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July 5, 2010

Is the increase in SCOTUS summary dispositions a positive development?

This piece from Tony Mauro via law.com, which is headlined "Summary rulings spike at the high court," reviews the affinity of the Roberts' Court for summary decisions.  Here are excerpts:

The Court seems to be putting more and more energy into a different kind of widget: namely, summary decisions in cases that have not been argued or fully briefed.  It's a trend may alter Supreme Court practice.

The Court issued 12 summary, unsigned rulings this term, more than any term in at least a decade, according to a study by Texas Solicitor General James Ho, a former clerk to Justice Clarence Thomas and a close student of the Court.

The uptick in these rulings began when Chief Justice John Roberts Jr. became chief justice in 2005, and could represent a quiet and relatively painless effort to bulk up the docket without lengthy and expensive briefing and argument.  "It's been suggested, including by some of the justices themselves, that the Court might decide more cases," said Ho. "Perhaps this is the Court's way of fulfilling that vision in a cost-effective way."

Roberts has spoken about summary dispositions positively as a method of "error correction," said Mayer Brown partner Stephen Shapiro, co-author of Supreme Court Practice, the leading guide for Court practitioners.  "Not every case demands full dress briefing and argument," he added.

Shapiro used to advise practitioners that in cert petitions and opposition briefs, they should focus, not on the merits of the case, but on whether it fits the Court's criteria for granting review. "We don't give that advice any more. Practitioners need to be aware that summary treatment is a possibility."...

In one case this term, Ho actually suggested to the Court that summary treatment could be a way to go, even as he asked for full review.  In Thaler v. Haynes, Ho said summary reversal would conserve "the Court's scarce resources." On Feb. 22 the justices ruled summarily in the state's favor, with the rare result that the high court reinstated a death sentence that the U.S. Court of Appeals for the 5th Circuit had set aside....

They are meaty decisions, not quick, one-paragraph judgments, and they tend to come in cases in which the standards and precedents involved are clear, and the petitioner claims the lower court's error is obvious....

Summary rulings occasionally include dissents, and they sometimes make news.  Sears v. Upton, issued June 29 on a 5-4 vote, sent a murder conviction and death sentence back to the Georgia Supreme Court.  On Jan. 13, Hollingsworth v. Perry halted plans to broadcast the Proposition 8 same-sex marriage trial in California.  Presley v. Georgia, issued January 19 in a case where a judge closed jury voir dire to spectators, is an important reaffirmation of the public nature of criminal trials.

As this brief review of the Court's work highlights, criminal justice cases (and especially capital cases) comprise a significant portion of the SCOTUS summary dispositions.  Given that many more criminal cases are appealed to the Supreme Court and also that more obvious lower court errors may well be more common in these kinds of cases, I am neither surprised nor troubled by this reality. 

More generally, because the Justices have well-developed and often firm views in capital cases, I might even urge the Justices to adopt a presumption of dealing with most capital appeals in summary form rather than setting these kinds of cases for full briefing and argument.  And if cert petitioners and respondents (as well as potential amici) are providing the Justices with this information they need to make an informed summary decision, I am inclined to say "the more, the merrier." 

July 5, 2010 at 05:18 PM | Permalink


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The lawyer swims the sewer of Scholasticism. He has no awareness of the land nor of the air just above the surface.

1) The trial has no validation as a method at arriving at a correct answer. For example, why have a courthouse at all, at the appellate level? The judges may submit the same question to both sides, and submit the answers for rebuttal. If someone could only lift him from this sewer, many wondrous mysteries would be solved for the lawyer.

2) The appellate judges being reversed for "obvious error" are legal experts. If the text of the Supreme Court decisions cannot be correctly interpreted, perhaps there is something wrong with simple competence of the Supreme Court writing. An amendment should pass that any legal utterance rating above the sixth grade fails to give notice, and is void. Ambiguous, unclear lawyer language requires that lawyers be hired by the public. It then generates controversy and billable hours for hearings. Lawyer language, ambiguous language that cannot be properly applied by experts on appellate courts, well, it is a form of theft. Lawyer criminality should not be rewarded with additional fees. If the decision results in error, it is their fault, for being unclear. Their decision should be rewritten or voided.

3) Maybe Supreme Court advocacy expert, John Roberts, knows something. Perhaps, he understands that arguing before the court is an exercise in debating skill, slickness, and just plain worthless nonsense. Successful advocacy has no correlation with the merit of the side.

Posted by: Supremacy Claus | Jul 5, 2010 10:44:16 PM

When you are on the losing side of a SCOTUS summary disposition you are not pleased. That is because you did not get a chance to fully brief the issue and, of course, no amici get to chime in. In addition, the Court does not have the full record before it so the Court does not have a mastery of the facts and instead, relies on the the winning party's adversarial version of the facts.

I understand losing, it just feels better if I get an opportunity to fully brief the issue and say my piece.

Posted by: k | Jul 6, 2010 4:18:04 PM

K: Do you mean you hold back the good stuff for appellate hearing advocacy? Why not just put in the best stuff at the outset? This is not a play, with suspense and plot development.

Posted by: Supremacy Claus | Jul 7, 2010 5:12:22 AM

I never hold back. The problem is you get one bite at the apple. There is no opportunity to present rebuttal or to correct mistatements.

Posted by: k | Jul 7, 2010 8:22:00 AM

Why not have all communications go to all parties, including questions by the Justices?

The replies may be rebutted, and may be as numerous as Comments to a blog, until the Comment period is closed.

The lawyer is doing authoritative writing. However, he can borrow from the journalist format of putting the most important compelling argument at the outset. Even if the Justices stop reading or listening, they have received the most compelling and judge coercive arguments, at the top of the brief. If rejected, you feel reassured they received your best arguments. You already have a template, in the descending order of authority: necessity, constitution, ratified treaties, federal statutes, federal appellate decisions, federal regulation, state statutes, state precedent, common sense, policy.

From the broadcasts of Supreme Court questioning, lawyers do not get to say their pieces. They are interrupted, and bullied by the Justices at a rapid fire pace. That makes SC advocacy a test of the ability to bs on one's feet. A poor performer may still have the more meritorious case.

Posted by: Supremacy Claus | Jul 8, 2010 6:48:23 AM

I wonder if the recent uptick in summary dispositions (and, separately, some of the cert grants themselves) is related to the fact that Justice Alito does not use the "cert pool" for screening cert petns. If he and his clerks are screening the petitions separately, this may explain why some cases are now getting singled out for attention, when they would have otherwise simply been recommended for denial by the collective work of the "cert pool".

Posted by: ward | Jul 9, 2010 3:23:18 PM

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