THE REMAND POWER AND THE SUPREME COURT'S ROLE.

• Author: Bruhl, Aaron-Andrew P.

INTRODUCTION 173 I. THE IMPORTANCE AND APPEAL OF REMANDS 178 A. Systemic Role of Remands 178 B. Remands' Attractions for Olympian, Agenda-Setting Courts 180 1. Remands That Aid the Making and Shepherding of the Law 181 2. Remands That Ease the Tasks of Error Correction and Supervision 183 C. Remands in the Courts of Appeals 184 II. THE LAW AND HISTORY OF REMANDS 185 A. Section 2106 and Its Predecessors 186 1. The Rigidity of Appellate Dispositions at Common Law 187 2. Federal Appellate Remedies from the Judiciary Act to [section] 2106 191 B. Article III and the Limits of "Appellate Jurisdiction" 196 1. The Framing of Appellate Jurisdiction 198 2. The Expansive Meaning of Appellate Jurisdiction in Early Interpretations and Practice 200 C. Structural Constitutional Analysis 204 D. Judgments and Opinions 206 E. Dignity and Fault 207 F. External Limits on Appellate Dispositions 209 G. The Supervisory Power as an Additional Source of Authority 210 1. Supervisory Power as a Power to Impose Rules for Fashioning Opinions 211 2. Supervisory Writs as an Alternative to Remands After Judgment 212 H. The Remand of Horribles 215 III. APPLICATION OF LECAL CONSTRAINTS AND PRUDENTIAL Guidelines to Particular Categories of Remands 216 A. Remands That Have Properly Escaped Criticism 217 1. Remands for Application of the Correct Standard or for Consideration of Unreached Alternative Grounds 217 2. Intervening Events: The Ordinary GVR 219 3. Remand for Clarification of Jurisdiction or Otherwise to Permit Meaningful Review 220 4. Remand for Entry of a New Judgment to Reset the Time to Appeal 223 B. justice-Ensuring Remands: Two Categories That Are Controversial But Should Not Be 224 1. Remands Where the Lower Court May Have Overlooked a Dispositive Issue 225 2. Remands in Light of Confessions of Error 230 C. Law-Shepherding Remands: Categories That Do Raise Hard Questions 233 1. Remanding for Resequencing 234 a. When There Is a Legally Required or Preferred Sequence 234 b. When a Different Ground of Decision Is Attractive for Other Reasons 236 2. Remanding to Determine Cert-worthiness 240 3. Remands That Do Not State the Proper Standard. 240 4. Face-Saving (or Institution-Preserving) Remands 243 D. Summary: The Remand Power and the Court's Role 245 CONCLUSION 246 INTRODUCTION

When an appellate court reverses a decision of a lower court, the question of the proper appellate remedy then arises. Sometimes the appellate court puts an end to the case by entering the appropriate judgment itself or by telling the lower court how to dispose of the case. (1) More commonly, though, at least in modern federal practice, the appellate court will remand the case--that is, send it back to the lower court--in a more open-ended way, for whatever further proceedings the lower court deems proper. (2) In what is perhaps the most famous remand in the Supreme Court's history, the Court's remedial decision in Brown v. Board of Education did not decree the immediate desegregation of public schools but instead remanded to the lower courts for them to apply Brown's principle in light of varied local conditions so as to bring about desegregation "with all deliberate speed." (3)

Whether to remand at all, and how much instruction to give the lower court, obviously can affect the resolution of the specific dispute at hand, and some remedial decisions, like the one in Brown, have serious social consequences. But practices regarding appellate remedies also have systemic effects on the operation, and ultimately the character, of the whole judiciary. Remands distribute judicial work and delegate the authority and responsibility to apply the law. A general practice of open-ended remands allows an appellate court to focus on pure questions of law rather than the messy details of law application and case resolution. The modern Supreme Court's heavy reliance on remands both reveals and facilitates its self-conception as a law-declaring court.

The Supreme Court's power to remand cases is confirmed by a federal statute of extraordinary breadth. It authorizes federal appellate courts to affirm, reverse, vacate, or modify a judgment or to remand for further proceedings with no apparent limitation except that the chosen remedy "be just under the circumstances." (4) Using this authority, the Court remands in a wide range of circumstances. Most of these remands are uncontroversial, for they simply require the lower court to do the work of applying newly clarified law to the case at hand, but certain types of remands have attracted criticism on the grounds that they overstep the proper appellate role. (5) The remands that attract criticism tend to involve cases in which the Court vacates and remands without identifying error in the ultimate judgment under review or, sometimes, even identifying a material error in the reasoning of the decision under review. More specifically, the controversial remands can be organized into two categories, which we could call law-shepherding remands and justice-ensuring remands. As we will see, the two categories are quite different and are subject to criticism and defense on different grounds.

An example of a law-shepherding remand is a case in which the Supreme Court requires the lower court to reach a different ground of decision--to decide the case on the basis of one issue instead of another--in circumstances in which there is no mandatory sequence of decision and without finding the lower court's initial ground to be incorrect. (6) A striking example of such a remand for resequencing is Beer v. United States, the lawsuit brought by federal judges complaining that Congress's failure to grant cost-of-living increases amounted to a cut in pay in violation of Article Ill's Compensation Clause. (7) The U.S. Court of Appeals for the Federal Circuit turned away the judges' suit based on circuit precedent that had previously rejected the same argument. (8) The Supreme Court then summarily vacated and remanded for the Federal Circuit to consider an alternative ground for dismissing the case, namely that the judges' lawsuit was barred by issue preclusion based on their participation in prior litigation. (9) "The Court considers it important that there be a decision on the [preclusion] question," the terse order read, "rather than that an answer be deemed unnecessary in light of [the Federal Circuit's] prior precedent on the [constitutional] merits." (10) Justice Scalia dissented based on his view that the Court "[has] 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." (11)

A few things are clear about Beer, but other aspects of the case are obscure. Clearly the Supreme Court had jurisdiction. It could have addressed preclusion, as the issue had been pressed by the government in the lower court. It is also clear that the Court's decision did not conclude that the Federal Circuit's ruling on the Compensation Clause was wrong on the merits. And, though this is perhaps a bit less certain, the Federal Circuit did not err by relying on circuit precedent rather than addressing preclusion, a nonjurisdictional issue. (12) One thing that is obscure, by contrast, is the Court's reasoning, as the order was only a few sentences long and cited no authorities. Also unclear is the Court's motive for the remand, though it looks like the Court hoped to delay and perhaps avert a clash with Congress over judicial salaries.

As Beer reveals, law-shepherding remands are hard to classify into familiar (if troubled) categories of activism and restraint. The decision in Beer-was not activist in the sense of unduly reaching or hastening the resolution of weighty questions. But it was not passive either, at least not in the sense of taking the cases as they come. Instead, and as it does with other procedural tools and doctrines at its disposal, (13) the Court is using remands to maximize its control over the timing and circumstances of the judiciary's exercise of its law-declaring function. That is the sense in which the remand in Beer, and other cases like it, shepherd the development of the law.

Justice-ensuring remands are different, though they too have attracted some criticism. These remands typically do not involve weighty questions of law but rather involve the suspicion that an injustice has occurred--but the Court asks the lower court to take another look rather than sorting out what happened itself. A recurring type of justice-seeking remand involves what we could call the "potentially overlooked argument." These are cases in which the Court suspects that the lower court overlooked a point that had the potential to change the result, but in which the Court does not decide whether the point really was overlooked, whether the potentially overlooked point actually is meritorious, or whether it would change the ultimate outcome if meritorious. (14) Another genre of the justice-ensuring remand stems from the Court's practice, typically in federal criminal prosecutions, of remanding for further consideration when the government concedes error in some aspect of a lower-court decision upholding a conviction but does not concede the ultimate invalidity of the conviction. (15)

Several Justices have campaigned to put an end to law-shepherding remands and, even more consistently, to justice-ensuring remands. These Justices--who are mostly found among the Court's conservatives--question the wisdom of the Court's actions and sometimes deny that the Court even has the power to vacate and remand in circumstances like those above. (16) The remand skeptics' arguments rely primarily on the contention that the Supreme Court's exercise of appellate jurisdiction under Article III of the U.S. Constitution and the governing statutes is constrained by historical understandings of appellate action, which, the skeptics believe, limit the Court's...