Why the Supreme Court should stop GVR'ing the solicitor general's "rationale confessions of error".

• Author: Murray, John M.
• Position: Granted certiorari, vacated judgments, remands for further consideration

"Once we accept a confession of error at face value and make it the controlling and decisive factor in our decision, we no longer administer a system of justice under a government of laws." (1)

INTRODUCTION

In 1988, Horacio Alvarado was sentenced to three years in prison for extortion and conspiracy to commit extortion. (2) Described as half black and half Puerto Rican, Alvarado appealed his conviction, claiming that the federal prosecutor discriminatorily exercised peremptory challenges during jury selection, violating Batson v. Kentucky. (3) Batson prohibits prosecutors from challenging potential jurors based exclusively on their race. (4) Without ruling on whether Alvarado had shown a prima facie Batson error, the United States Court of Appeals for the Second Circuit affirmed Alvarado's conviction. (5) The court instead held that as long as the jury constituted a "fair cross-section of the community," Alvarado had not been denied an impartial jury under the Sixth Amendment. (6)

Alvarado petitioned for certiorari to the Supreme Court, arguing that the Second Circuit should have analyzed his appeal under Batson rather than the Sixth Amendment's cross-section approach. Confessing error, the Solicitor General agreed. In spite of the conceded error, however, the Solicitor urged the Court to deny certiorari because the Second Circuit had reached the correct result. (7) The Solicitor General contended that because Alvarado failed to make a prima facie showing of intentional discrimination, even if the Second Circuit had properly applied Batson, the outcome would have been the same. (8) Thus, the Solicitor General believed that the final disposition of the case was correct despite an erroneous rationale.

The Supreme Court ignored the Solicitor General's recommendation and GVR'd (granted certiorari, vacated the judgment below, and remanded for further consideration) (9) the case to the Second Circuit "for further consideration in light of the position asserted by the Government." (10) This response by the Court was somewhat controversial. Four Justices dissented, expressing concern at the Court's use of a summary vacatur where the Solicitor defended the judgment of the lower court and only criticized its rationale. (11) While Alvarado is one of the clearest examples of the Court's GVR practice in the face of a confession of error only in a lower court's rationale, the Court has frequently followed this practice in the past several decades. (12)

Even though academic commentary on the merits of this "rationale-confession-of-error" practice is sparse, it certainly warrants critical review. The Court has asserted that GVR'ing the Solicitor General's rationale-confession-of-error has a few important benefits. Specifically, GVR'ing helps the Supreme Court control its docket. (13) It also gives both the Supreme Court and lower courts the benefit of fuller consideration of outcome-determinative issues. (14) In that vein, it also allows possible circuit splits to percolate before the Court applies its consideration, (15) And finally, it serves as a tool of equity and fairness to the petitioner. (16)

On the other hand, these benefits are countered by significant problems. GVR'ing without independently reviewing the merits of a rationale-confession-of-error assumes that an actual error has occurred. (17) This assumption essentially places the Solicitor General in a tenth seat on the Supreme Court, which offends separation of powers. (18) Moreover, when the Solicitor General confesses error in a lower court's rationale and asks the Court to GVR, the government may be motivated by litigation strategy rather than the fair and impartial administration of justice. (19) Strategic litigation tactics by the government may, in some circumstances, allow the government to control the development of the law, particularly in criminal law, where confession of error is most prevalent. (20) By granting the Solicitor's request, the Court encourages such abuse.

Finally, GVR'ing rationale-confessions-of-error has a negative impact on the lower courts that must reevaluate the remanded cases. Because of the summary nature of the GVR, lower courts may be confused as to what the Court expects of them. (21) And, although the Court directs the lower court to evaluate the Solicitor General's suggested error, in some instances the government has changed that position again after remand. (22) Therefore, the ultimate determination of such a case is as much in the prosecutor's hands as it is in the court's.

The central claim of this Note is that these problems outweigh the benefits of GVR'ing rationale-confessions-of-error. While controlling the docket, seeking fuller analysis of important issues from the lower court, and pursuing fairness for the litigants are important considerations, allowing the government to engage in manipulative litigation tactics, which, in turn, negatively affect the lower courts, has a much longer and devastating impact on the judicial system. This Note, therefore, analyzes both the benefits and problems with GVR'ing rationale-confessions-of-error, and proposes a solution to the imbalance.

Part I describes the background of the Solicitor General's confession-of-error practice, focusing on the various types of rationale-confession-of-error that have cropped up in the past two decades, and details the history of the Supreme Court's controversial response. Part II weighs the benefits and the problems with GVR'ing rationale-confessions-of-error described above. And Part III suggests a practical solution to the controversy: denying certiorari in all rationale-confession-of-error cases unless the Solicitor General can identify a controlling error of law. But, because this blanket rule may be unproductive in some cases, Part III further suggests an exception where (1) the petitioner claims that a constitutional right or standard was violated or ignored in a prior proceeding, or by some other government actor such as a police officer, (2) the lower court did not fully address or answer that claim, and (3) it is reasonably probable that the legal standard that the lower court did not consider, or ignored, would change the case's outcome. Only in these instances would a GVR in light of a rationale-confession-of-error be proper.

1. BACKGROUND ON THE SOLICITOR GENERAL'S CONFESSION OF ERROR AND THE SUPREME COURT'S RESPONSE

   1. Definition, Foundation, and Practice

      Attorneys for the federal government are charged with ensuring "fair and impartial administration of justice for all Americans." (23) Unlike private litigants, they are not to win cases at any cost. Instead, government attorneys must pursue the public interest in exercising their duties. (24) Under this obligation, the Solicitor General has developed the practice of confessing error: informing the Court that an error occurred in a proceeding below, which prejudiced the petitioner's case, despite a favorable outcome for the government. (25)

      The Solicitor General's confession of error practice stands on two foundational pillars. First, the Solicitor General enjoys unique independence within the executive branch, and has broad autonomy in determining the government's position on cases coming before the Court. (26) Such independence is commonly understood as crucial to the relationship between the Supreme Court and the Solicitor General. The Court trusts that the Solicitor General will not make arguments that are overly influenced by the political leanings of the executive. (27) Similarly, the Attorney General trusts that the Solicitor will represent the government beneficially before the Court. (28) Thus, when the Solicitor General confesses error, both the Attorney General and the Court trust that the confession is well thought out and supportable. The Court has greater reason to trust the Solicitor General in confessions of error, however, because in confessing error the Solicitor is generally "arguing against [the government's] own interests." (29) Independence and autonomy from the executive, as well as the Court's trust, allow the Solicitor General to admit the shortcomings of a lower court's decision, even though the government was the prevailing party in that lower court's decision. (30)

      Second, the practice of confessing error springs from the Solicitor General's function as a filter for the Court. (31) Because the Solicitor General participates in a large percentage of cases that come before the Court, he has a unique ability to advise the Court on which cases warrant plenary review and which do not. One prominent commentator stated that "[a] principal chore of the Solicitor's office is to help the Supreme Court set its docket by screening petitions for writs of certiorari." (32) By conceding to the Court that a judgment or an analysis in its favor below is erroneous, instead of zealously pushing for the government's interests at all costs, the Solicitor General helps the Court summarily dispose of those cases and focus its time and energy on cases which are more deserving of its review. (33) Therefore, where the Solicitor General believes that a ruling below in the government's favor is wrong, he serves as a filter for the Court and validates the Court's trust in him by confessing error.

      Confessions of error are made for a variety of reasons. The Solicitor General may believe that a lower court made a legal, factual, or procedural error in its ruling. (34) A government attorney at trial or on appeal may have violated a discretionary Department of Justice policy which, if followed, would have barred prosecution. (35) Finally, as shown in Alvarado, the Solicitor General may believe that a lower court's analysis of a case is erroneous without saying that the judgment is wrong. This last form of confession of error has been used with greater frequency in recent years, (36) including two cases decided during the October 2009 Term. (37) In this...