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SRMEOPR

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"GVR" is an abbreviation used by U.S. Supreme Court watchers for a particular kind of order. The high court grants the petition for certiorari (asking it to take the case) but it does not decide the underlying question. Instead it vacates the judgment and remands the case to the lower court to reconsider in light of some intervening development. A prime example is today's order in Department of Defense v. ACLU, where Congress changed the law after the Second Circuit's decision. The legal landscape is now different, so the high court sends it back to USCA2 to decide the new question.

Sometimes, though, the new development does not actually postdate the lower court's opinion, but is merely recent and perhaps not clearly understood. In that case, the lower court should ask for supplemental briefing or the parties should ask the court to allow such briefing. If the lower court instead just went ahead and decided, what does the Supreme Court do? Well, in Webster v. Cooper today, the Court "GVR'd."

Justice Scalia dissents.

In my view we have 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. The GVR for consideration of a day's old Supreme Court case is already a technical violation of sound practice and should not be extended further. Since we review judgments rather than opinions, a lower court's failure to discuss a pre-existing factor it should have discussed is no basis for reversal. Once we disregard the logic (and the attendant limits) of "intervening-factor" GVRs, they metastasize into today's monster. We should at least give it a new and honest name--not GVR, but perhaps SRMEOPR: Summary Remand for a More Extensive Opinion than Petitioner Requested. If the acronym is ugly, so is the monster.

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News Scan from Crime and Consequences Blog on November 30, 2009 1:26 PM

Supreme Court News:  The Wall Street Journal reports that today the Supreme Court threw out an order by the 2nd District Court of Appeals to disclose the photographs of abused detainees.  The Court cited a recent change in federal law... Read More

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"In that case, the lower court should ask for supplemental briefing or the parties should ask the court to allow such briefing. If the lower court instead just went ahead and decided, what does the Supreme Court do?"

I agree that it would be nice for the lower court to ask sua sponte for supplemental briefings, but I am not sure that the lower court "should" do anything. The bottom line, IMHO, is that the attorneys should be up on what courts are doing and should be the ones driving the process of how their cases are presented to courts. Additionally, the Jimenez arguments were there to be made before Jimenez ever came out. Thus, the state should be free to argue waiver even though Jimenez was not decided when the appeal was filed (or briefed, for that matter).

I think the Court's practice, however, represents a concession to reality. First off, the Supreme Court itself isn't going to instigate and police satellite appellate litigation about the scope of a waiver etc., and it would have to do that if it were to adhere to Scalia's "no-power-to-overturn-judgments position. Second, I think, institutionally, SCOTUS cannot be in the position of routinely denying litigants the benefit of its cases. I think there is significant appeal (though I don't share the view) to the idea that lawyers in the workaday world (and habeas appeals are clearly in the workaday world) shouldn't have to anticipate, on pain of waiver, new SCOTUS law. Finally, there really does appear to be little harm, as a practical matter. The universe of SCOTUS cases is small, and GVRs don't impact a large percentage of cases.

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