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.