WASHINGTON, DC – An Oklahoma woman was sent to death row by the Supreme Court on lurid sexual evidence, which utilized a recently redacted judicial tool called the summary reversal, reported the New York Times.
The NYT noted summary reversals mysteriously declined over time, despite being a once common entity.
Summary reversals are “neither full-blown rulings issued after oral arguments nor terse orders on emergency applications on what critics call the shadow docket. They are a third thing: unsigned decisions on the merits based only on what is ordinarily the first round of briefs in the case, the ones arguing over whether the justices should grant review at all,” reports the NYT.
The NYT adds summary reversals are utilized when a lower court decision is “squarely contrary to one of our precedents,” states Justice Samuel A. Alito Jr.
The Columbia Law Review reveals that there was an average of more than seven summary reversals in the first 15 terms after Chief Justice John G. Roberts, Jr., joined the court in 2005, said the NYT, adding a Columbia law student and a SCOTUSblog columnist found in their study there was an average of around one summary reversal in the past four terms.
It is suspected this sharp decline in summary reversals may be connected to the court being too busy with major cases to correct the errors in minor ones, or the overwhelming nature of emergency applications on the justices, wrote the NYT.
An alternate explanation emerged once the arrival of Justice Amy Coney Barrett in 2020 revealed summary reversals began lacking as she wrote a concurring opinion in the context of emergency applications, reports the NYT.
Barrett explains she became wary of deciding cases “on a short fuse without benefit of full briefing and oral argument,” the New York Times added.
Summary reversals uniquely are only issued until at least six justices agree, which contrasts with the court’s usual customs where five votes accomplish most things in court while four can add a case to its merits docket, explains the NYT, adding Justice Stephen G. Breyer confirmed the practice was a custom and “there is no reason” to keep the requirement of six votes confidential.
The NYT writes not all summary reversals actually require six votes since, “if there are four votes to grant review, the court will hear the case even if a bare majority would prefer to act summarily.” However, most summary reversals do require six votes.
The court was found not to disclose the vote counts in summary reversals unless there are four public dissents, as those coalitions would be obvious, said the NYT.
In this current Oklahoma case, the majority opinion was unsigned, with Justice Clarence Thomas and Justice Neil M. Gorsuch issuing an 18-page dissent, “complaining that the majority had misused the procedure,” reports the NYT, noting Justice Alito filed a concurring opinion that suggested that his sixth vote was reluctant.
The late Justice Ruth Bader Ginsburg stated in 1990, “Public accountability through the disclosure of votes and opinion authors puts the judge’s conscience and reputation on the line” as it should not require this much “inference and speculation to make sense of the Supreme Court’s rulings,” the Times writes.
