Reevaluating the Implications of Decision-Making Models The Role of Summary Decisions in US Supreme Court Analysis Author(s): Ali

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Reevaluating the Implications of Decision-Making Models The Role of Summary Decisions in US Supreme Court Analysis Author(s): Ali
  Reevaluating the Implications of Decision-Making ModelsThe Role of Summary Decisions in US Supreme Court AnalysisAuthor(s): Ali S. Masood and Donald R. SongerSource: Journal of Law and Courts, Vol. 1, No. 2 (Fall 2013), pp. 363-389Published by: The University of Chicago Press Stable URL: . Accessed: 10/08/2013 10:59 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at  .  . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new formsof scholarship. For more information about JSTOR, please contact  . The University of Chicago Press  is collaborating with JSTOR to digitize, preserve and extend access to  Journalof Law and Courts. This content downloaded from on Sat, 10 Aug 2013 10:59:11 AMAll use subject to JSTOR Terms and Conditions  Reevaluating the Implicationsof Decision-Making Models THE ROLE OF SUMMARY DECISIONS INUS SUPREME COURT ANALYSIS  ALI S. MASOOD,  University of South Carolina  DONALD R. SONGER,  University of South Carolina  ABSTRACT Most empirical analyses of the US Supreme Court are limited to the Court ’ s plenary decisions. We con-tend that summary decisions are an important component of the total decisional output of the Courtand, as such, should be included in any overall assessment of the decision making of the Court or itsimpact on the courts below. We analyze the universe of the Court ’ s summary decisions from 1995 to2005. We assess the conventional wisdom that a conservative Court should primarily disturb liberallower-court decisions and that, in all cases granted certiorari, the policy preferences of the justices shouldhave a major impact on their votes. We  󿬁 nd support for neither of these expectations. Richard Nixon and Ronald Reagan were widely perceived to be  “ law-and-order  ”  pres-idents. Both presidents were strongly committed to changing the course of jurispru-dence of the Warren Court, which resulted in major gains for the rights of criminaldefendants  ð Flamm 2005 Þ . In 1972, Nixon appointed William Rehnquist to the Su-preme Court, who, over his tenure as associate justice, cast 85% of his votes in plenary criminal cases in favor of the law-and-order   ð i.e., the  “ conservative ” Þ  position. 1 Reagan ’ selevation of Rehnquist to chief justice in 1986 appeared to further advance the law-and-order agenda. Thus, it might surprise readers of this journal that the Court Rehn-quist presided over from 1995 to 2005, consisting of seven Republican and two Demo-cratic justices, granted certiorari to over 1,100 petitions from criminal defendants who Contact the corresponding author, Ali Shiraz Masood, at masoodas @ Authors ’  calculation using the Spaeth Supreme Court database  ð Þ , with citation as the unit of analysis, for the 1972  –  85 terms of the Court.  Journal of Law and Courts (Fall 2013) © 2013 by the Law and Courts Organized Section of the American Political Science Association. All rights reserved. 2164-6570/2013/0102-0005$10.00 This content downloaded from on Sat, 10 Aug 2013 10:59:11 AMAll use subject to JSTOR Terms and Conditions  lost their appeal in the court below, and it nulli 󿬁 ed that judgment against the allegedcriminals in over 90% of its decisions. In the remainder of this article, we seek to gaina wider perspective on Supreme Court decision making that helps to explain thesesurprising decisional trends of the Rehnquist Court.The  󿬁 nding of the high support for petitions from criminal defendants appearsto go against conventional wisdom. This is because conventional understanding of the Court is largely derived from analyses that systematically exclude any consider-ation of the Supreme Court ’ s summary decisions. We contend that existing understand-ing of decision making is suspect, due to the exclusive reliance on the Court ’ s formally argued decisions. Excluded from the existing analyses derived from virtually all of the mostprominent decision-making models  ð e.g., legal, attitudinal, and strategic models Þ  are theCourt ’ s summary decisions. 2  While some scholars discount the import of summarily de-cided cases for a variety of reasons, we argue below that such concerns are not persuasive.Reconsidering some of the conventional wisdom is especially important in lightof the growing frequency of summary decisions in contrast to a shrinking plenary docket. One critical problem with relying exclusively on orally argued cases, such asthose in the Spaeth Database, is that one may get a systematically inaccurate perceptionof the impact of the Supreme Court on the policy output of the judicial system. For instance, the Rehnquist Court is generally perceived to be a conservative Court thatmainly supports conservative policy positions  —  af  󿬁 rming conservative decisions by thecourts below and disturbing   ð i.e., reversing or vacating  Þ  liberal decisions of the courtsbelow.However,ourexaminationoftheRehnquistCourt ’ sfulldecision-makingdocketsuggests that plenary decisions account for less than half of the Court ’ s total decisionoutput, with summary decisions making up the majority of its decisions. We believethat only through analyzing the full decision-making docket of the Court can the valid-ity of decision-making models be truly tested. For instance, under an attitudinal under-standing, the total effect of the Rehnquist Court should clearly be conservative. Our testsof this assumption, described below, indicate that contrary to predictions derived fromthe attitudinal model, the actions of the Rehnquist Court frequently supported liberaloutcomes in the lower courts.Consideration of summary as well as plenary decisions of the Court may also raisequestions about the extent to which the justices are concerned with making broad legalpolicy rather than correcting errors in the courts below. The Court most often disposesof a case summarily, rather than granting full plenary consideration, when it consid-ers the basic law to be well settled. Thus, summary dispositions are used for the correc-tion of legal errors in the courts below, to guarantee the uniformity of federal or consti- 2. We understand summary decisions to include the disposition of all cases granted certiorari butdecided without either the submission of formal briefs by the litigants or oral argument in front of the justices. Plenary decisions refer to those made after the grant of certiorari is followed by both thesubmission of briefs and oral argument. 364 | JOURNAL OF LAW AND COURTS | FALL 2013 This content downloaded from on Sat, 10 Aug 2013 10:59:11 AMAll use subject to JSTOR Terms and Conditions  tutional law across circuits, or to spell out new implications of settled law that the Courtdoes not believe are important enough to warrant fuller, more time-consuming treat-ment. As a re 󿬂 ection of this view that the Court relies on summary decisions when itbelieves that the applicable law is clear, a large majority of summary decisions explic-itly direct that a lower court ’ s decision is vacated because the opinion of that court failedto include an analysis of the most relevant precedent. Typically, the summary deci-sion goes on to direct the lower court to reconsider its earlier decision  “ in light of  ”  a spe-ci 󿬁 c precedent that the Supreme Court considers is the best statement of the law bind-ing on the case.Summary decisions take several different forms. Some, like the most frequent typesof plenary decisions, announce that the decision of the court below is either af  󿬁 rmedor reversed. These reversals and af  󿬁 rmances may include a per curiam opinion that isessentially indistinguishable from the per curiam opinions in plenary decisions. Con- versely, the decision may be announced with a very brief order   ð often just one or twosentences in length Þ . However, these af  󿬁 rmances and reversals constitute only a smallportion of the Court ’ s summary decisions. As table 1 shows, af  󿬁 rmances and reversalsaccount for less than 5% of all summary decisions during the 1995  –  2005 terms. By far,the most common type of summary decision is referred to as a GVR   ð grant, vacate,andremand Þ  —  a decision in which the Court grants the petition for certiorari, vacates thelower-court decision, and remands the case to the court below with directions to recon-sider the case  “ in light of  ”  a speci 󿬁 c precedent announced by the SupremeCourt. 3  Asthe data in the table indicate, close to 94% of all summary decisions take the formof a GVR.Disputes come to the Supreme Court from a great variety of sources, including thefederal courts of appeals, other federal courts on occasion, and state high courts. Casesarriving at the Supreme Court from any of these sources may be decided by either summary or plenary decision. Table 2 details which lower courts ’ decisions are resolvedby summary and plenary decisions. The patterns are generally similar. Over 80% of thecases decided both summarily and by plenary review come from the US courts of appeals. Within the courts of appeals, the size of the circuit ’ s docket has a clear impacton the number of cases reviewed. The First Circuit, which decides the fewest cases,has the smallest number of cases reviewed through either plenary or summary treat-ment by the Court. The Ninth Circuit, which has the largest caseload, is frequently reviewed. The two circuits that stand out as having a different relative rate of review for plenary compared to summary decisions are the Fifth and Eleventh Circuits. Inboth instances, the high number of summary decisions appears to be driven by thehigh number of cases from the circuit receiving a GVR in light of the  Booker   decision ð United States v. Booker  , 543 U.S. 220  ½ 2005 Þ . 3. A few GVRs are issued in light of other legal developments, including opinions of the solicitor general or changes in federal statute. Summary Decisions in US Supreme Court Analysis   | 365 This content downloaded from on Sat, 10 Aug 2013 10:59:11 AMAll use subject to JSTOR Terms and Conditions  Most summary decisions do not direct the lower courts to adopt a different out-come with a corresponding change in the ideological direction of the decision. Instead,the decision below is vacated because the opinion contains an incorrect statement of current law; in particular, the Supreme Court most often notes that the opinion of thelower court did not discuss and apply the most relevant precedent, in some cases be-cause that precedent was set after the lower-court decision. Unlike plenary decisions,summary decisions are not informed by more detailed briefs or oral arguments from theparties. Typically, the only information received by the justices before they issue a sum-mary decision is contained in the certiorari petitions by each side, their clerk  ’ s certiorarimemo on the petition, and possibly the opinion of the court below. Given this lack of information, the most common form of summary decision, the GVR, is a brief order  Table 1. Supreme Court Summary Disposition, 1995  –  2005Decision Type Mean SD Frequency GVR .936 .245 1,481GRR .025 .157 40 Af  󿬁 rmed .031 .173 49Reversed .008 .087 12Total 1,582 Note.  —  GVR  5 grant, vacate, and remand; GRR  5 grant, reverse, and remand. Table 2. Sources of Supreme Court Plenary and Summary Decisions, 1995  –  2005Court Reviewed Plenary Decisions % Summary Decisions %US Court of Appeals:First Circuit 15 1.8 35 2.20Second Circuit 45 5.5 63 4.00Third Circuit 35 4.3 47 3.00Fourth Circuit 55 6.7 135 8.50Fifth Circuit 58 7.1 290 18.40Sixth Circuit 62 7.6 125 7.90Seventh Circuit 46 5.6 84 5.30Eighth Circuit 52 6.3 86 5.40Ninth Circuit 182 22.2 185 11.70Tenth Circuit 33 4 59 3.70Eleventh Circuit 57 6.9 241 15.30DC Circuit 30 3.6 14 .90Other courts:US district courts 29 3.5 7 .50Other courts 122 14.9 208 13.20Total 821 100.00 1,579 100.00 366 | JOURNAL OF LAW AND COURTS | FALL 2013 This content downloaded from on Sat, 10 Aug 2013 10:59:11 AMAll use subject to JSTOR Terms and Conditions
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