An Important Judicial Tool Mysteriously Goes Missing at the Supreme Court

When the Supreme Court ruled last month in favor of a woman sent to death row in Oklahoma based on lurid sexual evidence, it used a judicial tool that was once commonplace but has all but disappeared in recent years.

That tool is the summary reversal. Its decline is a mystery.

Summary reversals are neither full-blown rulings issued after oral arguments nor terse orders on emergency applications on what critics call the shadow docket. They are a third thing: unsigned decisions on the merits based only on what is ordinarily the first round of briefs in the case, the ones arguing over whether the justices should grant review at all.

“We use them when a lower court decision is squarely contrary to one of our precedents,” Justice Samuel A. Alito Jr. explained in a 2021 speech at Notre Dame.

A new study to be published in The Columbia Law Review found that in the first 15 terms after Chief Justice John G. Roberts Jr. joined the court in 2005, it issued an average of more than seven summary reversals each term.

That is a significant number in an era in which the court issues fewer than 70 signed decisions per term in argued cases.

In the past four terms, by contrast, there was an average of about one summary reversal, Kalvis E. Golde, a law student at Columbia and a Scotusblog columnist, found in the study.

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.

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.”

That is a break from the court’s usual customs. It takes five votes to do most things at the court but only four to add a case to its merits docket. Six is a curious number.

The next month, though, Justice Stephen G. Breyer confirmed the practice to Joan Biskupic of CNN. He gave terse replies to her questions. Asked about the reason for requiring six votes, Justice Breyer, who retired in 2022, said only that “it’s a custom.” Asked whether there was a reason to keep that requirement confidential, he said that “there is no reason.”

Not all summary reversals require six votes. In a 2012 campaign finance case, for instance, the court summarily reversed a ruling of the Montana Supreme Court by a 5-to-4 vote. Justice Breyer wrote the dissent, saying that he might have voted to grant review had there been any prospect that the justices in the majority would reconsider their 2010 decision in Citizens United amplifying the role of money in politics

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.

“For lower court decisions glaringly wrong in the eyes of the court’s conservative majority,” the study said, “Justice Barrett may be less inclined than her five Republican-appointed colleagues to provide a sixth vote to quickly erase them.”

The court does not disclose the vote counts in summary reversals. (If there are four public dissents, of course, the coalitions are obvious.)

In the case from Oklahoma, the majority opinion was, as usual, unsigned. Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, issued an 18-page dissent complaining that the majority had misused the procedure.

Justice Alito filed a grudging paragraph-long concurring opinion, one that suggested his was a reluctant sixth vote.

It probably should not require so much inference and speculation to make sense of the Supreme Court’s rulings.

“Public accountability through the disclosure of votes and opinion authors,” Justice Ruth Bader Ginsburg wrote in 1990, when she was a federal appeals court judge, “puts the judge’s conscience and reputation on the line.”