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.