Summary Reversals by the Supreme Court

Other than Citizens United, the most interesting trend of the Supreme Court’s term thus far is the increasing use of summary reversals (in other words, a decision on the merits without full briefing or argument). These are not cases where the Court is just doing a GVR (“Grant, Vacate, and Remand”) in light of a recent decision. Instead, they must be situations where the Justices think that the lower court was so wrong that only a brief per curiam opinion is necessary for reversal and that adding the case to its docket would be a waste of time.

My sense is that this is not a positive development.  Since the grant of certiorari discretion in 1925, it has become axiomatic that the Supreme Court is not in the error correction business.  But that’s what summary reversals are.  If the legal issues involved are sufficiently important to merit the Court’s attention, then they should also be significant enough to deserve full briefing and argument.  Many lawyers criticize the Court for not taking enough cases, but I don’t think the summary reversal procedure is what they had in mind.

You may also like...

4 Responses

  1. Bill Reynolds says:

    That’s one way to slay a precedent the Court believes to be wrong even when they cannot agree on what the law should be.California does it through a decertification of precedent. Both are very pernicious practices–cts deciding without opining have crossed the line into arbitrariness

  2. Douglas Berman says:

    What’s wrong with doing error correction at the SCOTUS level? Among other benefits, it helps ensure that the circuits feel they should always work a little harder to make it sure they get it right even in cases in which there is not a circuit split or other factors that make a cert grant likely.

    Indeed, in many cases, a full cert grant seems like a waste if the Justices are 9-0 confident that the lower court got it wrong (as in the Bobby v. Bies case last Term).

    I agree that the summary reversals are often examples of error correction, but why isn’t that a proper function for SCOTUS sometimes?

  3. Judge Reinhardt once said, of lower court rulings that contradict the Supreme court, that “They can’t catch them all.” Meaning, if the lower courts just ignore the Supreme court, they’ll prevail in most cases just because the Supreme court lacks the manpower to address all those cases.

    Perhaps this is the Supreme court’s response?