THE DECLINE OF SUMMARY REVERSALS AT THE U.S. SUPREME COURT

Summary reversals have a long history at the U.S. Supreme Court. These short, unsigned opinions reverse lower court decisions on the merits without briefing and oral argument on the theory that the decisions below were plainly wrong. Summary reversals used to be a regular occurrence, most often reserved by the Roberts Court for decisions granting post-conviction relief to people who are incarcerated and denying qualified immunity to police and prison oﬃcers. In the past four years, however, the number of summary reversals has declined significantly. This Note discusses possible explanations for this trend: time constraints from the shadow docket, the appointment of Justice Amy Coney Barrett, the conservative alignment of the judiciary, and critiques of the Court’s institutional role. It also explores the impact of a world with fewer summary reversals, particularly for people on death row.

The full text of this Note can be found by clicking the PDF link to the left.

* J.D. Candidate 2026, Columbia Law School. Thank you to Professor Thomas Schmidt, the students of Professor Schmidt’s Special Topics in Federal Courts seminar, Professor Arthur Hellman, and the editors of the Columbia Law Review for their help crafting this Note. To Adam Liptak for reporting on it. To Amy Howe, Edith Roberts, and James Romoser for teaching me to write about the law. To Evie Spanos for teaching me to do so like a lawyer. And most of all, to Warren. Our conversations inspired this Note and will be with me always.

Introduction

Summary reversals were once a regular feature at the U.S. Supreme Court. 1 William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 N.Y.U. J.L. & Liberty 1, 1–2, 20–21 (2015) [hereinafter Baude, Shadow Docket]. The Court’s internal rules permit them, 2 Sup. Ct. R. 16.1. and the leading treatise on litigating before the Court discusses them at length. 3 Stephen M. Shapiro, Kenneth S. Geller, Timothy S. Bishop, Edward A. Hartnett & Dan Himmelfarb, Supreme Court Practice § 5.12(c) (11th ed. 2019). A “summary reversal” refers to the Court’s custom of wiping away a decision by a lower court without the usual, lengthy process of receiving briefs, hearing oral argument, and issuing a written opinion, on the theory that the decision was plainly wrong. 4 Id. Although this practice has evolved over time, summary reversals are announced today by means of generally short, unsigned opinions tucked into the end of weekly order lists handling procedural issues. 5 E.g., Sup. Ct. of the U.S., Order List: 598 U.S., at 12 (May 22, 2023), https://www.supremecourt.gov/orders/courtorders/052223zor_k5fm.pdf [https://perma.cc/NRQ9-L6WM]. This under-the-radar method of deciding cases stands in contrast to the Court’s usual fanfare, especially in late June, of announcing its decisions in argued cases from the bench, accompanied by full-length, signed opinions in which all of the participating Justices indicate their agreement or disagreement with the outcome. Orin S. Kerr, Why the Big Supreme Court Cases Cluster at the End of June, Reason: Volokh Conspiracy (June 24, 2015), https://reason.com/volokh/2015/06/24/why-the-big-supreme-court-case/ [https://perma.cc/PW8M-3C49].

Recently, however, summary reversals have become a rare occurrence. During the first fifteen annual Terms of John Roberts’s tenure as Chief Justice, the Court summarily reversed an average of seven lower court decisions per Term. 6 The exact average is 7.375. Across the 2005 to 2017 Terms, there were an average of eight summary reversals per Term. SCOTUSblog, Final Stat Pack for October Term 2018, at 13 (2019), https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_30_19.pdf [https://perma.cc/HPG9-FGJ4]. In the 2018 Term, there were five summary reversals. Id. In the 2019 Term, there were four. Andrus v. Texas, 140 S. Ct. 1875 (2020) (per curiam); Davis v. United States, 140 S. Ct. 1060 (2020) (per curiam); Roman Cath. Archdiocese of San Juan v. Feliciano, 140 S. Ct. 696 (2020) (per curiam); Thompson v. Hebdon, 140 S. Ct. 348 (2019) (per curiam). And in the 2020 Term, there were eight. Dunn v. Reeves, 141 S. Ct. 2405 (2021) (per curiam); Lombardo v. City of St. Louis, 141 S. Ct. 2239 (2021) (per curiam); Pakdel v. City & County of San Francisco, 141 S. Ct. 2226 (2021) (per curiam); Alaska v. Wright, 141 S. Ct. 1467 (2021) (per curiam); Mays v. Hines, 141 S. Ct. 1145 (2021) (per curiam); Shinn v. Kayer, 141 S. Ct. 517 (2020) (per curiam); Taylor v. Riojas, 141 S. Ct. 52 (2020) (per curiam); Mckesson v. Doe, 141 S. Ct. 48 (2020) (per curiam). Typically, the Roberts Court has reserved this treatment for decisions granting post-conviction relief to people who are incarcerated and denying qualified immunity to police and prison officials. 7 See Edward A. Hartnett, Summary Reversals in the Roberts Court, 38 Cardozo L. Rev. 591, 594–96 (2016) [hereinafter Hartnett, Summary Reversals] (classifying forty-five out of seventy-three such summary reversals in the first decade of the Roberts Court). During the last four Terms, by contrast, there has been an average of one summary reversal per Term, and in one Term there were zero. 8 The exact average is 1.25. In the 2021 Term, there were two summary reversals. City of Tahlequah v. Bond, 142 S. Ct. 9 (2021) (per curiam); Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021) (per curiam). In the 2022 Term, there was one. Calcutt v. Fed. Deposit Ins. Corp., 143 S. Ct. 1317 (2023) (per curiam). In the 2023 Term, there were zero. Arthur D. Hellman, The Federal Question Jurisdiction Under Article III: “First in the Mind of the Framers,” but Today, Perhaps, Falling Short of the Framers’ Expectations, 104 B.U. L. Rev. 2143, 2193 n.349 (2024) [hereinafter Hellman, Federal Question Jurisdiction] (“In the 2023 Term, there were sixty plenary decisions and a single summary opinion. The summary opinion in the 2023 Term . . . rejected an application for emergency relief, thus effectively affirming the action of the court below.” (citation omitted)). And in the 2024 Term, there were two: Goldey v. Fields, 145 S. Ct. 2613 (2025) (per curiam); Andrew v. White, 145 S. Ct. 75 (2025) (per curiam). The Court summarily remanded one additional case this past Term: Hamm v. Smith, 145 S. Ct. 9 (2024) (per curiam). This was likely not a summary reversal for three reasons. First, rather than disagreeing with the lower court on the merits, the Court vacated and remanded its ruling—which had held that a man on Alabama’s death row met the state’s threshold for intellectual disability and thus could not be executed—because it was “unclear” what standard the lower court had used to evaluate his multiple IQ scores. Id. at 10. Second, Justices Clarence Thomas and Neil Gorsuch dissented, noting merely that they would have granted the petition for full review without waiting for clarification—not that they would have let the lower court’s ruling stand by denying the petition. Id. (statement of Thomas & Gorsuch, JJ.). Third, after the court of appeals affirmed its prior ruling and clarified the standard, the state returned to the Court, and the Justices did not summarily reverse, but rather granted the petition. Hamm v. Smith, 145 S. Ct. 2776, 2776 (2025) (mem.).

There is plenty of discussion of summary reversals in the literature, 9 See infra section II.B. including in early discourse around the so-called “shadow docket.” 10 Professor William Baude’s 2015 article coining the term “shadow docket” focused on summary reversals. Baude, Shadow Docket, supra note 1, at 1. Lately, the shadow docket has become a hot topic. Since the first Trump Administration, scholars, practitioners, and politicians have regularly criticized the Court’s emergency orders responding to a flood of requests to wade into high-profile disputes on the shadow docket, particularly in terms of transparency and accountability. 11 For a thorough overview of these critiques, see generally Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023) [hereinafter Vladeck, Shadow Docket]. But with all the focus on the uptick in emergency orders, there has been little to no focus on the downturn in summary reversals, previously the shadow docket’s bread and butter. 12 The only mention of the decline in summary reversals this author could find in the literature comes from Professor Arthur Hellman in a recent article about trends affecting the reach of the federal courts. Hellman, Federal Question Jurisdiction, supra note 8, at 2193 & n.349.

This Note explores the recent decline of summary reversals. Part I provides background on these rulings, including how they work today and their evolution throughout the twentieth century. Part II then places the recent decline of summary reversals in context. It examines their scarcity both at the Court and in the discourse since 2021. And it highlights the litigants most affected by a future with fewer summary reversals: people who are incarcerated, especially those sentenced to death; people who are hurt or killed by police or prison officers, as well as their families; and law enforcement officials. 13 See Hartnett, Summary Reversals, supra note 7, at 594–96.

Finally, Part III discusses possible explanations for the recent decline of summary reversals. The simplest explanation might be one of limited resources. The Court’s merits docket—on which it decides cases with signed, written opinions after full briefing and oral argument—is shrinking. 14 Id. at 609; Jimmy Hoover, As Docket Shrinks, Supreme Court Lawyers Embrace Circuit Court Work, Nat’l L.J. (Aug. 8, 2023), https://www.law.com/nationallaw
journal/2023/08/08/as-docket-shrinks-supreme-court-lawyers-embrace-circuit-court-work (on file with the Columbia Law Review). Meanwhile, the Justices face a barrage of time-consuming requests for emergency relief on the shadow docket. 15 See Stephen I. Vladeck, The Solicitor General and the Shadow Docket, 133 Harv. L. Rev. 123, 125 (2019) [hereinafter Vladeck, Solicitor General] (documenting the rise in emergency applications filed by the federal government under the first Trump Administration); Litigation Tracker: Legal Challenges to Trump Administration Actions, Just Sec. (Oct. 16, 2025), https://www.justsecurity.org/107087/tracker-litigation-legal-challenges-trump-administration/ [https://perma.cc/65TN-DPU9] (documenting the subsequent swell of emergency applications filed against the federal government during the second Trump Administration). What’s more, over the same period during which summary reversals have slowed to a trickle, an increasing portion of the Court’s dwindling merits docket has been devoted to deciding cases on the heels of expedited briefing and oral argument in response to requests for emergency relief on the shadow docket. 16 Edward L. Pickup & Hannah L. Templin, Emergency-Docket Experiments, 98 Notre Dame L. Rev. Reflection 1, 10–12 (2022), https://ndlawreview.org/wp-content/
uploads/2022/11/NDLRR101_TemplinPickup.pdf [https://perma.cc/H4AD-4Q9P].

The rise of expedited argument can probably be traced to criticism of the shadow docket and specifically the outrage after the Court’s cursory order upholding Texas’s six-week abortion ban on September 1, 2021. 17 See Whole Woman’s Health v. Jackson, 141 S. Ct. 2494, 2495–96 (2021); see also Vladeck, Shadow Docket, supra note 11, at 239–40 (discussing the backlash). But skeptics of the shadow docket—and of summary reversals, specifically—have long questioned the Court’s wisdom in entertaining requests to correct errors in individual disputes, as opposed to resolving circuit splits and wading into the occasional case of national importance. 18 For more on the Court’s twin roles of declaring law and correcting errors, see infra section I.B. Perhaps summary reversal is proving rarer because the Court is responding, in some fashion, to this criticism.

Another possible explanation for the decline of summary reversals is the appointment of Justice Amy Coney Barrett. Since she joined the Court in 2020, Justice Barrett has expressed skepticism toward ruling on the merits of cases before they are briefed and argued. 19 For more on Justice Barrett’s view, see infra section III.B. And although—like most cases decided on the merits docket 20 See SCOTUSblog, Stat Pack for the Supreme Court’s 2021–22 Term 9, 13 (2022), https://www.scotusblog.com/wp-content/uploads/2022/07/SCOTUSblog-Final-STAT-PACK-OT2021.pdf [https://perma.cc/R2FA-U572] (finding that most merits cases in the 2021 Term were not ideologically divided 6-3, and most merits cases from the 2015 to 2019 Terms were similarly not ideologically divided 5-4). —most summary reversals do not divide the Court along ideological lines, 21 See Hartnett, Summary Reversals, supra note 7, at 609 (“[T]he rate of public dissent and separate opinions is considerably lower in summary reversals than in cases decided after full briefing and argument.”). Indeed, only one of the five summary reversals issued by the Court since 2021 garnered a public dissent. Andrew v. White, 145 S. Ct. 75, 83 (2025) (Thomas, J., dissenting, joined by Gorsuch, J.). However, a lack of public dissents does not mean a decision to summarily reverse is unanimous. See infra notes 37–39 and accompanying text. And summary reversals often do generate public dissents. In the 2020 Term, six of the Court’s eight summary reversals did so, half of which produced 6-3 ideological splits. Dunn v. Reeves, 141 S. Ct. 2405, 2413 (2021) (Breyer, J., dissenting) (Sotomayor, J., dissenting, joined by Kagan, J.); Lombardo v. City of St. Louis, 141 S. Ct. 2239, 2242 (2021) (Alito, J., dissenting, joined by Thomas & Gorsuch, JJ.); Shinn v. Kayer, 141 S. Ct. 517, 526 (2020) (Breyer, Sotomayor & Kagan, JJ,, dissenting). As is typical for the Roberts Court, these three ideologically divided summary reversals concerned habeas relief for people in prison and civil rights lawsuits against police officers. See supra note 7 and accompanying text. they do generally require six votes, as opposed to the usual bare majority of five. 22 See infra notes 31–33 and accompanying text. For lower court decisions that the Court’s conservative majority considers glaringly wrong, Justice Barrett may be less inclined than her five Republican-appointed colleagues to provide a sixth vote to quickly erase them. And for decisions that the three liberal Justices might wish to summarily reverse, the Court’s conservative supermajority—cemented by Justice Barrett’s confirmation—makes it difficult to secure the needed votes.

Finally, the Supreme Court is not the only court becoming more conservative. The cascade of judges appointed during President Donald Trump’s first term has reshaped all levels of the federal judiciary. 23 See John Gramlich, How Trump Compares With Other Recent Presidents in Appointing Federal Judges, Pew Rsch. Ctr. (July 15, 2020), https://www.pewresearch.org/
short-reads/2021/01/13/how-trump-compares-with-other-recent-presidents-in-appointing-federal-judges/ [https://perma.cc/3MHQ-5FPR] [hereinafter Gramlich, How Trump Compares] (last updated Jan. 13, 2021) (stating that, as of January 2021, 28% of active federal judges had been appointed by President Trump during his first term, which included “three of the nine sitting Supreme Court justices, 30% of the nation’s active appeals court judges and 27% of active district court judges”). And Republicans have gained control of a swath of state supreme courts nationwide. 24 See Aaron Mendelson, How Republicans Flipped America’s State Supreme Courts, Ctr. Pub. Integrity (July 24, 2023), https://publicintegrity.org/politics/high-courts-high-stakes/how-republicans-flipped-americas-state-supreme-courts [https://perma.cc/HCL7-H
Q27] (“In less than a decade, Republican politicians in eight states have transformed their state supreme courts—altering the process by which justices reach the bench, or the size of the court. The moves have pushed the courts to the right or solidified conservative control.”). Lower courts laden with Republican-appointed or - elected judges might issue fewer decisions that the six Republican-appointed Supreme Court Justices view as plainly wrong, warranting summary reversal. This is particularly salient for the two most common types of decisions summarily reversed by the Roberts Court: those granting post-conviction relief to people who are incarcerated and those denying qualified immunity to police and prison officials, 25 Hartnett, Summary Reversals, supra note 7, at 594–96. both ideologically liberal outcomes.

Summary reversals at the Court might return in full force someday. But even if their recent decline is temporary, it is noteworthy, both for what it says about rapidly changing procedural norms at the Court and for its impact on litigants who seek to undo lower court decisions that leave them out to dry.