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Tuesday, June 26, 2012

The Math of 5-4 Summary Reversals (or, What I Don't Get About Bullock)

I'm late to the party re: the Supreme Court's 5-4 summary reversal yesterday in the "Citizens United sequel," American Tradition Partnership, Inc. v. Bullock. More to the point, I'm not an expert on campaign finance law specifically, or the First Amendment generally, so I'm not sure I have much to add to the various substantive reactions percolating around / pervading the blogosphere. Instead, the fed courts nerd in me gravitated toward the oddity of the disposition--a 5-4 per curiam summary reversal. While there have cerainly been 5-4 per curiams before, and 5-4 decisions without argument (see Garcia v. Texas for an example of both), off the top of my head, I couldn't think of a single 5-4 summary reversal--and my copy of Stern & Gressman is 4000 miles (and one very big ocean) away.

The reason why 5-4 summary reversals are so unusual is actually somewhat straightforward: As we know, it only takes four votes to grant a petition for certiorari, whereas it (usually) takes five votes for dispositions on the merits--including summary reversals. Whether because it would undermine the four-to-grant rule or for some other reason, the Court by tradition has historically given precedence to four votes for plenary review over five votes for a summary reversal. Thus, a 5-4 summary reversal could only occur if both (1) exactly four Justices object to a summary reversal; and (2) not all of those four want plenary review. [Note that this also explains why the old belief in a "rule of six" for summary reversals probably was never true--five will suffice so long as the other four don't all prefer plenary review.] And needless to say, although either scenario is relatively common, their confluence is not, for reasons I elaborate upon below the fold...  

One possibile situation in which such an outcome could occur is where the four dissenters would have summarily affirmed the decision below--and are therefore dissenting on the merits, rather than on the summary disposition (an example of this appears to be the Court's last 5-4 summary reversal: Riggan v. Virginia, 384 U.S. 152 (1968), which I found through this blog post). For obvious reasons, I have to think that this is a vanishingly small set of cases.

The second way such an outcome could arise is what happened in Bullock: where at least one of the four opponents of summary reversal votes to deny certiorari rather than to grant plenary review (in Bullock, all four of the "dissenters" so voted). In a typical error correction case, one could imagine this happening if some of the dissenting Justices just didn't think the decision below was worth the Court's time one way or the other. Indeed, examples abound of 6-3, 7-2, or 8-1 summary reversals where at least one Justice objected on such terms without expressing a view as to either the merits or the form of the disposition. Perhaps it's just a fluke that there aren't similar examples of such a split in a 5-4 summary reversal; perhaps it's a reflection of deeper institutional realities, since it would be odd if five Justices thought an error so egregious as to warrant a summary reversal and the other four thought the error utterly unworthy of correction.

But whatever else Bullock was, it wasn't a typical error correction case--as made abundantly clear by the Ginsburg/Breyer opinion respecting the stay. And that's where things get interesting...

Let's start with the obvious: I think Rick Hasen is exactly right to suggest that such a move by the lefties is actually a "relative victory" for campaign finance reformers, given the extent to which "[t]aking the case would have been an opportunity for the majority of Supreme Court justices to make things worse [from the reformers' perspective], such as by suggesting that limits on direct contributions to candidates are unconstitutional." I'd only add the stare decisis point: separate from what the Justices didn't have a chance to decide, even what they did decide, i.e., that Citizens United applies to state campaign finance laws, will not have the same value qua stare decisis going forward, since "[a] summary disposition does not enjoy the full precedential value of a case argued on the merits and disposed of by a written opinion." That won't matter in the short term, but it certainly could matter if the day comes when there are no longer five strong votes to defend Citizens United... 

To be sure, I don't think any of this analysis is particulary earth-shattering. Whatever one thinks about the merits of Justice Breyer's move, it's a relatively obvious one, at least once it became clear that there were five unshakeable votes to slap down the Montana Supreme Court. But if it really was that clear, then the less obvious, more interesting question becomes why the conservative Justices acquiesced, since nothing would have stopped any four of the five Justices in the majority from opting for plenary review instead of a summary disposition.

Posted by Steve Vladeck on June 26, 2012 at 08:36 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I'm the author of "this blog post". There were other 5-4 summary reversals. I did a quick search of the Supreme Court Cases Lawyers Edition searching for cases with the following search terms:
DISPOSITION(Certiorari granted) and DISPOSITION(reversed) and DISSENT(dissent!)

That should pick out a good enough sampling to illustrate the point, which was the intention of the article. Though, as another poster noted, there are a few cases this search missed.

With that in mind, even on my search, Riggan is not the most recent 5-4 summary reversal. It is the most recent one with less analysis than American Tradition. Department of Motor Vehicles v. Rios, 410 U.S. 425 (1973) was also short (2 paragraphs), but even in the two paragraphs, it went into a much deeper analysis of the law than American Tradition. The entire substance of American Tradition was to provide a new definitive statement that the quotation from Citizens United is what that case stands for, independent of any factual analysis or other distinction made in American Partnership.

Here's a list of all 5-4 Summary Reversals since Riggan that turned up in my initial search (As you can see, none are comparable):

Calderon v. Coleman, 525 U.S. 141 (1998)
Newport v. Iacobucci, 479 U.S. 92 (1986)
California State Bd. of Equalization v. Chemehuevi Indian Tribe, 474 U.S. 9 (1985)
Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983)
Stone v. Graham, 449 U.S. 39 (1980)
National Socialist Party v. Skokie, 432 U.S. 43(1977)
Estelle v. Dorrough, 420 U.S. 534 (1975)
La Vallee v. Delle Rose, 410 U.S. 690 (1973)
Department of Motor Vehicles v. Rios, 410 U.S. 425 (1973)
Watts v. United States, 394 U.S. 705 (1969)
Riggan v. Virginia, 384 U.S. 152 (1968)

Note: Calderon was a case, as you described, where the four dissenters voted against cert because they didn't think it was worth the Court's time. It was not a substantive disagreement. I cannot vouch for cases that did not turn up by this search method, as the purpose of my search was to illustrate the rarity for the readers of the blog article, not to outline the entire history of such decisions.

Posted by: Samuel Fieldman | Jun 27, 2012 3:27:05 PM


Agreed. More generally, I think it's unusual to find a case where a lower court arguably flatly defied a recently-decided case, but where four Justices nonetheless want to affirm. I wonder if it's related to the growth of perpetual dissents described in Charles Fried, Five to Four: Reflections on the School Voucher Case, 116 Harvard Law Review 163 (2002).

Posted by: William Baude | Jun 27, 2012 12:07:32 PM

Will: Thanks for those examples... I'm sure there are others (I didn't mean to suggest these things _never_ happen), although it's interesting that both of those cases involved splits in which the "dissenters" disagreed about whether the case just wasn't worth their time or whether the majority was wrong on the merits. To my mind, Bullock is qualitatively (if not quantitatively) different, if for no other reason than that the dissenters' vote was consciously based on the belief that plenary review would be pointless, and that this was therefore the lesser of two evils...

Posted by: Steve Vladeck | Jun 27, 2012 3:28:53 AM

Orin: Of course, that's true re: affirmances without opinion. But isn't there a non-frivolous argument that the following is not the kind of "opinion" to which the Court usually accords full precedential value?: "The question presented in this case is whether the holding of Citizens United applies to the Montana state law. There can be no serious doubt that it does. Montana’s arguments in support of the judgment below either were already rejected in Citizens United, or fail to meaningfully distinguish that case."

To me, there's no question that the kind of summary affirmances one sees in AEDPA cases (for example) are precedential--they have reasoning and analysis. But isn't this more like answering a certified question, a maneuver I've always thought was also entitled to less precedential significance?

Posted by: Steve Vladeck | Jun 27, 2012 3:24:48 AM

(Somehow the URLs were stripped out. Spears is OT 2008, Upton is OT 2009).

Posted by: William Baude | Jun 27, 2012 12:16:26 AM

Two other recent 5-4 summary reversals are Sears v. Upton (Scalia and Thomas join a published dissent, Chief and Alito would deny) and Spears v. United States (Kennedy would grant, Thomas dissents without opinion, Chief and Alito join a published dissent). I haven't done a rigorous search.

Posted by: William Baude | Jun 27, 2012 12:15:39 AM


Maybe I'm just missing something, but does the rule about summary dispositions having less precedential value apply to cases decided on the merits with a per curiam opinion but without argument? In the old days, the Court often used to issue summary affirmances, which were just a sentence -- "The Judgment is affirmed." They still happen, but rarely. See, e.g., Cox v. Larios (2004). What we today often call "summary reversals" are a different kind of thing: They are full opinions of the Court that are written like full opinions and are circulated like full opinions, just without oral argument or distinct merits briefing. I'm not sure the rule about summary dispositions applies to them.

Posted by: Orin Kerr | Jun 26, 2012 11:49:21 PM

On the Montana case, if the issue were discussed, it may be that the majority said it would grant (or four would). That threat, for the reasons pointed out, might be enough to shut the rule-of-six argument down.

I believe you are right on four to grant prevailing. I suspect that that's also custom/decorum. Unless there's a supermajority rule for changing the internal rules, which I don't think there is, five can always make something happen if it wants to bad enough.

Posted by: anon | Jun 26, 2012 9:33:06 PM

Anon -- Thanks, although I'm surprised that a Justice who was sure there was a rule of six before yesterday didn't feel compelled to point that out... Regardless, though, I don't think it matters in practice whether the rule is "six" or "five + at least one dissenter not supporting plenary review." It seems to me the distinction matters only where there are exactly four votes _for_ plenary review, in which case I had always understood that those votes win, whether due to the letter of the four-to-grant rule (which, as you note, applies even in the mooted-by-lack-of-stay example), tradition, decorum, or some other explanation...

Posted by: Steve Vladeck | Jun 26, 2012 9:12:18 PM

To add the obvious: if you're a democratic appointee, you are more likely to think the rule of 6 exists.

Posted by: anon | Jun 26, 2012 9:00:26 PM

I'm certain that at least *some* of the Justices think there is a rule of 6 for summary reversals, and I think that all of Justices are aware of the norm, whether or not they fully endorse it. In practice, this makes a difference mainly in AEDPA-type error correction cases, where a circuit court goes off the reservation in a case that is sympathetic for one reason or another. A circulating summary reversal with only five votes does not get out the door, since the five respect the norm.

If the case is important enough, however, it takes five to make law--and five will do so.

The courtesy stay vote in death cases is similar. If four vote to grant cert and five would deny cert and a stay of execution, the *norm* is that one of those against will vote to grant the stay as a courtesy so that the case may be heard. But each Justice's vote is his or her own, and if no one follows the courtesy--say, where for some reason the stay itself is patently offensive to five--then cert will be granted but mooted by the execution.

Posted by: anon | Jun 26, 2012 8:57:59 PM

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