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 “fast review,” in which a higher court summarily reverses a lower court. While we show that the option of costless reversal via summary reversal can increase compliance by lower courts, we also find that it sometimes harms the higher court, relative to engaging in the costly auditing of full review. When the higher court has uncertainty over the lower court’s preferences, the threat of summary reversal can lead an allied lower court to “pander” by issuing the opposite disposition to that preferred by the higher court. 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 mainly been empirically focused to date.