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Article Excerpt
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, identifying the number of GVRs by category for each year and providing other measures as well. For purposes of comparison, it also includes data on the GVR practice from the late 1970s. The analysis reveals a contemporary GVR practice that is large, less varied (in terms of categories of GVRs) than in the past, and increasingly dominated by blockbuster cases that generate scores or even hundreds of GVRs. Part I also provides greater detail on certain categories of GVRs that are sometimes considered controversial, including those (like Youngblood) that are triggered by preexisting precedents and those that are triggered by changes in the parties' litigation positions (most prominently, confessions of error by the Solicitor General or the state equivalent). The findings suggest, among other things, that while Youngblood is an extreme case, GVRs in light of precedents that were already on the books at the time of the decision below are not especially uncommon. More generally, the analysis shows that when we are confronted with what seems like a novel GVR, it might look less foreign once we appreciate that the GVR practice was not always as uniform as it is today.
Armed with this information on the Court's GVR practice, Part II then takes a more critical view. Although the GVR looks like the best way for the Supreme Court to implement the principle that changes in law should be applied to pending litigation, the case in favor of the GVR errs in assuming that the Supreme Court is the proper institution to be charged with the often substantial task of overseeing changes in law. The GVR practice developed accidentally, in the sense that it grew gradually and incrementally against a background of particular institutional circumstances that existed at the time; no one deliberately decided that the GVR practice in its current form was the best way to deal with the general problem of changed law. Indeed, the current practice is in some regards quite irrational from the point of view of the values that should underlie a sensible multi-tiered judicial system. I therefore put forward an alternative regime under which parts of the current GVR practice would be replaced with new procedures that shift more responsibility to lower courts, such as by extending the period to seek panel rehearing in certain categories of cases. Rather than requiring litigants first to make a trip to the Supreme Court, this alternative directs litigants to seek reconsideration directly from the courts of appeals.
The Article concludes with a discussion of whether the reform should now be implemented.
I. AN EMPIRICAL OVERVIEW OF THE COURT'S GVR PRACTICE
Because our ability to critically examine the contemporary GVR practice, and even to fully understand it, is seriously hampered by a lack of information, this Part tries to fill some of the gaps in our knowledge. After describing my methodology, I provide an overview of the contemporary GVR practice and how it differs from the GVR practice of thirty years ago. This Part concludes by presenting additional data on certain categories of GVRs that commentators or members of the Court have sometimes considered problematic despite the overall GVR practice's widespread acceptance.
A. Definition and Method
There is a threshold definitional issue as to how capacious the term "GVR" might be. Everyone would include the formulaic orders that remand for reconsideration in light of a recent Supreme Court case. But as one moves beyond that undisputed core of the concept, there is some room for disagreement. For purposes of this analysis, I understand a GVR to be a summary disposition that, without purporting to find any error, returns the case to the court below for further consideration in light of some matter. Perhaps the best way to elaborate on that definition is to explain what it includes and excludes. To begin with, I include only dispositions at the petition stage (or, for appellate docket cases, the jurisdictional-statement stage (17)); excluded are those very rare cases in which the Court, having previously set the case for plenary consideration, then vacates and remands in light of an event that occurred after the grant of certiorari or after oral argument. (18) Also excluded are dispositions that would commonly be described as summary reversals even though, for what might loosely be called technical reasons, the Court actually vacated rather than outright reversed. (19) The vast majority of GVRs are but a few boilerplate lines, but I also include nonformulaic GVRs that are accompanied by a short explanatory per curiam opinion (often in response to a dissent). As a further illustration of my criteria, I would include cases in which the Court GVRs for consideration of whether a case has become moot but would exclude--for want of the reconsideration feature--cases in which the Court determines the case actually is moot, vacates the decision below, and remands with instructions to dismiss the case. (20)
The tables below categorize GVRs by their cause, that is, the event in light of which the lower court should reconsider its prior decision: a Supreme Court ruling, a new state statute, and so on. I note here one category that has a rather different character from others but is nonetheless traditionally considered a GVR. I refer to those situations in which the Court remands a state court decision for clarification of whether the decision relies on federal or state law. To speak very broadly, the Court has jurisdiction to review state court decisions that are based on federal law but lacks jurisdiction to review decisions that rest on state-law grounds. (21) Thus, it will often be important to determine the actual basis of an ambiguous state court decision. Although in the past the Court might GVR in such circumstances in order to obtain a clarified decision from the state court, such elucidatory GVRs have virtually disappeared from contemporary practice, because the Court now follows a rule under which there is presumed to be jurisdiction when a state court mixes together state and federal grounds for decision. (22) My criteria include these GVRs, though one has to go back a number of years to find any. (23)
The method for locating GVRs combined electronic and paper sources: I began with searches of the Lexis electronic database using terms that should appear in any GVR (such as "vacate(d)" and "remand(ed)" in proximity). (24) I ran additional targeted searches as well (such as "GVR") and also conducted searches aimed at terms likely to appear in certain categories of GVRs (for example, "Krivda," a case that was often cited in elucidatory GVRs (25)). The lists of results, which included many false positives, were then examined, and GVRs were identified according to the definitional criteria discussed above. To further ensure completeness of the database results, I examined the back of each relevant volume of the U.S. Reports, where the Court's orders lists are published. (26) I am reasonably confident that I have identified all GVRs, though I cannot rule out the possibility of having missed a few. Finally, I note that when two or more petitions arising from the same lower court case were GVR'd in one consolidated order, that was counted as one GVR. (27)
The GVR lists and data that are summarized in this Article are on file with the Michigan Law Review and are available from the author.
B. The GVR Practice over the Past Decade
Table 1 presents data on the Supreme Court's GVR practice, broken down by category, over roughly the past decade. The "nonstandard" GVRs to which the table refers are those caused by something other than a Supreme Court case (such as a new federal statute, a confession of error, etc.). The data begin with October Term ("OT") 1996, which we might with some justification regard as the beginning of the Court's current phase of GVR practice. (28) Because certain Supreme Court cases trigger many GVRs, for some years I separately report the contribution of especially prolific cases (those generating 50+ GVRs) rather than just providing a total figure. (Further discussion of leading GVR-triggering cases will be provided below.) Except where otherwise noted, the analysis does not include a thorough examination of the huge number of GVRs stemming from the recent sentencing decisions United States t: Booker (29) (nearly 800 GVRs spread over OT 2004-OT 2006) and Cunningham v. California (30) (roughly 200 GVRs in OT 2006); for those cases I provide only an approximate figure. (31)
Two features of the data jump out immediately, one regarding type and the other regarding frequency. First, the GVR practice is dominated by GVRs caused by Supreme Court cases. In the years studied, they represent the large bulk of GVRs, nearly 100% in many years. Nonstandard GVRs (those caused by anything else) are correspondingly rare. In this sense, the Court's recent GVR practice is not very diverse.
A second feature that one notices is that the number of GVRs varies substantially from year to year. This is probably because the majority of the Court's decisions do not lead to any GVRs, while a few major cases generate large totals. This fact is on display most dramatically in the case of United States v. Booker. Booker held that the federal sentencing guidelines, if treated as mandatory, can violate a defendant's Sixth Amendment and Due Process rights by allowing the sentence to turn on facts found by a judge rather than a jury. (32) In the remedial portion of the Court's opinion, it held that sentencing courts would henceforth have to treat the Guidelines as merely advisory. (33) Needless to say, Booker had a broad impact across the federal courts--it potentially called into doubt a substantial proportion of their daily business--and so it is not surprising that it would have a substantial impact on the GVR practice as well. (34) It is difficult to imagine a change in the law that could cause more GVRs than Booker did. (35)
If one were trying to describe the nature of blockbuster GVR-creating cases, one would expect them to be cases that upset existing law on questions that routinely arise. Booker of course fits that pattern, as do the runners-up from the years under study, Cunningham v. California (36) (approximately 200 GVRs) and Apprendi v. New Jersey (37) (51 GVRs). Indeed, all are part of the same line of cases that revolutionized the judicial role in criminal sentencing. (Also part of that same line of cases are the 2007 sentencing decisions in Gall v. United States (38) and Kimbrough v. United States; (39) it is too early to fully measure their impact in connection with this study, but both seem likely to surpass Apprendi in terms of GVRs.) Decisions involving certain frequently applied immigration provisions can also generate numerous GVRs: Lopez v. Gonzalez, (40) which concerned whether certain state drug offenses were "aggravated felonies" for purposes of federal immigration law, generated 23 GVRs. I note for the sake of completeness that while the first year of this study, OT 1996, includes only the last few GVRs stemming from Bailey v. United States, (41) that case--which involved a common federal sentencing provision regarding "use" of a firearm--generated a total of 47 GVRs, mostly in OT 1995. All of these decisions were victories by criminal defendants or similarly situated persons against the government on issues that arise in many cases. Because such cases tend to cause particularly disruptive changes in law, (42) it is not surprising that they would also generate numerous GVRs.
After the cases just mentioned, there is a substantial drop off, but several other cases from the years under study generated about a dozen GVRs each:
* Zadvydas v. Davis (time limits on detention of removable aliens), (43)
* Festo Corp. v. Shoketsu Kinzoku Kogyo Kabushiki Co. (patent law doctrine of equivalents), (44)
* Crawford v. Washington (Confrontation Clause limits on introduction of out-of-court testimonial evidence), (45)
* Davis v. Washington (application of Crawford to 911 calls and victims" statements to police), (46)
* Artuz v. Bennett (tolling provisions of Antiterrorism and Effective Death Penalty Act), (47)
* State Farm Mutual Automobile Insurance Co. v. Campbell (Due Process limits on punitive damages), (48) and
* Burlington Northern & Santo Fe Railway Co. v. White (standard for retaliation claims under Title VII). (49)
Even if one excludes the Booker and Cunningham years as aberrations, one still sees a great deal of fluctuation from year to year. Indeed, even if one additionally excludes OT 2000, with its dozens of Apprendi GVRs, and looks just at the "typical" years that lack a major GVR-causing case, the difference between 40 GVRs and 60 GVRs per term is still quite substantial. Certainly one does not see that much volatility in the Court's plenary docket, which changes much less from one term to the next. (50) Further, at some...
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