The Supreme Court's controversial GVRS - and an alternative.

• Author: Bruhl, Aaron-Andrew P.
• Position: Grant, vacate and remand

This Article addresses a relatively neglected portion of the Supreme Court's docket: the "GVR"--that is, the Court's procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year.

This Article has two parts, one descriptive and one cautiously prescriptive. First, because we currently lack systematic data on GVRs, the Article begins by collecting and analyzing over a decade of data, with additional data on certain categories of GVRs that are sometimes considered controversial. Second, the Article uses the data to critically' examine the GVR device. As we learn more about GVRs, we might come to regard the entire practice--not just a few particular subcategories--as more problematic than previously recognized. This realization might lead us to consider whether there is a different approach that would better serve the interests of litigants, the Supreme Court, and the judicial system as a whole. Accordingly, the Article proposes an alternative to the current GVR practice that attempts to preserve the attractive features of the current practice while reducing the Court's role in overseeing the implementation of changes in law.

TABLE OF CONTENTS INTRODUCTION I. AN EMPIRICAL OVERVIEW OF THE COURT'S GVR PRACTICE A. Definition and Method B. The GVR Practice over the Past Decade C. Comparison to Late-1970s GVR Practice D. Controversial Categories 1. Antecedent-Event GVRs 2. Confession-of-Error GVRs II. REEXAMINING THE GVR FROM AN INSTITUTIONAL PERSPECTIVE A. Questioning the Too-Easy Case for the GVR B. A Better Way? Reforming the GVR Practice in Part 1. Post-Decision Petitions 2. Pre-Grant Petitions 3. Post-Grant Petitions 4. Special Cases CONCLUSION: WEIGHING THE ALTERNATIVES INTRODUCTION

This Article addresses the Supreme Court's "GVR" practice--the procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The GVR is most commonly used when the ruling below might be affected by one of the Court's recently rendered decisions, which was issued after the lower court ruled. Less frequently, the Court will issue a GVR in light of some other new development, such as the enactment of a new statute or the Solicitor General's concession that the lower court erred. (1) In issuing a GVR, the Court does not determine that the intervening event necessarily changes the outcome in the case, just that it might. (2) Thus, the purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of intervening developments and, if necessary, to revise its decision accordingly. The Court's GVR orders are usually only a couple of lines long, (3) and it may issue scores of them--or, in recent years, even hundreds--every year. Yet despite the large number of GVRs issued, the practice has attracted relatively little scrutiny. Over the course of several decades, GVRs have become an accepted and largely uncontroversial part of the Court's business. (4)

Notwithstanding its humble appearance, the GVR responds to a fundamental problem in the administration of justice: how should the judicial system respond when the law changes during the course of the proceedings? (5) Every lawsuit is marked by several important dates: the filing of the suit, the trial court's judgment, the appellate court's decision, the issuance of the appellate court's mandate, the expiration of the period for seeking certiorari, and so forth. The law may change between any of these dates. We can certainly imagine a legal system in which the applicable law was fixed as of, say, the date the complaint is filed. Every court in such a system would apply the law as it stood on that date, ignoring any subsequent changes in the law. That is a conceivable system, but it is not ours. Generally speaking, in our system courts take changes of law into account when they rule. (6) Thus, a federal court of appeals will decide an appeal using new principles of law that postdate the district court's judgment--or return the case to the district court to do so--rather than simply deciding whether the district court correctly applied the former law then available to it. (7)

The GVR shows that our system will let litigants seek the benefit of changes in law that occur even after final action by the courts of appeals (or state high courts). And, perhaps more importantly, the GVR practice reflects an institutional choice: namely, that it is the Supreme Court rather than some other court that will take cognizance of these changes. The Supreme Court is given this duty even though the GVR practice seems to represent, at best, a species of mere error correction, which virtually everyone agrees is not the Court's primary function. (8) (In truth, the GVR practice involves merely preliminary error screening--arguably even less worthwhile for the Court.)

This is an opportune moment to think more deeply about GVRs. First, the last several years have seen an unprecedented, massive surge in GVRs, due largely to the need to implement a line of criminal-sentencing decisions that together represent a revolution in the law. (9) That over one thousand GVRs have so far been occasioned by the sentencing decisions should prompt us to consider the GVR's merits and demerits from the perspective of the judicial system as a whole.

A second reason for examining the GVR is the recent decision in Youngblood v. West Virginia, which raised the profile of the GVR practice even though Youngblood was, if truly a GVR at all, a very unconventional one. (10) As already stated, the usual reason for issuing a GVR is to allow the lower court the initial opportunity to consider an intervening development. In Youngblood, the Court provided a short per curiam opinion (itself unusual for a GVR) explaining that the reason for the remand was to allow the court below to address the defendant's facially plausible claim, adequately presented to the lower court yet not discussed in its opinion, that prosecutors had withheld evidence in violation of Brady v. Maryland (11)--a case decided over forty years ago. Thus, if the lower court's decision in Youngblood was doubtful, it was not because of any intervening event as in the typical GVR. Yet while the Supreme Court was moved enough to take some action (rather than simply denying certiorari, as it does for countless incorrect decisions), it was not moved enough to grant plenary review or even to issue a summary reversal. Instead it GVR'd because "[i]f this Court is to reach the merits of this case, it would be better to have the benefit of the views of the full Supreme Court of Appeals of West Virginia on the Brady issue." (12)

Further raising the profile of this already unusual GVR, three Justices dissented. (13) Justice Scalia, particularly perturbed with his colleagues, deemed Youngblood an unjustifiable expansion of existing GVR practice. As he pointed out, the Supreme Court can grant certiorari and conduct a full review of a properly presented issue whether or not it was discussed in the opinion below. (14) There was, he recognized, one advantage in having the West Virginia high court revisit the matter: "If the majority suspects that the court below erred, there is a chance that the GVR-in-light-of-nothing will induce [the West Virginia court] to change its mind on remand, sparing us the trouble of correcting the suspected error." (15) In other words, according to Scalia, the GVR was a subtle (or not so subtle) hint that the court below might wish to try again, else the Supreme Court might be roused to actually reverse. Whether Youngblood was a veiled threat or merely an invitation to write a more thorough opinion, in either case it may portend a greater willingness to employ the GVR outside of its most familiar bounds.

Although these recent developments provide good reason to examine the GVR process more carefully, anyone who tries to engage in such reflection quickly realizes that there are serious gaps in our knowledge. Even basic descriptive data are scarce; we do not know how many GVRs, and of what categories, the Court has been issuing. (16) In the absence of that information, discussion or criticism of the GVR practice risks becoming unmoored from reality--unable to distinguish what is unprecedented from what is routine, ignorant of the character of the procedure at issue. This Article fills some of the gaps in our knowledge by collecting, analyzing, and presenting data on the Court's GVR practice. Given the paucity of information on the GVR practice, I believe that gathering the data is worthwhile in itself, and my hope is that the data will facilitate future scholarship.

The data also have some normative and policy implications. It may be that run-of-the-mill GVRs are regarded as unproblematic only because we know so little about them. If observers knew that the Court issued some 800 GVRs several years ago, roughly 250 GVRs in the 2006 Term, and about 200 GVRs in the 2007 Term, they might not regard the practice as so uncontroversial. Each GVR represents a decision to devote a slice of the Court's limited capacity to attempting to do justice in an individual case rather than to clarifying and unifying federal law. In this sense, all GVRs are controversial GVRs. This realization might lead us to consider whether there is a better way.

The analysis proceeds as follows. Part I provides an overview of the Court's GVR practice. It first provides data on approximately the last decade of GVRs...