Saturday, January 3, 2015

U.S. Supreme Court "Summary Dispositions"

The United States District Court of the Northern District of Florida landmark decision in Brenner, et al. v. Scott, etc., 999 F.Supp. 2d 1278 (2014), regarding the constitutionality of Florida's restrictions on marriage, makes reference to a U.S. Supreme Court case that was disposed of by  "summary disposition."  The Court stated that US Supreme Court “summary dispositions” bind lower federal courts – unless “doctrinal developments in the Supreme Court undermine the decision.” Aspects of summary disposition are addressed in Alex Hemmer's 2013 informative article, Courts as Managers: American Tradition Partnership v. Bullock and Summary Disposition at the Roberts Court, 122 Yale L.J. Online 209 (2013). 

Summary Dispositions
"Summary dispositions" are provided for by Supreme Court Rule 16 which provides for the "disposition of a petition for a writ of certiorari." It provides that after the Court considers the certiorari briefs (which are shorter than the later full merits briefs), it "will enter an appropriate order" and that the "order may be a summary disposition on the merits."

Hemmer notes that this rule does not explain what a summary disposition is, when or  why such an order is appropriate, and what precedential value it holds. He explains that such "questions are left to the Court to work out in practice" and that summary disposition orders play an "ambiguous role" and have "amorphous boundaries."

Three Types of Summary Dispositions
Hemmer explains that "[o]ver the past forty years, the Court has relied on three common, if controversial, forms of summary disposition" as follows:
  • summary orders, granting the certiorari petition and affirming or reversing the judgment without explanation (generally per curiam - "by the Court" or unsigned) 
  • summary opinions, granting the certiorari petition and affirming or reversing the judgment with an explanation, usually with a brief discussion of the facts and issues involved (generally per curiam) 
  • reconsideration orders - "grant, vacate, and remand" ("GVR"), court grants the certiorari petition, vacates the judgment below and remands the case to the lower court for "reconsideration". 
Merits or Non-Merits Decisions
Professor Vikram Amar explains in a blog post, that these summary dispositions,  are based "merely on the certiorari-stage briefs, without the benefit of arguments or merits briefings." But he addes that some types of summary dispositions do reach the merits of the appeal. 

Amran explains that in GVR dispositions, the Court "is formally not weighing in on the merits but merely giving the lower court a first opportunity to apply the intervening decision." But that the some types of summary dispositions do reach the merits of the appeal. Hemmer reviews that technically a GVR does "not amount to a final determination on the merits" but rather merely indicates that the Court believes that upon reconsideration, there is a "reasonable probability" that the lower court would reject a legal premise upon which it relied.

Summary Disposition in the Warren, Burger, and Robert Courts
Hemmer reviews the extent and nature of summary disposition used in the Warren Court (alot of summary dispositions with little explanation), the Burger Court (little summary orders, alot of GVRs), and the present Roberts Court (use of summary orders and GVR, but with expansion of use in a managerial capacity).   Hemmer opines that the Roberts Court's expansion of use is not only where the decision below did not rely on changed legal premises or present clear error but for the court below to "consider arguments or case law that they could have relief on but did not"- that is "in search of errors."  He notes Justice Scalia's lack of favor of such practice - "GVR-in-light-of-nothing."  

Capacities of Appellate Courts
Hemmer and the authors he references explain that generally courts of appeals can have two capacities: "a lawmaking capacity in which they" "announce, clarify, and harmonizes the rules of decisions" and "an error-correcting capacity, in which they" "determine if prejudicial errors were committed" in "applying those rules to facts."  

Hemmer cites an author who stated that the Supreme Court "is not, and has never been, primarily concerned with the correction of errors in lower court decisions."  Hemmer questions the suitability of "summary opinions" for "making law""because they are not the products of merits briefing and oral argument." Hemmer argues that the best way to understand "summary dispositions" (and the way the Roberts Court does understand it), is as a "tool to manage and oversee the docket of the lower court" and to ensure that the "lower-court decision takes account of intervening precedent without the Court spending its own time and energy on cases that pose similar issues." Hemmer opines that in this manner, the Court acts in a "managerial capacity" rather than in a "lawmaking" or "error-correcting capacity." 

Precendential Value and Limitations on Usage
In Hardwick v. Bowers, 706 F.2d 1202 (11th Cir. 1985), the Court cited the general rule of Hick v. Miranda, 422 U.S. 332, 344 (1975) that a "summary affirmance of the Supreme Court has binding precedential effect." 

Limitations on the Scope: Judgment Distinguished from Reasoning
But the Court in Hick also held that if the summary disposition lacks an explanation of its reasons, its "holding must be carefully limited." The Hardwick  Court stated that although a summary affirmance "represents an approval by the Supreme Court of the judgment below but should not be taken as an endorsement of the reasoning of the lower court" and that "finding the precise limits of a summary affirmance has proven to be no easy task." The Harwick Court  explains that a court "seeking to identify the issues governed by a summary affirmance should examine the issues necessarily decided in reaching the result as well as in the jurisdictional statement" and cited another Supreme Court case that held that a summary affirmance is binding only to the "precise issues presented and necessarily decided." 

"Subsequent Developments" that "Undermine" Precedential Value
The Hardwick Court also reviewed that a "summary disposition binds lower court only until the Supreme Court indicates otherwise" but "developments subsequent " subsequent to a summary disposition" may "undermine whatever controlling weight it once may have possessed." 

Hardwick reviews that "[d]octrinal developments need not take the form of an outright reversal of the earlier case. The Supreme Court may indicate its willingness to reverse or reconsider a prior opinion with such clarity that a lower court may property refuse to follow what appears to be binding precedent."  The Court further states that "[e]ven less clear-cut expressions by the Supreme Court can erode an earlier summary disposition because summary actions by the Court do not carry the full precedential weight of a decision announced in a written opinion after consideration of briefs and oral argument."