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