Montana v. Hall, 481 U.S. 400 (1987)

Author: Justice Marshall

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Montana v. Hall, 481 U.S. 400 (1987)


For years, I have been troubled by our disposition of appeals and petitions for certiorari through summary per curiam opinions, without plenary briefing on the merits of the issues decided.{1} Other Justices have registered similar objections, disputing the Court’s application of the criteria that supposedly determine when a summary disposition is clearly justified.{2} Our persistent indulgence in this practice over the objections of our colleagues has tarnished what has long been considered one of this judicial institution’s greatest qualities, the fairness and integrity of its decisionmaking process.

Through summary dispositions, we deprive the litigants of a fair opportunity to be heard on the merits. Our Rules tell the petitioner and respondent that we will grant review on writ of certiorari "when there are special and important reasons therefor."{3} In listing the considerations that are important in deciding whether review should be granted, we mention such things as conflicting decisions from other courts and unsettled questions of federal law. We do not indicate that the parties should address the merits of the lower court’s decision beyond what is necessary to demonstrate whether the case is important enough to receive plenary review.{4} Our 30-page limit for petitions and responses, and the command that they be "as short as possible,"{5} unmistakably indicate that these papers should not contain detailed discussions of the merits. If we find the case sufficiently important, the Rules inform the parties that the petition will be granted and "[t]he case then will stand for briefing and oral argument."{6} Yet when we issue a summary disposition, we ignore these instructions and proceed to decide the case as if it has been fully briefed on the merits. In my view, simply put, this is not fair.{7}

Admittedly, the Rules indicate that summary dispositions on the merits are possible,{8} but, in light of our instructions regarding the preparation of petitions and responses, this places the litigants in a difficult dilemma. If they venture beyond arguments for granting or denying certiorari, they risk violating the Rules; but if they fail to cover the merits of the lower court’s decision in full, they risk summary disposition without having been heard.{9} In response to these pressures, counsel may tend to extend their arguments in petitions and responses beyond the purposes defined in the Rules. Apart from increasing the litigants’ costs, this tendency can only increase our workload, thereby giving those who favor uncounseled summary dispositions additional justification for not allowing full briefing on the merits.{10}

Not only do we reach these summary dispositions without the benefit of thorough briefing, but the Court often acts without obtaining the complete record of the proceedings below. Records are no longer automatically certified and delivered to us for every petition.{11} In fact, we expressly discourage transmission of the record at this stage of the proceedings,{12} which again indicates that the focus of certiorari is on whether a case is important enough to warrant plenary review, and not whether, after abbreviated review, we are able to conclude that the case was rightly or wrongly decided below. Of course, we may call for the record where we think a summary disposition might be proper, and our Clerk notifies the parties of this development, but we do not provide for supplemental briefing on the merits.{13} All too often, as in the case decided today, the Court does not even bother to call for the record. Again, counsel face a dilemma: they may routinely request that records be transmitted, thus protecting the interests of their clients at the risk of violating the Rules, or they may fail to request transmission and risk summary disposition based on less than complete review.

I cannot accept the proposition that additional briefing and review of the full record will increase the workload of this Court unbearably. Our duty to litigants today is to consider carefully every petition and response filed in this Court. But our duty extends to future litigants as well, and it is heightened when we issue written opinions. To reduce the incidence of mistakes and to avoid delivering conflicting or confusing opinions, our decisions in these cases should be made only after we have had an opportunity to consider comprehensive briefs and review the records in their entirety. We are not infallible, as is evidenced, for example, by the number of cases each Term that are dismissed after plenary briefing and oral argument as having been improvidently granted. The time and effort required to read supplemental briefs in cases for which we are considering summary dispositions would be minimal,{14} and the relative gains substantial.

More is at stake, however, than offsetting the litigants’ entitlement to be heard on the merits against our desires to avoid increasing the workload. Summary dispositions often do not accord proper respect for the judgments of the lower courts, particularly when these judgments are reversed.{15} The judges below have had the benefit of full briefing on the merits and review of the entire record. They must perceive -- correctly -- that our cavalier reversals are inherently less well-informed.

I believe, moreover, that summary dispositions in many instances display insufficient respect for the views of dissenting colleagues on this Court. The tendency is to forget that we are equally uninformed. What troubles a single Justice about a particular case may become, after full briefing, a decisive factor in the judgment of the Court. As it is, we forge ahead issuing per curiam opinions as if the issue were crystal clear, at times over objection from as many as four other Justices.{16} It is not unreasonable to believe, as I do, that the integrity of a summary decision from a divided Court would benefit from additional briefing on the merits by those who have litigated the issues of the case from its inception.

"Per curiam" is a Latin phrase meaning "[b]y the court,"{17} which should distinguish an opinion of the whole Court from an opinion written by any one Justice. Our use of a lengthy per curiam opinion, over the dissent of those who would set the case for briefing, to resolve the merits of a case without devoting the usual time or consideration to the issues presented, is wrong. Such an opinion does not speak for the entire Court on a matter so clear that the Court can and should speak with one voice. Instead, it speaks for a majority of Justices who take it upon themselves to resolve the merits of a dispute solely on the basis of preliminary petitions and responses.

I can think of no compelling reason, and to date none has been suggested, why we should nurture a practice that can only foster resentment, uncertainty, and error. Rather, I believe that, when the Court contemplates a summary disposition it should, at the very least, invite the parties to file supplemental briefs on the merits, at their option. This simple accommodation to the reasonable expectations of the litigants, to the integrity of the lower courts, and to the desires of other Justices for a more studied decision would go a long way toward achieving the fairness and accuracy that the Nation rightfully expects from its Court of last resort. Until this, or some other, reasonable accommodation is implemented, I remain in dissent.

1. Nor was the jury’s conviction of respondent on the charge of incest an implied acquittal of the offense of sexual assault; there would have been an implied acquittal only if the jury had been presented with charges of both sexual assault and incest and had chosen to convict respondent of incest. See Green v. United States, 355 U.S. 184 (1957).

2. We explicitly noted in Brown that the case did not raise "the double jeopardy questions that may arise . . . after a conviction is reversed on appeal." 432 U.S. at 165, n. 6.

3. As JUSTICE STEVENS implicitly acknowledges, we have jurisdiction over this petition under 28 U.S.C. § 1267(3). The Montana court’s decision "fairly appears to rest primarily on federal law, or to be interwoven with the federal law," and "the adequacy and independence of any possible state law ground is not clear from the face of the opinion." Michigan v. Long, 463 U.S. 1032, 1040-1041 (1983).

4. We express no opinion on the correctness, as a matter of federal constitutional law, of the Montana Supreme Court’s conclusion that sexual assault and incest are the "same" offenses.


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Chicago: Marshall, "Marshall, J., Dissenting," Montana v. Hall, 481 U.S. 400 (1987) in 481 U.S. 400 481 U.S. 406–481 U.S. 410. Original Sources, accessed March 29, 2023,

MLA: Marshall. "Marshall, J., Dissenting." Montana v. Hall, 481 U.S. 400 (1987), in 481 U.S. 400, pp. 481 U.S. 406–481 U.S. 410. Original Sources. 29 Mar. 2023.

Harvard: Marshall, 'Marshall, J., Dissenting' in Montana v. Hall, 481 U.S. 400 (1987). cited in 1987, 481 U.S. 400, pp.481 U.S. 406–481 U.S. 410. Original Sources, retrieved 29 March 2023, from