Debate continues over the Court’s “GVR” authority

By Kevin Russell
on Jan 21, 2010 at 9:20 am

On Tuesday, members of the Court continued a long-running debate over the appropriate use of its authority to grant certiorari in a case and then vacate and remand for further proceedings without deciding whether the original decision was wrong (a so-called “GVR”).  As noted here, Justice Scalia dissented from a GVR earlier this year, complaining that the Court had ordered the court of appeals to reconsider its decision in light of a case that had been decided long before the court of appeals rendered its decision.  In that case, Justice Scalia dissented alone.  On Tuesday, he was joined by three other members of the Court in two opinions.

The case was Wellons v. Hall, No. 09-5731, a capital case from the Eleventh Circuit.  The majority per curiam opinion opens with this attention-grabbing line: “From beginning to end, judicial proceedings conducted for the purpose of deciding whether a defendant shall be put to death must be conducted with dignity and respect.”  What kind of indignity and disrespect was involved here?  It turns out that after Wellons was convicted and sentenced to death, his attorneys learned that either during or immediately following the death penalty phase of the case “some jury members gave the trial judge chocolate shaped as male genitalia and the bailiff chocolate shaped as female breasts.”  Because the facts relating to the incident were not in the trial record, the Georgia Supreme Court refused to consider it on direct appeal, and a state habeas court later refused to inquire into the allegations, finding that the matter had been decided by the state supreme court on direct appeal.  A federal habeas court likewise refused to permit an evidentiary hearing on the matter, finding Wellons’s claims procedurally barred, a ruling that was affirmed by the Eleventh Circuit.

After the Eleventh Circuit issued its decision, the U.S. Supreme Court decided a case, Cone v. Bell, which all of the Justices agreed rendered the procedural bar ruling in Wellons’s case erroneous.  Ordinarily, this would be a classic case for a GVR, to let the Eleventh Circuit reconsider its ruling in light of Cone.  But the difficulty arose in this case because the court of appeals had also said that it would have rejected Wellons’s claims on the merits even if they hadn’t been procedurally barred.  That, four of the Justices thought, meant that there was no reason to send the case back for reconsideration in light of Cone.  But the majority was not convinced that the court of appeals has actually decided the pertinent question – which was not whether Wellons deserved to win on the merits of his claim, but whether he was entitled to discovery and an evidentiary hearing to try to prove his claims.  And the majority thought that even if the court of appeals had asked the right question, its answer was based in part on its Cone error.

Justice Scalia was not persuaded.  Joined by Justice Thomas, he complained that the majority’s real motive to send the case back was its belief that the court of appeals was probably wrong in denying Wellons an evidentiary hearing, a belief that had nothing to do with Cone.  Justice Scalia noted that he had previously complained about the “flabby” standard the Court used for deciding whether to GVR a case; “but today,” he wrote, “the Court outdoes itself.”  Its decision was, he said, part of the “systematic degradation of our traditional requirements for a GVR.”  And, he believed, it showed disrespect for the court of appeals.  He even went so far as to suggest that an “appropriately self-respecting response to today’s summary vacatur would be summary reissuance of the same opinion, minus the discussion of Cone.”  (The majority hinted that it would not view such a result with favor: “To the contrary, in light of our decision in Cone, we assume the court will consider, on the merits, whether petitioner’s allegations, together with the undisputed facts, warrant discovery and an evidentiary hearing.”)

The Chief Justice and Justice Alito did not join Justice Scalia’s opinion, perhaps because of its aggressive tone.  Instead, Justice Alito wrote separately, in an opinion joined by the Chief Justice, to explain in some detail why he believed that the opinion below demonstrated that the court of appeals had, in fact, fully and fairly considered the merits of Wellons’s claim.  He further “agree[d] with the Court that the strange and tasteless gifts that were given to the trial judge and bailiff are facially troubling, and I am certainly not prepared at this point to say that the decision below on the discovery issue was correct.”  But he and the Chief Justice were also not prepared to use the GVR device to require the court of appeals to take a second look at the issue.