High Court aficionados aside, lawyers and the public can be guilty of giving scant attention to the Supreme Court’s summary decisions, which are issued without full briefing or oral argument. These summary decisions should not, however, escape notice. An examination of the summary docket from the Court’s five most recent terms brings into focus the particularly prominent role that summary reversals had in the just-concluded 2015 Term. Moreover, delving into the substance of this term’s summary decisions reveals an array of hot-button issues that prompted vociferous dissents.
Revving Up the “Summ Rev” Docket
The Court actively engaged in summary decision making this year. In the 2015 Term, the Court issued 12 summary reversals—the most in the last five terms. As a reference point, this number exceeds the output from the Court’s summary docket in the 2012 and 2013 Terms combined.
To drive home the importance of this term’s summary docket, consider this: The Court decided approximately one out of every six decisions this term—16 percent—via its summary docket. The last time the Court came within shouting distance of that figure was four years ago, when the Court issued 14 percent of its opinions through its summary process. And since then, the summary docket has constituted only 6 percent, 8 percent, and 11 percent of the total opinions issued after oral argument. Accordingly, this term represents a material increase in the number of summary decisions, as compared to the past few terms.
At first blush, it is tempting to hypothesize that the eight-justice Court ramped up its summary decisions after Justice Scalia’s death in February. And, at a superficial level, there is evidence to support this hypothesis: The Court issued seven summary reversals from March through June, the highest number issued during that time frame in recent years.
On closer inspection, however, it is far from clear that the uptick in summary decisions should be attributed to the dynamics of an eight-justice Court. Three of the seven summary decisions released after Justice Scalia’s death—Wearry v. Cain, V.L. v. E.L., and Caetano v. Massachusetts—had been distributed for the Court’s Conference prior to his passing. This means that all nine justices had likely discussed these three cases. In fact, there is a real possibility that the Court already had voted to summarily reverse in these three cases prior to Justice Scalia’s passing.
If the three cases noted above are grouped with the other summary decisions from the January–March time frame—that is, if the Court’s summary decisions are grouped into trimesters—then the Court’s summary output from the third trimester is not out of proportion to other terms. The line graph here demonstrates, for example, that the Court issued four summary decisions in April–June in both the 2011 and 2015 Terms. Thus, although this term’s summary docket was especially robust, there is good reason to conclude that the pace of summary decisions from the nine-justice Court and the pace at which the eight-justice Court churned out summary decisions are similar.
The Lower Courts That Provoked the High Court’s Ire
The favorite parlor game of summary docket watchers is predicting which lower courts will provoke the ire of the High Court during a given term. This year’s answer: the usual suspects. That is, this term did not materially deviate from the recent pattern as to which courts are frequently on the receiving end of summary reversals.
Over the last five terms, the Court has summarily reversed the Ninth Circuit and state courts the most; the Ninth Circuit has shown up on the summary reversal list 12 times, and various state courts have been summarily reversed 14 times. Next on the list are the Sixth Circuit (six summary reversals) and the Third Circuit (four summary reversals). The Fourth, Seventh, and Eighth Circuits round out the list with one summary reversal each, while the other circuits have escaped unscathed.
Consistent with recent terms, state supreme courts and the Ninth Circuit suffered the most summary setbacks in the 2015 Term—with six reversals and three reversals, respectively. Unsurprisingly, the Sixth Circuit came next on the list, with two summary reversals. The only other circuit to be summarily reversed this term was the Fifth Circuit, with a single reversal.
One question, which is beyond the scope of this article, is why certain circuits are the subject of more summary reversals than others. In other words, do certain circuits produce higher-quality decisions than others, thus reducing the probability of summary reversals? Or, alternatively, is the summary-reversal rate correlated to the quantity or subject matter of decisions from the various circuits? In any event, this year’s evidence confirms that certain circuits are more likely to be summarily reversed than others.
The Subject Matter of the Summary Docket: Not Just Habeas
Many attorneys perceive the summary docket principally as the home for habeas issues. And that is true, to some extent. In the past five terms, 17 of the Court’s 42 summary reversals—40 percent—involved habeas issues. But the Court wrestles with a host of issues in the other 60 percent of its summary opinions.
Apart from habeas issues, the next most frequent category of summary reversals involves lower court decisions that fail to hew to Supreme Court precedent in other areas, ranging from due process to attorney fees and from election law to the Fourth Amendment. In addition, the Court decides approximately one qualified immunity case per year, as well as an arbitration case every year or two. The issues addressed in other summary decisions run the gamut.
The 2015 Term affords excellent examples of important non-habeas cases resolved through a summary reversal. Three cases illustrate the point: Mullenix v. Luna, 136 S. Ct. 305 (2015),Caetano v. Massachusetts, 136 S. Ct. 1027 (2016), and V.L. v. E.L., 136 S. Ct. 1017 (2016).
Police use of force. In the heat of summer 2016, few issues are more hotly debated than the contours of the proper use of force by police. In Mullenix, the Court took up that highly scrutinized issue via a summary decision that arose out of a police trooper’s qualified immunity argument. 136 S. Ct. at 307. The key facts: A suspect fled after police attempted to execute an arrest warrant. This resulted in a high-speed car chase in which the suspect twice called 911 threatening to shoot police officers if they did not end their pursuit. Id. at 306. After an 18-minute police chase—but prior to the use of police spikes—Trooper Mullenix fired six rifle shots at the fleeing vehicle in an attempt to disable the car. Id. at 307. The suspect was shot in the chest four times and died as a result. Id.
Although the lower courts denied the officer’s motion for summary judgment, the Supreme Court reversed the Fifth Circuit’s decision on the basis that qualified immunity must be determined “in light of the specific context of the case, not as a broad general proposition,” and the officer must “act unreasonably in these circumstances beyond debate.” Id. at 308, 309 (internal quotation marks omitted). The Court compared the facts of this case to analogous precedent and ruled in the trooper’s favor because “qualified immunity protects actions in the hazy border between excessive and acceptable force.” Id. at 312 (internal quotation marks omitted).
Second Amendment. The right to bear arms is another high-profile issue that the Court recently addressed through the summary docket. Caetano arose out of a state-court conviction for possession of a stun gun. The defendant appealed on the ground that the conviction violated the Second Amendment. 136 S. Ct. at 1027.
The Supreme Court vacated and remanded the judgment because the state court misapplied the landmark Second Amendment decision in District of Columbia v. Heller, 554 U.S. 570 (2008). The High Court’s summary reversal underscored that, contrary to the state court’s view, Heller did not foreclose Second Amendment protections for arms that were unavailable at the time of the founding or for arms that are not traditionally used in war. Caetano, 136 S. Ct. at 1027–28. Accordingly, the Court reversed the decision of the Supreme Judicial Court of Massachusetts.
Same-sex adoption. The adoptive rights of same-sex parents were at issue in V.L.That case arose out of a custody dispute over children that same-sex partners raised together during a relationship spanning 1995 to 2011. 136 S. Ct. at 1019. Through reproductive technology, E.L. gave birth to twins in 2002, and a Georgia court granted V.L. adoption rights as a second parent through E.L.’s consent and without “relinquishing her own parental rights.” Id. After the parents broke up, V.L. sought enforcement of visitation rights in her new home state, but an Alabama court ruled that “full faith and credit” need not be granted to the Georgia judgment because the original court allegedly lacked jurisdiction. Id. at 1019–20.
The Supreme Court noted that “full faith and credit” must be afforded so long as jurisdiction was proper, and it further emphasized that a “State may not disregard the judgment of a sister State because it disagrees with the reasoning underlying the judgment or deems it to be wrong on the merits.” Id. at 1020. On summary review, the Supreme Court found that the Georgia adoption statute, upon which the parental rights had been granted, was not of a jurisdictional nature. It therefore reversed the Alabama Supreme Court’s decision. Id. at 1021–22.
In the 2011–2014 Terms, the Court’s 30 summary decisions prompted only four dissents and one concurrence. But this year, the Court’s summary decisions fractured more frequently than usual: Four dissents and two concurrences were filed in summary opinions in this term alone. And this included some vociferous opinions.
Recall that in Mullenix, the Court ruled in favor of the trooper who shot the fleeing suspect because “qualified immunity protects actions in the hazy border between excessive and acceptable force.” 136 S. Ct. at 312 (internal quotation marks omitted). This opinion spawned two additional opinions. Justice Scalia penned a separate opinion to clarify that this case did not involve “deadly force in effecting an arrest” because the officer’s force, although “sufficient to kill,” was not targeted at the person, but rather the fleeing vehicle. Id. at 312–13 (Scalia, J., concurring in the judgment). But the real fireworks came in Justice Sotomayor’s solo dissent. Continuing her focus on criminal law issues—and lashing out rather harshly at a majority opinion that did not prompt any other justice to note a dissent—Justice Sotomayor opined that there was no “governmental interest in the use of deadly force” in this case. Id. at 314 (Sotomayor, J., dissenting). She further contended that the inquiry surrounding the governmental interest should not have focused on “whether the car should be stopped [but] rather . . . how the car should be stopped.” Id. at 315. And, in stark language, her dissent described the majority decision as “sanctioning a ‘shoot first, think later’ approach.” Id. at 316.
Another opinion discussed above—the stun gun case from Massachusetts—featured a separate opinion. This time, Justice Alito filed a lengthy and strongly worded opinion that concurred in the judgment. Labeling the state court’s rationale “a grave threat to the fundamental right of self-defense,” Justice Alito, whose opinion was joined by Justice Thomas, provided an in-depth review of the state court’s misapplication of Heller. Caetano, 136 S. Ct. at 1033 (Alito, J., concurring in the judgment). Justice Alito’s concurrence also focused on the story of the defendant who used the stun gun as a deterrent against her abusive boyfriend. Id. at 1028. His opinion reinforced that “the pertinent Second Amendment inquiry is whether stun guns are commonly possessed by law-abiding citizens for lawful purposes today.” Id. at 1032. And his concurrence concluded with a stern warning against Second Amendment violations, especially in cases of nondeadly weapons—weapons that already strike a balance between advocates of self-defense and those who oppose deadly force. Id. at 1033.
Moreover, in several of this term’s summary reversals, justices wrote separately to express strong disagreement about the Court’s decision to forgo full briefing and oral argument. For example, in Lynch v. Arizona, 136 S. Ct. 1818, 1820 (2016), the Court summarily reversed the Arizona Supreme Court because that court erroneously concluded that a defendant did not have a due process right to inform the jury of the possibility of a different sentence. In dissent, Justice Thomas criticized the majority for a “remarkably aggressive use of [the Court’s] power to review the States’ highest courts.” Id. at 1822 (Thomas, J., dissenting). Underlying his critique was the fact that the Court had not heard a “full briefing and argument” and was supporting its holding with a Court decision that had not produced a majority opinion. Id. Similarly, in Kernan v. Hinojosa, 136 S. Ct. 1603, 1606 (2016), the Court summarily reversed the Ninth Circuit because it did not apply a deferential standard to a habeas petition. In dissent, Justice Sotomayor maintained that the majority’s conclusion was not supported by the “strong evidence” required to summarily reverse a lower court. Id. at 1607 (Sotomayor, J., dissenting).
Keywords: litigation, appellate practice, U.S. Supreme Court, summary decisions
Ryan J. Watson is a former law clerk to Justice Alito and an attorney at Jones Day in Washington, D.C. He extends his thanks to John Vivian and Ariel Volpe for their excellent research. The views and opinions set forth herein are the personal views or opinions of the author; they do not necessarily reflect views or opinions of the law firm with which he is associated.
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