SUMMARY DISPOSITIONS AS PRECEDENT.

• Author: Chen, Richard C.

ABSTRACT

The Supreme Court's practice of summarily reversing decisions based on certiorari filings, without the benefit of merits briefing or oral argument, has recently come under increasing scrutiny. The practice is difficult to square with the Court's stated criteria for granting certiorari and its norms against reviewing fact-bound cases to engage in mere error correction. Nonetheless, there is growing acceptance that the practice is likely to continue in some form, and the conversation has shifted to asking when the use of summary dispositions should be considered proper. Commentators have had no trouble identifying the Court's tendencies: summary dispositions are most commonly used to rebuke the lower courts for attempting to resist Supreme Court doctrine, particularly in federal habeas and qualified immunity cases. But the Court's failure to actually adopt this rationale creates legitimacy and rule-of-law concerns. Furthermore, it is unclear whether such rebuke is likely to be effective in achieving the Court's apparent goal of harmonization.

This Article proposes a novel, more constructive approach to summary dispositions that takes advantage of their unique attributes: they can be put to good use filling in the contours of general legal standards. It is well understood that standards acquire meaning only by application to a series of cases, but the Court does not have space on its plenary docket to take multiple cases in the same area to perform that function. Summary dispositions, including both affirmances and reversals, provide a mechanism for doing so in an efficient manner. This proposal is consistent with the standard criteria for granting certiorari, because the purpose would not be to correct the error in an individual case, but rather to provide more broadly useful precedential guidance about the meaning of the standard at issue. After describing this new purpose, the Article shows how existing practices should be revised to fulfill it more effectively. In particular, it develops a set of principled criteria for selecting cases to resolve by summary disposition, and calls for a more balanced approach that may be more effective in harmonizing lower-court decisions than the Court's current emphasis on rebuking resistance.

TABLE OF CONTENTS INTRODUCTION I. SUMMARY DISPOSITIONS PAST AND PRESENT A. Historical Practices and Perspectives B. Recent Trends II. EXPLAINING AND CRITIQUING CURRENT PRACTICE A. The Problem of Agenda Selection B. The Limits of Rebuke III. A NEW APPROACH TO SUMMARY DISPOSITIONS A. A New Purpose B. Benefits 1. The Precedential Value of Summary Dispositions Generally 2. The Potential Value for Federal Habeas and Qualified Immunity Cases C. Costs IV. REVISING THE PRACTICE OF SUMMARY DISPOSITIONS A. Summary Affirmances B. Procedural Reforms C. Selecting Cases for Summary Disposition D. A More Balanced Approach E. Implementation and Ideology CONCLUSION INTRODUCTION

In 2014, the Supreme Court summarily vacated a lower-court decision that granted qualified immunity to a police officer sued for excessive force. The case, Tolan v. Cotton, was noteworthy because the Court had last ruled against a police officer's qualified immunity defense over a decade earlier. (1) Justice Alito, joined by Justice Scalia, concurred in the judgment. While generally agreeing with the majority's analysis on the merits, Alito expressed concern that the Court's standards for granting certiorari were being distorted--this was an "utterly routine" case in which the lower court "invoked the correct standard." (2) Granting certiorari to fix the misapplication of that standard ran counter to the Court's established norms against reviewing fact-bound cases to engage in mere error correction. (3)

Commentators were quick to point out the apparent hypocrisy of Justices Scalia and Alito in taking this position. (4) They had not spoken up, after all, about summary reversals in which the Court had engaged in mere error correction to the benefit of defendant officers. Indeed, summary reversals have been far more commonly used to reach results the conservative Justices generally support, favoring government officials in qualified immunity cases and the state in federal habeas cases. (5) Two years before Tolan, the same two Justices had complained because the Court denied certiorari in a habeas case in which the state had lost and that they themselves described as fact bound. (6) For its part, the Tolan majority acknowledged that the Court cannot "correct every perceived error coming from the lower federal courts,"' but justified its decision to do so in this case "because the opinion below reflects a clear misapprehension of summary judgment standards in light of our precedents." (8)

The debate among the Justices in Tolan and other recent cases (9) demonstrates that a more principled approach to summary dispositions is needed. Justice Alito was correct to say that the Court's own rules and norms disfavor granting review to correct errors in fact-bound cases. The liberal Justices have cited the same rules in criticizing summary reversals that favored the state in habeas cases. (10) The Tolan majority's explanation matches what has become the standard account, that summary reversals are reserved for "clearly erroneous" decisions. (11) But even if that is a necessary condition, it can hardly be a sufficient one, as many other cases could be similarly characterized but would not be deemed important enough for the Court's attention.

Summary reversals and other types of summary dispositions are not a new phenomenon. Around the mid-twentieth century, commentators took note of the Court's "increasingly frequent practice" of granting certiorari and immediately reversing the decision below in a short, per curiam opinion without receiving further briefing or allowing for oral argument. (12) Critics charged that this short-circuited process was prone to error, unfair to litigants, and ultimately inefficient because it would require attorneys to always address the merits of cases in their certiorari papers instead of focusing on the standard criteria of "certworthiness." (13)

The Court's more recent practice remains vulnerable to these criticisms, but the focus of the conversation has shifted. There is growing acceptance that summary reversals are a part of what the Court does, and criticisms now emphasize the lack of stated criteria for when the Court will use this tool. (14) When the Court departs in an ad hoc manner from its established practices, it opens itself up to criticism on rule-of-law and legitimacy grounds because it has placed no constraint on its future practices. (15) Those concerns are exacerbated because the Court's selective usage is not random, but reflects a targeting of certain types of cases. That gives rise to the "cynical interpretation" that the Court is correcting the errors it dislikes and ignoring the ones it does not mind, thereby carrying out a substantive agenda that should be more openly acknowledged and subjected to debate. (16)

Although the Court itself has not adopted any consistent justification apart from the presence of clear error, commentators generally agree that summary reversals are most commonly used to rebuke lower courts for having resisted the Court's precedents, and in particular when those courts improperly grant federal habeas or deny qualified immunity. (17) Until the Court actually adopts this rationale, however, the rule-of-law and legitimacy concerns will remain. Furthermore, it is not clear that the approach of rebuking lower courts is likely to be effective in achieving the Court's apparent goals. Some judges who have strong views about the law in these areas will not be deterred by the threat of summary reversal, while other judges may be overdeterred and go further than the Court itself would have. (18) The result will be deeper inconsistency and dysfunction rather than the harmony the Court seeks.

This Article proposes a novel, more constructive justification and a set of principled criteria for the use of summary dispositions. It is not an effort to justify existing practice, although some past instances would be considered proper under the proposed criteria. Rather, the justification is based on the nature of summary dispositions and how they could be put to effective use. Further, the logic of the proposal suggests that it should not be limited to reversals: summary affirmances have the same potential to serve a useful purpose.

My proposal is that summary dispositions be used to help fill in the contours of general legal standards. It is well understood that standards, as opposed to rules, acquire meaning through their application to a series of cases. (19) That is certainly true with respect to the reasonableness inquiries contained in the habeas and qualified immunity standards. Such standards are ubiquitous, and necessarily so, in every area of the law. (20) But the Court does not have room on its plenary docket to take multiple cases on a given issue to provide the necessary calibration. Summary dispositions provide a mechanism for doing so in a more resource-efficient manner. Thus, summary dispositions need not be seen as a problematic practice to be reined in; rather, they can be harnessed to play a constructive role in the development of the law.

A brief example will help to illustrate the proposal. In Bell Atlantic Corp. v. Twombly, the Supreme Court revised the pleading standard under Federal Rule of Civil Procedure 8(a)(2) to require plaintiffs to offer "enough facts to state a claim to relief that is plausible on its face." (21) Two years later, in Ashcroft v. Iqbal, the Court elaborated on this new plausibility standard, articulating more clearly a two-step analysis. (22) First, courts should identify and set aside legal conclusions that are not entitled to be presumed true, and second, they should assess whether the properly pled factual...