Nuts and Bolts is a recurring series by Stephen Wermiel providing insights into the mechanics of how the Supreme Court works.
A Supreme Court shortcut for deciding cases without full briefing and oral argument is experiencing a rebirth after languishing from disuse for several years.
The procedure is called summary reversal.
For decades the court used summary reversals to correct errors by lower courts. But the practice seemed to go dormant between 2021 and 2024. There is no clear explanation for why the use of summary reversals plummeted. But of late, summary reversals are back.
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Let us begin by looking at some basics about this procedure. Summary reversal usually involves the individual who lost in the lower court filing a petition asking the Supreme Court to hear the case and reverse the earlier ruling. But instead of granting the petition and calling for briefs and then scheduling oral arguments leading to a full, signed decision, the court – without any advanced notice – issues an unsigned decision reversing the lower court ruling.
Although the court has said little about this procedure, there are some practical assumptions about how summary reversal works. First, by tradition, it generally takes the votes of six of the nine justices for a summary reversal. Second, the procedure is usually used when the justices agree that the lower court ruling is so clearly wrong that they can reverse it without needing any additional input from the parties. Third, a summary reversal establishes a precedent; sometimes the decision may be narrow, but it still constitutes a ruling that lower courts must follow.
The six-vote tradition itself, while not a hard-and-fast rule, provides an interesting glimpse into the court. It takes four votes of the justices to agree to hear a petition for certiorari and set it for full briefing and argument. As a simple matter of math, a majority of five justices could decide to summarily reverse a lower court ruling. But it would be awkward and contrary to court tradition if four justices wanted to hear the case but five outvoted them to summarily reverse. With six votes needed for summarily reversal, the court thus avoids that problem.
Some examples of summary reversals can perhaps help shed some light on this practice.
The most recent summary reversal was on Jan. 26 in the case of Klein v. Martin. There, the petition for certiorari was filed last July on behalf of Christopher Klein, the superintendent of detention facilities in Anne Arundel County, Maryland. Convicted inmate Charles Martin filed a response in late August urging the court to deny the case. The petition showed up on the list of cases for the court’s closed-door conferences 11 times before the summary reversal.
The court’s unsigned decision, made without oral argument, was 13 pages long plus three pages of photographs. The court ruled that the U.S. Court of Appeals for the 4th Circuit in Richmond had mistakenly awarded Martin a new trial on his conviction for the attempted murder of his girlfriend. According to the court, this was because the 4th Circuit used the wrong legal standard in assessing the claims at issue.
Another summary reversal occurred last December in Doe v. Dynamic Physical Therapy, LLC. The court reversed the ruling of a Louisiana state appeals court which had applied a state law limiting medical liability to block a man’s federal disability lawsuit. In a one-page unsigned decision, the court made clear that “a State has no power to confer immunity from federal causes of action.” In that case, Doe had sued the clinic for denying him access to their swimming pool because he had HIV and argued that the denial violated federal disability law. As is typical in summary reversals, the Supreme Court sent the case back to the lower court to apply the correct legal standard.
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So that explains what summary reversals are. But why their decline and sudden rebirth? Specifically, in the current court term, there have been four summary reversals to date, which is higher than the total for the previous three terms combined.
As with so much of what happens with the court’s procedures, there is no explanation from the justices – or even an acknowledgement of this change in frequency. But a leading law review note of the use of summary reversals by Columbia University Law School student (and former SCOTUSblog staffer) Kalvis Golde considered some theories. One interesting possibility was the arrival of Justice Amy Coney Barrett in 2020. Barrett has expressed skepticism about the court deciding cases without full briefing and oral argument, questioning decisions on a “short fuse” in a 2021 concurring opinion. (Although Barrett’s concurrence was about the interim docket, the concern she expressed could relate to the truncated procedure for summary reversals, as well.)
If this is the explanation, then the sudden increase in summary reversals might suggest that Barrett has found a new comfort level.
Other theories that have been advanced for the past decline include that the court is spending so much time on the interim docket that it has less time to focus on summary reversals, or that the conservative justices are finding fewer errors that they believe can be easily corrected.
Regardless of their return, the use of summary reversal raises an important question about the court’s role. Justices often assert that their job is not simply to correct errors in the lower courts but to provide (often sweeping) legal rules. Indeed, among the thousands of petitions they turn down each year, there are undoubtedly some in which four justices – the number needed to grant a case and schedule review and argument – thought the lower court was wrong. Those cases are still denied review, however, because they may not raise an important rule of law but rather a simple factual or legal error.
Yet with summary reversals, a principal focus seems to be error correction, contrary to the frequent assertions that the court’s role is laying down legal rules, not erasing mistakes in the lower courts.
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The current Supreme Court term has about four and a half months to go. So far the return of summary reversals looks like a pronounced development. But it will be worth watching the remainder of this term and beyond to see if the pattern continues.
