Reforming the Supreme Court’s summary reversal practices

Associate Professor Rich ChenBy Associate Professor Richard Chen

Sometimes a lower court decision is so obviously wrong that the Supreme Court reverses it without holding oral argument or receiving briefs on the merits. In these cases, the Court bases its decision solely on the petition for certiorari (cert) and opposition brief, both of which are supposed to be primarily about whether the case is important enough for the Supreme Court’s attention and not whether the lower court got it right. The short, per curiam (unsigned) decision resulting from this truncated process is known as a summary reversal.

Since the Court began using summary reversals several decades ago, commentators have criticized them as unfair to litigants, prone to error, and inconsistent with the Court’s criteria for granting discretionary review. On that last point, the Court is supposed to grant cert only when there are compelling reasons warranting its intervention, not merely to correct an error in the lower court’s decision. That usually means there is a conflict among the lower courts or some unsettled legal question needing clarification by the Supreme Court. Many summary reversals, by contrast, involve the misapplication of settled legal standards and are thus hard to justify under existing criteria.

The Court’s recent use of summary reversals has triggered increased scrutiny because they seem to be targeting two particular areas of law. The Court most often uses summary reversals in federal habeas cases, in which criminal defendants convicted in state court petition for relief in federal court on the ground that their constitutional rights were violated. The second most common area is qualified immunity, a defense invoked by government officials being sued for civil rights violations to avoid liability on the ground that any such rights were not clearly established. Not only has the Court singled out these two areas for special consideration, but it intervenes in a lopsided manner: almost all of its summary reversals go against the criminal defendant in habeas cases and against the civil rights plaintiff in qualified immunity cases.

In a new article forthcoming in the William & Mary Law Review, I critique the Court’s current practices as problematic from the standpoints of legitimacy and the rule of law. The central concern is that the Court has not articulated any principled criteria for its use of summary reversals, and the rule of law demands such criteria to constrain future practice. The Court typically suggests that the lower court’s decision was clearly erroneous, but that does not explain the Court’s particular focus on habeas and qualified immunity cases and why they warrant an exception to the norm against granting cert to engage in error correction. Nor has the Court justified its pattern of intervening in only one direction and leaving the converse errors, in which the criminal defendant or civil rights plaintiff loses in the lower court, to stand uncorrected.

Commentators have suggested that the Court is targeting such cases because it believes lower courts are systematically erring and even actively resisting the Court’s precedents in these areas. I agree that this likely explains the Court’s motives, but until it actually adopts express criteria, the legitimacy and rule of law concerns remain.

After developing that critique, the Article shifts to a constructive proposal for how summary reversals can play a valuable role in developing the law. Rather than using them to rebuke the lower courts, the Supreme Court should use summary reversals to flesh out the content of general legal standards. Standards are distinguished from rules in that the former require weighing all the relevant circumstances and cannot be mechanically applied. Their meaning becomes clear only after they have been applied to specific factual scenarios over a series of cases.

Ideally, after the Supreme Court articulates a new legal standard, it would develop the content of that standard by illustrating its application in a series of subsequent cases. But given limited resources, the Court does not have room on its docket to take up multiple cases on the same topic to perform this function. My proposal is that the Court use summary reversals for this purpose. The truncated process means the Court can spend less time resolving the case and writing the disposition. At the same time, because the cases would involve applying a settled legal standard rather than resolving novel questions of law, any risks of error from that truncated process are reduced. Finally, my proposal would make summary reversals more consistent with the Court’s existing certiorari criteria, because the aim would not be to correct the error of an individual case, but rather to use that case to provide more broadly useful guidance about the meaning of the standard in question.

Under my proposal, the Court could continue to focus on habeas and qualified immunity. Both turn on questions of reasonableness, the quintessential legal standard: federal courts should not grant habeas relief unless the state court’s constitutional analysis was unreasonable, while government officials should receive qualified immunity unless their conduct was unreasonable. But I argue that the Court should take a more balanced approach, reversing cases in which the criminal defendant or civil rights plaintiff lost below. Where the aim is to illustrate and develop the law rather than to rebuke purportedly obvious errors, at least some attention to both sides is needed to flesh out the full contours of these doctrines.