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Courts as Managers: Summary Disposition at the Roberts Court

Posted By Alex Hemmer On January 30, 2013 @ 1:01 am In Law Review Essay, Yale Law Journal | No Comments

Summary disposition at the Supreme Court presents a puzzle. Appellate courts generally act in two capacities: a lawmaking capacity, in which they announce, clarify, and harmonize the rules of decision employed by the legal system in which they serve; and an error-correction capacity, in which they determine if prejudicial errors were committed in applying those legal rules to facts. But the Supreme Court, in the words of Chief Justice Vinson, “is not, and has never been, primarily concerned with the correction of errors in lower court decisions.” And summary opinions—though capable of making law—are poorly suited to it, because they are not the products of merits briefing and oral argument.

Summary disposition presents concrete advantages for a high court facing an ever-increasing tide of petitions from lower courts. By issuing GVR orders (for “grant, vacate, and remand”), the Court can ensure that inferior courts take account of intervening precedent without the Court spending its own time and energy on cases that pose similar issues. By issuing summary opinions, the Court can send signals about its commitments and priorities, even on settled areas of law, by illustrating particularly egregious misapplications. In other words, summary disposition allows a court acting in its managerial capacity—rather than its lawmaking or its error-correction capacity—to dispose of more cases with less effort, correct egregious legal errors when they arise, and preserve the Court’s limited resources for cases that present novel legal problems.

But it also presents disadvantages. Summary orders that dispose of lower-court judgments without explication—though rare today—result in fewer and less intelligible legal principles for litigants and lower courts to consider. Summary opinions risk significant unfairness to litigants, who have not had the opportunity to submit merits briefing on their cases. Perhaps most disturbingly, summary consideration of all kinds may lead to “erroneous or ill-advised decisions,” in Justice Marshall’s words, because the Court, in making its decision, did not benefit from merits briefing or oral argument. The costs of summary disposition are not insubstantial—especially if used to do more than apply well-established legal principles to new circumstances.

Over the last five years, commentators have written that the Roberts Court is more likely than its predecessors to consider and decide cases in a summary fashion. But empirical research that forms the backdrop for the Essay suggests the reverse: While the proportion of per curiam dispositions (measured as a percentage of overall merits dispositions) has risen slightly over the first seven Terms of the Roberts Court, only in one Term did it approach the levels it reached during the Burger Court, when it topped sixteen percent. The Roberts Court has not summarily disposed of cases on the merits more often than its predecessors did.

The Court has, however, summarily disposed of cases differently than its predecessors did. The Warren Court became known for an unusually aggressive approach to summary disposition: In sixteen Terms, the Warren Court issued over 250 decisions reversing lower courts with no more than a citation or two by way of explanation. Some reversals contained no explanation whatsoever. The Burger Court, in response to criticism of the Warren Court’s approach, all but eliminated the summary order from the Court’s toolkit and reinstated the Court’s practice of remanding cases to lower courts for consideration. The Roberts Court has continued to use the Burger Court’s tools—the GVR and the summary order—but has expanded the use of those tools to cases that the Burger Court would not have considered appropriate vehicles for summary disposition.

First, the Roberts Court has expanded the use of GVRs to cases that once would not have warranted them, because they neither rely on a recently changed legal premise nor present clear error. Rather than remand cases to lower courts in light of intervening precedential rulings, it has remanded cases to lower courts simply to consider arguments or case law that they could have relied on but did not. In Youngblood v. West Virginia, for instance, the Court remanded a criminal case to the Supreme Court of West Virginia, instructing it to address a constitutional issue that it had simply not considered in its opinion. “If this Court is to reach the merits of this case,” the per curiam opinion stated, “it would be better to have the benefit of the views of the [state court] on the Brady issue.”

Second, the Roberts Court has embraced the use of summary disposition in cases that present contested questions of fact. Aided by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), the Court has consistently overturned defendant-friendly court of appeals judgments in fact-sensitive cases by relying on the AEDPA-established presumption that the state trial court, not the federal appellate court, correctly adjudicated those facts. In the first case of the 2011 Term, Justice Ginsburg argued against plenary review of Cavazos v. Smith, in which the Ninth Circuit granted federal habeas relief to a California woman accused of assaulting her grandson. Even if review were appropriate, Justice Ginsburg argued, summary disposition was not: “The fact-intensive character of the cases calls for . . . the adversarial presentation that full briefing and argument afford.”

Finally, the Roberts Court has—in some instances—used summary disposition in cases that present contested questions of law. Although such cases are presumably ripe for Supreme Court review, at least if they present “important question[s] of federal law,” they are presumably not appropriate candidates for summary disposition. But the Roberts Court has treated them in just that way. In Presley v. Georgia, for instance, which held that the Sixth Amendment right to a public trial extended to the voir dire, seven Justices concluded in a per curiam opinion that the question was “well settled” under existing law. But Justice Thomas, joined by Justice Scalia, dissented on the merits and the method: “Today the Court summarily disposes of two important questions it left unanswered 25 years ago . . . . I respectfully dissent from the Court’s summary disposition of these important questions.”

The Essay does not argue that the Roberts Court has consciously extended summary disposition to cases that present contested questions of law. But cases like Presley illustrate one consequence of a court increasingly comfortable acting in its managerial capacity: the risk of carelessness. A Court comfortable issuing GVRs and summary opinions in cases it might otherwise have declined to review may also be more likely to issue summary opinions where they are inappropriate—because they make new law without hearing arguments. To ward off just this risk, the Court could invite the parties to file supplemental briefs on the merits when it considers using summary disposition; more potently, it could adopt a rule similar to that adopted by the federal appellate courts, and simply limit its use of summary disposition to cases in which all Justices, or at least a “supermajority” (e.g., seven of nine), agree that it is warranted.


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This Legal Workshop article is based on Alex Hemmer, Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, 122 YALE L.J. ONLINE 209 (2013), http://yalelawjournal.org/2013/1/23/hemmer.html.

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