Summary procedures in the Supreme Court compared to courts of appeals

July 21

A handful of times every year, the Supreme Court summarily reverses an opinion below. That is, on the basis of the petition for certiorari and the opposing brief, the court decides to just issue a merits opinion without ever accepting merits briefing or oral argument. A couple of readers have written in to suggest that this practice is somewhat analogous to the summary-affirmance procedure that the Seventh Circuit used in its now-vacated opinion in Motorola v. AU Optronics (see my posts here, here, and here) and to suggest that it ought to raise some of my same concerns about procedural regularity.

It’s an interesting analogy, and the careless or uncritical use of summary reversals by the court is something that I worry about. At the same time, my initial reaction is that Supreme Court summary reversals are much less troubling than interlocutory appeals like that in Motorola. Why?

First, reversals are different than affirmances. The difference might seem purely formal, but when a court summarily reverses it means that the party actually petitioning the court has the chance to decide how much to put the merits of the case in issue. The kind of petition you write when urging summary reversal usually looks different from one that urges a grant. And the party that wishes to stave off summary reversal then knows whether summary reversal has been put in issue. By contrast, a summary affirmance has more of a chance to surprise the parties because the initial filing isn’t going to ask for it or mention the possibility at all.

Second, and relatedly, summary reversals are at this point a routine part of Supreme Court practice and so lawyers can know to expect it. The court summarily reverses often enough that if you check the standard Supreme Court practice guides, they’ll warn you that your brief opposing certiorari should, in some circumstances, make sure to include any relevant reasons that the case should not be summarily reversed. By contrast, that did not appear to be true of court-of-appeals practice under 1292(b), although I could be wrong about that, and of course the relevant equilibrium could have changed if the Seventh Circuit kept up the practice consistently enough.

Third, the relevant legal standards are different and are again affected by the reversal/affirmance distinction. A criterion for accepting an interlocutory appeal in the court of appeals is that the legal question be one that is fairly debatable; so there is a slight contradiction in concluding that a question is fairly debatable enough to justify taking jurisdiction, but not so debatable that it’s worth actually letting the parties debate it. On the other hand, the Supreme Court takes cases not only where there is a division of opinion, but also where the lower-court’s decision is simply wrong and the issue is important enough that it justifies the court’s supervision. It’s easier to justify the need to intervene summarily because the lower court did something wrong than the need to intervene summarily when the lower court did something right.

Finally, summary reversals at the Supreme Court don’t have the same kind of panel effect. Courts of appeals decide most of their cases in groups of three, and the use of summary procedures allows one group of three judges to decide a case that would otherwise have been randomly assigned to another group of three. Now courts are usually very collegial about this, but it can still raise the appearance of reality of manipulation of the panel when one panel decides to take on and immediately decide a case it normally would not. I imagine I would be less sanguine about Supreme Court summary reversals if the summary reversal decisions were decided only by a four-justice subset of the court that didn’t feel like letting the case proceed.

Again, I don’t mean to say that there is nothing for a proceduralist to worry about in the court’s summary procedures. (See this post from May for an example of something I puzzle over.) But those are some of the initial reasons that the court’s summary procedures strike me as distinct from the summary procedure I was blogging about last week.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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