The Supreme Court recently favored a woman on death row in Oklahoma using a dwindling practice called summary reversal, which simplifies decision-making without full arguments. This method, once common, has sharply decreased in use, averaging over seven cases per term in the early 2000s but dropping to about one in recent years. The reasons for this decline are unclear, with possible influences from Justice Amy Coney Barrett’s cautious stance. Summary reversals typically require six justices’ agreement, allowing Barrett potentially to veto swift actions. Critics argue that the lack of transparency in vote counts undermines public accountability in the court’s decisions.
Recently, the Supreme Court favored a woman on death row in Oklahoma, a decision heavily based on inflammatory sexual evidence, utilizing a judicial approach that was once routine but has significantly waned in recent times.
This approach is known as summary reversal, and its decreasing frequency remains puzzling.
Summary reversals differ from comprehensive rulings that follow oral arguments or brief orders relating to emergency applications—often criticized as the shadow docket. Instead, they represent unsigned decisions that address the merits based solely on initial briefs concerning whether the justices should even consider reviewing the case.
Justice Samuel A. Alito Jr. clarified this point in a 2021 speech at Notre Dame, stating, “We use them when a lower court decision is squarely contrary to one of our precedents.”
According to a new study set to be published in The Columbia Law Review, during the first 15 terms post-Chief Justice John G. Roberts Jr.’s appointment in 2005, the court averaged over seven summary reversals each term.
This figure is significant, especially considering that the court issues fewer than 70 signed decisions in argued cases each term.
In stark contrast, recent terms have shown an average of roughly one summary reversal, as noted by Kalvis E. Golde, a Columbia law student and columnist for Scotusblog.
The sharp decline in summary reversals raises questions. The court might be preoccupied with prominent cases, overlooking errors in less significant ones, or the justices might feel overwhelmed by the surge in emergency applications.
The study also suggested a fascinating potential reason: the appointment of Justice Amy Coney Barrett in 2020. In 2021, just as the frequency of summary reversals decreased, she authored a noteworthy concurring opinion, albeit regarding emergency applications.
In her opinion, she expressed caution about adjudicating cases “on a short fuse without benefit of full briefing and oral argument.”
Why might the opinion of one justice carry such weight? An atypical aspect of summary reversals, not particularly addressed in the Supreme Court’s regulations, may provide insight. Justice Alito mentioned in his 2021 talk that “we have a practice of not issuing a summary reversal unless at least six of us agree.”
This deviates from the court’s standard procedures, which generally require five votes for most actions, though only four are needed to add a case to the merits docket. The significance of six votes is noteworthy.
The following month, Justice Stephen G. Breyer validated this practice in a conversation with Joan Biskupic from CNN. He provided succinct responses to her inquiries. When asked about the rationale for the six-vote requirement, Justice Breyer, who retired in 2022, simply stated that “it’s a custom.” When asked whether there was a justification for keeping this requirement confidential, he replied that “there is no reason.”
Not every summary reversal necessitates six votes. For example, in a 2012 campaign finance case, the court issued a summary reversal of a Montana Supreme Court ruling by a narrow 5-to-4 margin. Justice Breyer dissented, indicating he might have supported granting review if there had been any indication that the majority would reconsider their 2010 Citizens United decision, which expanded the influence of money in politics.
The guideline that emerges from this is that if four votes exist to grant review, the court will proceed with hearing the case even if a slight majority prefers to act summarily. Typically, however, summary reversals demand six votes.
This scenario implies that Justice Barrett could indeed cast a decisive vote, even if the other five Republican appointees lean towards acting summarily.
“For lower court decisions glaringly wrong in the eyes of the court’s conservative majority,” stated the study, “Justice Barrett may be less willing than her five Republican-appointed colleagues to provide a sixth vote to swiftly overturn them.”
The court does not disclose the vote counts related to summary reversals. (However, if there are four public dissents, the coalitions become clear.)
In the Oklahoma case, the majority opinion remained unsigned, as is customary. Justice Clarence Thomas, joined by Justice Neil M. Gorsuch, submitted an 18-page dissent arguing that the majority misapplied the procedure.
Justice Alito contributed a brief concurring opinion, hinting that he may have been a reluctant sixth vote.
It arguably should not necessitate so much deduction and speculation to comprehend the Supreme Court’s decisions.
“Public accountability through the disclosure of votes and opinion authors,” Justice Ruth Bader Ginsburg remarked in 1990, while serving as a federal appeals court judge, “puts the judge’s conscience and reputation on the line.”