Justice Thomas Faults The Court’s Inconsistent Approach to Summary Reversals

Today the Supreme Court summarily reversed an Eleventh Circuit capital case, Whitton v. Dixon. Justice Thomas dissented, joined for the most part by Justice Alito. The Eleventh Circuit issued a 60-page decision, but the Court found objectionable two sentences. As Justice Thomas points out in his dissent, the Eleventh Circuit can simply strip out those two sentences, and the outcome would remain unchanged. This seems to be the essence of harmless error. Why, then, did the Court waste everyone’s time with a summary reversal?

Justice Thomas charges his colleagues with an inconsistent approach to summary reversal.

This Court has increasingly granted summary relief in certain cases based on lower court errors that seemingly had no effect on the outcome of the case. See Pitts v. Mississippi, 607 U. S. 1 (2025) (per curiam) (granting summary vacatur for man who sexually abused his daughter after likely harmless trial error); Doe v. Dynamic Physical Therapy, LLC, 607 U. S. 11 (2025) (per curiam) (granting summary vacatur after likely harmless state intermediate appellate court error). It would be one thing if this practice reflected the Court’s consistent commitment to correcting legal error in all cases. But, in reality, this Court routinely declines to provide relief to law-abiding Americans when itwould actually matter, even after lower courts conspicuously flout this Court’s precedents in ruling against them.

Over the years, I’ve noticed this practice. The Court issues a narrow summary reversal on grounds that are easily surmounted, the lower court affirms the conviction, and then the Supreme Court denies cert. What’s the point? Why waste so much time and effort on correcting an error that will not affect the outcome of the case. The Supreme Court often says its certiorari docket is not designed for error correction, but as usual, all the rules go out the window for capital cases. The murder in this case occurred in 1990. As often happens in capital cases, delay is the end and not the means.

Justice Thomas also flags specific cases where his colleagues denied certiorari, even as lower courts flouted the Supreme Court. First, he noted two post-SFFA affirmative action cases involving the Boston School Committee and Thomas Jefferson High School in Alexandria, Virginia. The Court refused to “correct a glaring constitutional error.” Second, he pointed to the Court’s refusal to revisit the Feres doctrine in Beck v. United States. (Justice Alito did not join this part of the dissent, as he did not dissent in Beck.) Third, Thomas cited two cases from Speech First that challenged campus bias response teams. Lower courts found there was no standing, and the Court did nothing.

I continue to think the Supreme Court’s mandatory jurisdiction should be expanded. Too many important issues are being left unresolved, and the Justices offer no explanation why. This failure to take important cases is compound when the Justices expend their limited resources in summarily reversing a capital case where the outcome will not change.