The forthcoming article “Reviewing fast or slow: A theory of summary reversal in the judicial hierarchy” by Alexander V. Hirsch, Jonathan P. Kastellec, and Anthony R. Taboni is summarized by the author(s) below.
In recent years, a debate has emerged about the U.S. Supreme Court’s use of its “shadow docket,” which generally describes cases in which the Supreme Court acts without the benefit of full briefing, oral arguments, and signed opinions. Many critics of the shadow docket have argued the Court’s institutional performance suffers when it decides cases too rapidly. This concern has even been mounted by some of the justices themselves; for example, dissenting in a 2025 shadow docket decision regarding the Trump administration’s termination of federal education grants, Justice Elena Kagan wrote, “The risk of error increases when this Court decides cases–—as here–—with barebones briefing, no argument, and scarce time for reflection.”
In this article we focus on one tool in the shadow docket arsenal through which the Court operates in a mode of “quick review”: summary reversal, when the Court reverses a lower court without written briefs on the merits or full arguments. Summary reversal stands in contrast to the “full review” that the Court undertakes when it holds oral arguments, deliberates over several months, and then provides full written opinions (often with concurrences and dissents). We develop a formal model that evaluates the tradeoffs between quick review and full review in the judicial hierarchy.
The model shows how access to summary reversal creates both benefits and costs for the Supreme Court. On the benefits side, the possibility of summary reversal causes ideologically distant lower courts to comply more often; as a result, summary reversal can generate additional compliance on top of what is gained from full review. On the other hand, having summary reversal poses a subtle cost on the higher court (and the hierarchy as a whole) – sometimes, a better-informed lower court that is ideologically aligned with the Supreme Court will choose a disposition with which neither court agrees to avoid the risk of being summarily reversed. This result—which we can think of as “pandering” by lower court judges—means that, somewhat counterintuitively, being able to summary reverse lower courts can actually make the Supreme Court worse off than if it were obligated to engage in full review.
Collectively, these results have important implications for understanding the use and consequences of summary reversals by the Supreme Court, and point towards a broader theoretical understanding of the importance of the shadow docket.
About the Author(s): Alexander V. Hirsch is a Professor of Political Science at the California Institute of Technology, Jonathan P. Kastellec is a professor in the Department of Politics at Princeton University, and Anthony R. Taboni is a post-doctoral research fellow in the Department of Government at the University of Texas at Austin. Their research “Reviewing fast or slow: A theory of summary reversal in the judicial hierarchy” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science.
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