use of per curiams, particularly when the “obvious” cases bring forth multiple justices dissenting.

  15. Alex R. says:

    I am not so sure the per curiam summary reversal can be explained solely as the Court wanting to scold lower courts who “repeatedly and willfully ignore the law and do what they want instead.” The Sixth Circuit’s decision in Matthews, which the Court reversed summarily, left a lot to be desired, but even if it (out of willfulness or incompetence) ignored Supreme Court precedent, it did not do what the D.C. Cir. did in Latif, which was to ridicule the Court’s decision in Boumediene. Indeed, the D.C. Cir. went so far as to favorably cite the dissents in Boumediene and denigrate the majority’s “airy suppositions” as causing “great difficulty” for courts and the President. The Court denied cert in Latif, however — no per curiam reversal there.

  16. Orin Kerr says:

    Joe writes: “Prof. Kerr’s theory doesn’t quite answer all the points of the article, including the use of per curiams, particularly when the “obvious” cases bring forth multiple justices dissenting.”

    I disagree. The Justices who have dissented from summary reversals have generally dissented from the procedure the Justices used, not the actual correctness of the lower court decision. In Cavazos, for example, the Ginsburg dissent argued that the Court should not have exercised discretion to grant cert, and if taht if the Court had to grant cert, the Court should have set the case for oral argument. The dissent did not actually argue that the lower court opinion was correct on the merits.

    Finally, if some are unpersuaded that I am correct that a particular group of judges is intentionally ignoring the law, then feel free to substitute the alternative formulation that a majority of Supreme Court Justices believe that to be the case, whether they are right or wrong.

    Alex R, an argument that takes the form “Result B was caused by the existence of Fact A” is not the same as the argument “Fact A always causes Result B.”

  17. Shag from Brookline says:


    “The dissent did not actually argue that the lower court opinion was correct on the merits.”

    points out that the dissenter in dissenting was not prejudging the merits, desiring that the matter be argued before the Court by the parties. I wonder what Orin might have said if the dissenter had argued that the lower court opinion was correct on the merits.

  18. Joe says:

    Prof. Kerr doesn’t answer all the concerns in his reply. For instance, why is there is need for anonymity in these cases? The article notes some argue that putting one’s name on an opinion provides something of a check.

    I also don’t understand why his distinction as to why let’s say three justices thought the case wasn’t so easy matters. The bottom line holds: it is not a slam dunk and if three justices disagree, a streamlined process via an anonymous opinion is arguably not appropriate.

    Also, citing one case regarding why there was a dissent does not tell me that this was the reason in each case.

  19. Alex R. says:

    Orin, of course your point of logic is right, but I think this just goes to my basic point, which perhaps you agree with. The contrast between Latif and Matthews just begs the question of how the Court is using its summary reversal authority. Was it more important for the Court to use it in the 6th Circuit case than in Latif? I suppose reasonable people can disagree, but all I said was that the summary reversals cannot be explained *solely* as a need to correct lower courts who are willfully ignoring Supreme Court precedent. I am just curious about why the Court would feel comfortable ignoring the DC Circuit thumbing its nose at Boumediene — but feel the need in a (seemingly) run-of-the-mill criminal case to smack down the Sixth Circuit.