The Scope of the Court’s GVR Authority

By Kevin Russell
on Dec 1, 2009 at 9:56 am

Yesterday, the Court GVR’d (that is, “granted, vacated, and remanded” without deciding the case on the merits) in two cases: Department of Defense v. ACLU (the prisoner abuse photos case that Lyle discusses here) and the pro se prisoner petition in Webster v. Cooper, No. 08-10314.  The latter order prompted a vigorous dissent from Justice Scalia, who argued in that case (although not in the ACLU case) that the Court lacked the power to vacate and remand the decision without deciding the merits.  The posture of the two cases illustrates a line Justice Scalia would draw, limiting the Court’s GVR authority.  The cases also illustrate that despite his persistence in making this argument over the years, the Court is unlikely to change its practice any time soon.

In Webster, the Court summarily granted the petition of a pro se criminal defendant, vacated the judgment, and remanded to the court of appeals to reconsider the decision “in light of Jimenez v. Quarterman, 555 U.S. ___ (2009).”  In Jimenez, the Court held that when a Texas court reinstated a defendant’s previously-forfeited direct appeal, the time for filing a federal habeas petition (which runs from the date the state conviction becomes final) was revived as well.  Justice Scalia dissented in Webster because it was not at all clear, in his view, that the decision below was inconsistent with Jimenez (in fact, the question apparently had not been briefed by either party) and because Jimenez had been on the books for a while when the Fifth Circuit reached its decision.

On the first point, Justice Scalia argued that had Webster actually asked the Court to GVR in light of Jimenez, the Court probably would have denied certiorari because Webster did not raise the Jimenez argument below.  He bemoaned the Court’s apparent adoption of a “failure-friendly practice” that rewards those who fail to preserve claims below with a chance for a “do over” through a GVR.

But Justice Scalia was even more perturbed by the Court’s decision to GVR the case for reconsideration in light of Jimenez when that case was decided long before the court of appeal’s decided this case.   It is one thing, Justice Scalia argued, for the Court to vacate a decision in order to allow the lower court to consider a new decision from the Court, a recent piece of legislation, or some other intervening relevant authority.  That, in fact, is what the Court did in the ACLU photo case – it remanded the case to allow the court of appeals to consider the effect of recent legislation and a Department of Defense certification.  However, it is quite another thing, Justice Scalia argued, to GVR even though nothing of consequence in the legal landscape has changed.  “In my view,” he wrote, “we have no power to set aside the duly recorded judgments of lower courts unless we find them to be in error, or unless they are cast in doubt by a factor arising after they were rendered.”  The decision today was, in his view, an example of “a sort of ersatz summary reversal” in which the Court does “not say that the judgment below was wrong, but since we suspect that it may be wrong and do not want to waste our time figuring it out, we instruct the Court of Appeals to do the job again, with a particular issue prominently in mind.”  He concluded that the Court should “at least give it a new and honest name—not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster.”

Justice Scalia has been expressing this view for years.  In 1996, members of the Court debated the question out in some detail in Lawrence v. Chater, 516 U. S. 163 (1996), and Stutson v. United States, 516 U.S. 163 (1996).  Back then, Justice Thomas and Chief Justice Rehnquist joined Justice Scalia’s dissent (the former Chief only in part).  If Justice Scalia had been hoping that a change in the membership of the Court would start to swing things his way, he must be disappointed:  yesterday, he dissented alone.