There aren't a lot of cases where four justices dissent from
a summary affirmances, but there are some. See, e.g., American
Motors Corp. v. City of Kenosha, 356 U.S. 21 (1958), which
summarily affirmed the Supreme Court of Wisconsin in an
intergovernmental
tax case, with four justices dissenting for the reasons given in their
dissent in a case decided earlier that month. This bears out J.J.
Gass's point that they may have thought there was no reason to think
they
could pick up a fifth vote, so why bother demanding plenary
consideration.
Given the Court's incredibly limited appellate docket, not a lot of
these
cases arise. But there is an analogous circumstance when five
justices vote to "dig" (dismiss as improvidently granted) a
case that four other justices continue to want to hear. Ricky
Revesz and I discuss this issue in our article, Nonmajority Rules
and the Supreme Court, 136 U. Pa. L. Rev. 1067, 1083-95 (1988).
Pam
At 08:34 PM 5/27/2004 -0400, JJ Gass wrote:
I suppose
a justice could--at least
in theory--dissent from a summary affirmance by casting a vote for
summary reversal. One would generally expect such a dissent to end
with something like this: "I would therefore summarily reverse
the District Court's judgment, or at the very least note probable
jurisdiction." The all-or-nothing stance would feel a bit odd,
especially if it came from a justice (or four) who could provide the
fourth vote for probable jurisdiction. But the strategic reasons
for not wanting the Court to take the case and then decide it the
"wrong" way are apparent.
****
Rick Pildes writes:
4 justices are sufficient to require that probable jurisdiction be noted
in
a case in the Court's appellate jurisdiction (just as 4 are sufficient to
grant cert.). Thus, the Court cannot summarily affirm an appeal by
a 5-4
vote, if the 4 dissenters vote to note probable jurisdiction. And I
do not
know whether there's any mechanism by which a Justice, in a mandatory
appeal like the Texas case, can vote to dissent from an affirmance
without
also voting to note probable jurisdiction.
Rick Pildes
Pamela S. Karlan
Kenneth and Harle Montgomery Professor of Public Interest Law
Stanford Law School
559 Nathan Abbott Way
Stanford, CA 94305-8610
karlan@stanford.edu
650.725.4851