This aspect of the “shadow” docket remains largely overlooked.
In a recent move, the Supreme Court issued a summary reversal in an Eleventh Circuit death-penalty case, Whitton v. Dixon. Justice Thomas wrote a dissent, joined in large part by Justice Alito. The Eleventh Circuit had produced a 60-page ruling, yet the Court objected to two sentences. Thomas notes in his dissent that removing those two sentences would not alter the outcome. That observation epitomizes the idea of harmless error. If so, why did the Court go ahead with a summary reversal that consumed everyone’s time?
Justice Thomas accuses his colleagues of inconsistent methods when it comes to summary reversals.
This Court has increasingly granted swift relief in cases where the lower court errors appeared to have no bearing on the result. See Pitts v. Mississippi, 607 U. S. 1 (2025) (per curiam) (granting summary vacatur for a man who sexually abused his daughter after a likely harmless trial error); Doe v. Dynamic Physical Therapy, LLC, 607 U. S. 11 (2025) (per curiam) (granting summary vacatur following a likely harmless state intermediate appellate court error). It would be one thing if this practice reflected a steadfast commitment to correcting legal error in every case. But in reality, this Court routinely refuses to provide relief to law-abiding Americans when it would truly matter, even after lower courts clearly flout this Court’s precedents in ruling against them.
Over the years, I’ve observed this pattern. The Court issues a narrow, summary reversal on easily surmountable grounds, the lower court upholds the conviction, and then the Supreme Court denies certiorari. What purpose does this serve? Why expend so much effort to fix an error that will not affect the result? The Court often contends that its certiorari docket is not meant for error correction, yet, as is common in capital cases, the rules are bent. The murder at issue took place in 1990. And in capital prosecutions, delay is usually the end rather than the means.
Justice Thomas also highlights specific instances where certiorari was denied even as lower courts flouted Supreme Court doctrine. First, he cites two post-SFFA affirmative action cases involving the Boston School Committee and Thomas Jefferson High School in Alexandria, Virginia, where the Court declined to correct a conspicuous constitutional error. Second, he notes the Court’s refusal to revisit the Feres doctrine in Beck v. United States. (Justice Alito did not join this portion of the dissent, as he did not dissent in Beck.) Third, Thomas points to two Speech First cases challenging campus bias-response teams, where lower courts dismissed for lack of standing and the Court did nothing.
I remain convinced that the Court’s mandatory jurisdiction should be broadened. Too many significant questions remain unresolved, and the Justices offer no explanation for this retention. This deficiency is compounded when the Justices devote scarce resources to a rapid reversal of a capital case whose result would be unchanged.
