Federal Judiciary

An increase in the Court?s summary docket

By Akin Gump Supreme Court Practice Group

Court watchers have noticed that the Supreme Court has issued an unusually large number of summary reversals this term.  (A summary reversal is a case in which the Supreme Court grants a petition for certiorari and reverses the lower court judgment without further briefing or argument, usually through an unsigned opinion).  So far, the Court has issued nine of them, which by my count is the same number the Court issued for the entirety of last Term, and more than for the two Terms prior to that (there were six in the 2007 Term, and eight in the 2006 Term).

In general, the Court tends to summarily reverse in criminal cases, and that has been true this Term.  Of the nine summary dispositions, only one ? Hollingsworth v. Perry, No. 09A648, the case about televising the Proposition 8 trial in California ? was not in a criminal case.  (And that case was not really a typical summary reversal, since it was a ruling on a stay motion.)

The Court has been fairly evenhanded in its criminal summary reversals.  Five were in capital cases: three of those were in favor of the defendant, and two in favor of the state.  In three other criminal cases, the state prevailed in two and the defendant in the remaining case.  The Court has tended to reverse defendant-friendly criminal decisions from the Ninth and Sixth Circuits (twice each), and to reverse state-friendly criminal rulings from the Eleventh Circuit (twice, both times in capital cases).   The final case reversed a pro-state capital ruling from the Supreme Court of Georgia.

There is much speculation whether this trend will continue and whether it is part of a conscious effort by the Court.  Summary reversals tend to be directed at correcting an error in a particular case, rather than resolving circuit conflicts or establishing general principles of law, which is what the Supreme Court spends the vast majority of its time doing in its typical argued cases.  As a consequence, an increase in summary reversals has the effect of sending a signal to the lower courts that they  cannot count on getting by with sloppy (or ideological) decision making simply because the opinion does not implicate a circuit split, at least in criminal cases.

At the same time, on a somewhat more cynical note, an increase in summary reversals allows the Court to augment the number of cases that it decides without a concomitant increase in its workload.  In the last few decades, the Court?s caseload has been cut essentially in half.  The Court occasionally receives some criticism from members of Congress, who perceive the reduction as a sign that the Court is not working as hard as it used to or should.  An increase in summary reversals provides a partial answer to that criticism, while allowing the Court to conserve the resources expended on full briefing and argument for more difficult cases.

Another consequence ? one that the Court may find less salutary ? is that an increase in summary reversals may encourage parties to file petitions asking the Court to correct what the parties view as egregious errors, even when the case is not otherwise worthy of certiorari.  This may be particularly true of states ? especially those with state solicitors general, who may see an increase in the number of summary reversals in criminal (and especially capital) cases as an invitation to loosen their criteria for seeking certiorari.  It may be that sophisticated counsel and repeat players will eventually get a sense of what kinds of cases are most likely to be viewed as suitable candidates for summary reversal.  But it seems likely that a public perception that the Court is getting more interested in simple error correction would lead to an increase in petitions that do not fit traditional cert. criteria, which one presumes the Court would view as an unwelcome development (as it already denies about ninety-nine petitions for every one that it grants).

Full post as published by SCOTUSBLOG on February 16, 2010 (boomark / email).