Reviewing fast or slow: A theory of summary reversal in the judicial hierarchy

Abstract Appellate courts with discretionary dockets have multiple ways to review lower courts. We develop a formal model that evaluates the trade‐offs 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 distorts 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.