The Supreme Court docket summarily reversed the U.S. Court docket of Appeals for the Tenth Circuit in Andrew v. White. Such abstract reversals was considerably commonplace. (Certainly, as I’ve chronicled on this weblog, the U.S. Court docket of Appeals for the Sixth Circuit used to get summarily reversed with some frequency in habeas circumstances.) But as Adam Liptak notes within the New York Occasions, abstract reversals are much less widespread than they was.
Through the first fifteen years of the Roberts Court docket, there have been seven or extra abstract reversals per time period on common. Over the previous 4 phrases, nonetheless, the Court docket has averaged just one. Notes Liptak, this “decline is a thriller.”
The explanations for the sharp shift away from abstract reversals are unclear. The courtroom could also be too busy with main circumstances to appropriate errors in minor ones, or the justices might really feel swamped by the spike in emergency functions.
Liptak’s story cites a forthcoming article by Kalvis E. Golde, “The Decline of Abstract Reversals on the U.S. Supreme Court docket,” that will likely be revealed in within the Columbia Regulation Assessment. Right here is the summary:
Abstract reversals have a protracted historical past on the U.S. Supreme Court docket. Issued at this time by way of quick, unsigned opinions, these rulings reverse decrease courtroom choices on the deserves with out the standard observe of briefing and oral argument, on the idea that the choices under had been plainly fallacious. Beneath the Roberts Court docket, abstract reversals have been an everyday prevalence, usually reserved for choices granting postconviction reduction to people who find themselves incarcerated and denying certified immunity to police and jail officers. Previously 4 years, nonetheless, the variety of abstract reversals has declined precipitously, almost grinding to a halt. This Be aware discusses doable explanations for this pattern: time constraints from the shadow docket, the appointment of Justice Amy Coney Barrett, the conservative alignment of the judiciary, and critiques of the Court docket’s institutional position. It additionally explores the affect of a world with few to no Supreme Court docket abstract reversals, significantly for individuals incarcerated on demise row.
Because the summary signifies, one doable rationalization for the decline in abstract reversals is that Justice Barrett is much less supportive of their use. From Liptak’s story:
The research proposed an intriguing different rationalization: the arrival in 2020 of Justice Amy Coney Barrett. In 2021, simply as abstract reversals began their steep decline, she wrote a notable concurring opinion, albeit within the context of emergency functions.
She stated she was cautious of deciding circumstances “on a brief fuse with out advantage of full briefing and oral argument.”
Why ought to one justice’s views matter? One other uncommon function of abstract reversals, one not mentioned within the Supreme Court docket’s guidelines, might reply that query. In his 2021 speech, Justice Alito stated that “we have now a observe of not issuing a abstract reversal until at the least six of us agree.” . . .
The rule that emerges from all of that is that if there are 4 votes to grant assessment, the courtroom will hear the case even when a naked majority would like to behave summarily. As a normal matter, although, abstract reversals require six votes.
And which means Justice Barrett might maintain the decisive vote even when the opposite 5 Republican appointees are inclined to behave summarily.
