Reviewing Fast or Slow: A Theory of Summary Reversal in the Judicial Hierarchy

Publication Year
2025

Type

Journal Article
Abstract

Appellate courts with discretionary dockets have multiple ways to review lower courts.

We develop a formal model that evaluates the tradeoffs between “full review”—which

features full briefing, oral arguments, and signed opinions—versus “quick review,”

where a higher court can summarily reverse a lower court. We show that having the

option of costless summary reversal can increase compliance by lower courts, but also

distort their behavior compared to relying only on costly full review. When the higher

court is uncertain about the lower court’s preferences, the threat of summary reversal

can lead an aligned lower court to “pander” and issue the opposite disposition to that

preferred by the higher court. Access to summary reversal can therefore harm the

higher court in some circumstances. Our analysis provides a theoretical foundation for

growing concern over the U.S. Supreme Court’s “shadow docket”—of which summarily

reversals are a component—which has been empirically focused to date.

Journal
American Journal of Political Science