OCTOBER TERM, 1995
Syllabus
LAWRENCE, GUARDIAN AND NEXT FRIEND ON BEHALF OF LAWRENCE, A
MINOR
V.
CHATER, COMMISSIONER OF SOCIAL SECURITY
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FOURTH CIRCUIT
No. 94-9323. Decided January 8, 1996
Petitioner Lawrence asserts an entitlement to Social Security
benefits as the dependent unmarried minor child of a deceased
insured individual. The Social Security Act (Act) requires that
paternity be decided by state law. Lawrence acknowledges that the
relevant North Carolina law appears to defeat her claim, but argues
that its proof of paternity requirements are unconstitutional. The
Fourth Circuit upheld the denial of her benefits, accepting the
Government's argument that a state paternity law's
constitutionality need not be considered before applying it to
determine entitlement to Social Security benefits. Since Lawrence
filed this certiorari petition, the Social Security Administration
(SSA) has reexamined its position and concluded that the Act does
require a determination whether a state intestacy statute is
constitutional. Thus, the Solicitor General has invited the Court
to grant certiorari, vacate the judgment below, and remand the case
(GVR) for the Fourth Circuit to decide the case, or remand it to
the Commissioner for reconsideration, in light of the new
interpretation.
Held:
1. Insofar as Congress, through 28 U. S. C. § 2106, appears to
have conferred upon this Court a broad power to GVR, the Court has
the power to remand to a lower federal court any case raising a
federal issue which is properly before it in its appellate
capacity. Over the past 50 years the GVR has become an integral
part of this Court's practice. It has the virtues of conserving the
Court's scarce resources, assisting the court below by flagging a
particular issue that it does not appear to have fully considered,
procuring the benefit of the lower court's insight before this
Court rules on the merits, and alleviating the potential for
unequal treatment inherent in this Court's inability to grant
plenary review of all pending cases raising similar issues. Where
intervening developments, or recent developments that the court
below is unlikely to have considered, reveal a reasonable
probability that the decision below rests upon a premise that the
lower court would reject if given
164
Per Curiam
the opportunity, and where it appears that a redetermination may
determine the litigation's ultimate outcome, a GVR is potentially
appropriate. Whether it is ultimately appropriate depends on a
case's equities. All Members of the Court agree that a wide range
of intervening developments may justify a GVR order but that the
GVR power should be used sparingly. Thus, this Court has the power
to issue a GVR order, and such an order is an appropriate exercise
of the Court's discretionary certiorari jurisdiction.
2. Subject to the equities, the SSA's new interpretation of the
Act makes a GVR order appropriate here. There is a reasonable
probability that the Fourth Circuit would conclude that the timing
of the agency's interpretation does not preclude the deference that
it would otherwise receive, and that it may be outcome
determinative in this case. The equities also favor a GVR. That
disposition has the Government's express support. Since the
Government has indicated its intention to apply the new
interpretation to future cases nationwide, giving Lawrence a chance
to benefit from it furthers fairness by treating her like other
future benefits applicants. The general concern that a
postlitigation interpretation may be the product of unfair or
manipulative Government litigation strategies does not deprive
Lawrence of the benefit of a favorable reinterpretation in these
particular circumstances.
Certiorari granted; vacated and remanded.
PER CURIAM.
Under the Social Security Act, the unmarried minor "child" of a
deceased individual who was insured under the Act may receive
survivors' benefits if she was "dependent upon such individual"
prior to his death. 49 Stat. 623, as amended, 42 U. S. C. §
402(d)(1)(C) (1988 ed.). In order to determine whether a claimant
is, for these purposes, the "child" of the deceased, and, as such,
eligible to receive benefits, the Commissioner of Social Security
"shall apply such law as would be applied in determining the
devolution of intestate personal property by the courts of the
State in which [the] insured individual ... was domiciled at the
time of his death." 42 U. S. C. § 416(h)(2)(A) (1988 ed.).
The petitioner in this case, Lawrence, asserts an entitlement to
benefits under these provisions. In so doing, she acknowledges that
the relevant state law, that of North Car-
165
olina, appears on its face to defeat her claim by imposing
procedural requirements on proof of paternity (which it requires as
a prerequisite for intestate succession) that she cannot meet. She
contends, however, that these difficulties can be overcome in her
case as they were in
Handley v.
Schweiker, 697 F.2d
999 (1983). In that case, the Court of Appeals for the Eleventh
Circuit held that state-law requirements of proof of paternity can
only be applied against a claimant for benefits under §
416(h)(2)(A) insofar as they are constitutional, and that an
Alabama law similar to the North Carolina law involved here was
unconstitutional. In contrast, in the case before us, the Court of
Appeals for the Fourth Circuit upheld the Social Security
Administration's Appeals Council's denial of benefits to Lawrence.
The Court of Appeals expressly adopted the rationale for rejecting
her claim that the Government advanced in its brief to that court:
that the constitutionality of a state paternity law need not be
considered before applying it to determine entitlement to benefits
under the federal statutory scheme. Lawrence petitioned for
certiorari to review that decision.
In his response, the Solicitor General advises us that the
"Social Security Administration has re-examined" the role of state
paternity and intestacy laws in the federal benefits scheme, and
now interprets the Social Security Act as "requir[ing] a
determination, at least in some circumstances, of whether the state
intestacy statute is constitutional." Brief for Respondent 8. He
also correctly notes that the Act directs the Commissioner of
Social Security-not, in the first instance, the courts-to "apply
such law as would be applied ... by the courts of the State"
concerned. § 416(h)(2)(A). Without conceding Lawrence's ultimate
entitlement to benefits, he invites us to grant certiorari, vacate
the judgment below, and remand the case (GVR) so that the Court of
Appeals may either decide it in light of the Commissioner's new
statutory interpretation or remand the case to the Commissioner for
reconsideration in light of that interpretation.
166
Per Curiam
We conclude both that we have the power to issue a GVR order,
and that such an order is an appropriate exercise of our
discretionary certiorari jurisdiction.
Title 28 U. S. C. § 2106 appears on its face to confer upon this
Court a broad power to GVR: "The Supreme Court or any other court
of appellate jurisdiction may ... vacate ... any judgment, decree,
or order of a court lawfully brought before it for review, and may
remand the cause and ... require such further proceedings to be had
as may be just under the circumstances." In his dissent issued
today in this case and in
Stutson v.
United States,
post, p. 193, another case in which we issue a GVR order,
JUSTICE SCALIA contends that "traditional practice" and "the
Constitution and laws of the United States" impose "implicit
limitations" on this power.
Post, at 178. We respectfully
disagree. We perceive no textual basis for such limitations. The
Constitution limits our "appellate Jurisdiction" to issues of
"[federal] Law and Fact," see Art. III, § 2, but leaves to Congress
the power to "ordain and establish ... inferior Courts," Art. III,
§ 1, and to make "Exceptions" and "Regulations" limiting and
controlling our appellate jurisdiction. Insofar as Congress appears
to have authorized such action, we believe that this Court has the
power to remand to a lower federal court any case raising a federal
issue that is properly before us in our appellate capacity.
Our past practice affirms this conclusion. Although, as JUSTICE
SCALIA'S dissent explains,
post, at 179-183, the
exercise of our GVR power was, until recent times, rare, its
infrequent early use may be explained in large part by the smaller
size of our certiorari docket in earlier times. Regardless of its
earlier history, however, the GVR order has, over the past 50
years, become an integral part of this Court's practice, accepted
and employed by all sitting and recent Justices. We have GVR'd in
light of a wide range of developments, including our own decisions,
see
post, at 180 (SCALIA, J., dissenting), State Supreme
Court decisions, see,
167
e. g., Conner v.
Simler, 367 U. S. 486 (1961), new
federal statutes, see,
e. g., Sioux Tribe of Indians v.
United States, 329 U. S. 685 (1946), administrative
reinterpretations of federal statutes, see,
e. g., Schmidt
v.
Espy, 513 U. S. 801 (1994), new state statutes, see,
e. g., Louisiana v.
Hays, 512 U. S. 1230 (1994),
changed factual circumstances, see,
e. g., NLRB v.
Federal Motor Truck Co., 325 U. S. 838 (1945)
(demilitarization of employees), and confessions of error or other
positions newly taken by the Solicitor General, see,
e. g.,
Wells v.
United States, 511 U. S. 1050 (1994);
Reed v.
United States, 510 U. S. 1188 (1994);
Ramirez v.
United States, 510 U. S. 1103 (1994);
Chappell v.
United States, 494 U. S. 1075 (1990);
Polsky v.
Wetherill, 403 U. S. 916 (1971), and state
attorneys general, see,
e. g., Cuffle v.
Avenenti,
498 U. S. 996 (1990);
Nicholson v.
Boles, 375 U. S. 25 (1963).
This practice has some virtues. In an appropriate case, a GVR
order conserves the scarce resources of this Court that might
otherwise be expended on plenary consideration, assists the court
below by flagging a particular issue that it does not appear to
have fully considered, assists this Court by procuring the benefit
of the lower court's insight before we rule on the merits, and
alleviates the "[p]otential for unequal treatment" that is inherent
in our inability to grant plenary review of all pending cases
raising similar issues, see
United States v.
Johnson,
457 U. S. 537,
556, n. 16 (1982); cf.
Griffith v.
Kentucky, 479 U. S. 314, 323 (1987)
("[W]e fulfill our judicial responsibility by instructing the lower
courts to apply the new rule retroactively to cases not yet
final"). Where intervening developments, or recent developments
that we have reason to believe the court below did not fully
consider, reveal a reasonable probability that the decision below
rests upon a premise that the lower court would reject if given the
opportunity for further consideration, and where it appears that
such a redetermination may determine the ultimate outcome of the
litigation, a GVR order is, we believe, potentially appropriate.
Whether a GVR order is ulti-
168
Per Curiam
mately appropriate depends further on the equities of the case:
If it appears that the intervening development, such as a
confession of error in some, but not all, aspects of the decision
below, is part of an unfair or manipulative litigation strategy, or
if the delay and further cost entailed in a remand are not
justified by the potential benefits of further consideration by the
lower court, a GVR order is inappropriate. This approach is similar
in its flexibility to this Court's longstanding approach to
applications for stays and other summary remedies granted without
determining the merits of the case under the All Writs Act, 28 U.
S. C. § 1651. See,
e. g., Heckler v.
Lopez, 463 U. S. 1328 (1983)
(REHNQUIST, J., in chambers) (staying a District Court order
pending the decision on the merits of the Court of Appeals).
(Naturally, because GVR orders are premised on matters that we have
reason to believe the court below did not fully consider, and
because they require only further consideration, the standard that
we apply in deciding whether to GVR is somewhat more liberal than
the All Writs Act standard, under which relief is granted only upon
a showing that a grant of certiorari and eventual reversal are
probable, see
id., at 1330.) U sed in accordance with this
approach, the GVR order can improve the fairness and accuracy of
judicial outcomes while at the same time serving as a cautious and
deferential alternative to summary reversal in cases whose
precedential significance does not merit our plenary review.
JUSTICE SCALIA'S dissent would confine GVR's to three
categories of cases:
"(1) where an intervening factor has arisen that has a legal
bearing upon the decision, (2) where, in a context not governed by
Michigan v. Long, 463 U. S. 1032 (1983),
clarification of the opinion below is needed to assure our
jurisdiction, and (3) ... where the respondent or appellee
confesses error in the judgment below." Post, at
191-192.
169
While a large proportion of this Court's GVR orders fall within
these categories, we find that, especially as the dissent construes
them, they are too narrow to account for the full extent of our
actual practice. We find two aspects in particular of the dissent's
approach too restrictive. First, the dissent would insist that only
matters that the lower court had no "opportunity" to consider can
be the basis for GVR orders. Second, it would impose special
restrictions as to when the Court may GVR in light of changes of
position by litigants.
JUSTICE SCALIA'S dissent concedes-correctly, we believe-that its
first category-"intervening factor[s]"- must be extended to include
at least Supreme Court decisions rendered so shortly before the
lower court's decision that the lower court had no "opportunity" to
apply them.
Post, at 181. The dissent does not explain,
however, why what the lower court had an "opportunity" to consider
should be decisive, or how its "opportunity" is to be assessed. In
Robinson v.
Story, 469 U. S. 1081 (1984), we GVR'd
for further consideration in light of a Supreme Court decision
rendered almost three months
before the summary affirmance
by the Court of Appeals that was the subject of the petition for
certiorari. Were those three months sufficient "opportunity" for
the court to apprise itself (or be apprised by the parties) of the
new, potentially relevant Supreme Court decision? If
Robinson was properly GVR'd, we have difficulty
understanding the dissent's objection to our GVR order today in
Stutson, where, as in
Robinson, the Court of Appeals
wrote no opinion to show whether or how it considered a precedent
of ours that the District Court had had no opportunity to consider.
In both cases, the Court of Appeals
"might (or might not)
have relied on a standard [nonapplication of the prior Supreme
Court decision] that
might (or might not) be wrong [and]
that
might (or might not) have affected the outcome."
Post, at 185 (SCALIA, J., dissenting). The only pertinent
difference that we can discern between
170
Per Curiam
the two cases is that the recent Supreme Court precedent was
briefed to the Court of Appeals in
Stutson, but we have
never held lower court briefing to bar our review and vacatur where
the lower court's order shows no sign of having applied the
precedents that were briefed. Compare
post, at 185-186
(asserting that "we have no power" to vacate and remand in
Stutson after relevant briefing and a summary order below),
with,
e. g., Netherland v.
Tuggle, 515 U. S. 951
(1995) (per curiam) (vacating Court of Appeals'
summary order staying execution for probable failure to apply a
12year-old Supreme Court precedent that the parties briefed to the
Court of Appeals; this Court itself granted a stay a week later,
applying that precedent, see
Tuggle v.
Netherland,
515 U. S. 1188 (1995)). As the prevalence of summary dispositions
by the Courts of Appeals continues to increase with the burgeoning
federal docket-in 1994, over 11% of Court of Appeals decisions on
the merits,l and many more procedural decisions, were summary-such
cases will, no doubt, arise more frequently. In this context, it is
important that the meaningful exercise of this Court's appellate
powers not be precluded by uncertainty as to what the court below
"might ... have relied on." And we are well aware, as are
Supreme Court practitioners and lower courts, that while not immune
from our plenary review, ambiguous summary dispositions below tend,
by their very nature, to lack the precedential significance that we
generally look for in deciding whether to exercise our discretion
to grant plenary review. We are therefore more ready than the
dissent to issue a GVR order in cases in which recent events have
cast substantial doubt on the correctness of the lower court's
summary disposition.
With regard to confessions of error and other changes of
position by litigants, we agree on several points. All Mem-
1 See Administrative Office of United States Courts, Reports of
Proceedings of Judicial Conference of the United States, 1994,
table S-3 (3,080 out of 27,219 decisions on the merits).
171
bers of the Court are agreed that we "should [not] mechanically
accept any suggestion from the Solicitor General that a decision
rendered in favor of the Government by a United States Court of
Appeals was in error,"
Mariscal v.
United States,
449 U. S. 405,
406 (1981) (REHNQUIST, J., dissenting). And the dissent
acknowledges as "well entrenched,"
post, at 183 (opinion of
SCALIA, J.), our practice of GVR'ing in light of plausible
confessions of error without determining their merits. Moreover,
the dissent is ready in principle to GVR in light of a new agency
interpretation of a statute that is entitled to deference under the
rule of
Chevron U. S.
A. Inc. v.
Natural Resources
Defense Council, Inc., 467 U. S. 837 (1984).
Post, at 186-187.
In other respects, however, our approaches to changes of
position by litigants diverge. JUSTICE SCALIA'S dissent disapproves
(although it acknowledges) this Court's wellestablished practice of
GVR'ing based on confessions of error that do not purport to
concede the whole case.
Post, at 183, 184-185; cf.,
e.
g., Moore v.
United States, 429 U. S. 20 (1976)
(GVR'ing based on the Solicitor General's confession of error,
notwithstanding the Solicitor General's unresolved claim that the
error was harmless). The dissent would apparently insist that such
GVR's be confined to cases in which the confession of error
concerns a "legal point on which the lower court explicitly
relied," or on which we otherwise "know" for certain that the lower
court's judgment rested.
Post, at 185. But, given the
legitimacy of GVR's on the basis of confessions of error without
determining the merits, we do not understand why a reasonable
probability that the lower court relied on the point at issue
should not suffice. As we have explained,
supra, at 167, we
have GVR'd on the basis of a reasonable probability of a change in
result in nonconfession of error cases, see,
e. g., Robinson
v.
Story, supra. We see no special reason why, in a
confession of error case, a
certainty that the lower court
relied on the point in question should be necessary before we may
GVR on the basis of a
172
Per Curiam
reasonable probability that giving the lower court the
opportunity to consider that point anew will alter the result.
Similarly, we reject JUSTICE SCALIA'S dissent's other
requirement of certainty for GVR's founded on a change of position
by the Government. The dissent accepts in principle that a new
interpretation of a statute adopted by the agency charged with
implementing it may be entitled to deference in the context of
litigation to which the Government is a party. But the dissent
would require that before such new interpretation may be the basis
for a GVR order, we must be
"certain that the change in
position is legally cognizable,"
post, at 187 (emphasis
added), in the sense that it is "entitled to deference,"
post, at 188, despite its timing, in that particular case.
This requirement, too, appears to be confined to cases in which the
event on which the GVR is based is a change of position by the
Government, see
post, at 187; we do not, for example,
understand the dissent to contend that a similar requirement of
"lega[l] cognizab[ility]" should apply to GVR's in habeas corpus
cases in which the procedural bar that we recognized in
Teague v.
Lane, 489 U. S. 288 (1989), might apply.
Again, we do not understand the rationale for imposing such special
requirements on GVR's based on a change of position. If it appears
reasonably probable that a confession of error reveals a genuine
and potentially determinative error by the court below, a GVR may
be appropriate; similarly, we believe that if an agency
interpretation is reasonably probably entitled to deference and
potentially determinative, we may GVR in light of it. It is
precisely because of uncertainty that we GVR. We do not see why
uncertainty as to the "lega[l] cognizab[ility]" of an agency
interpretation in a particular case should be treated differently
from uncertainty as to its application in that case. Indeed, to
determine on the merits whether deference is owed to the agency
interpretation, based on a circumstance-i.
e., its timing
with respect to the case at hand-that will not be present in any
other case brought
173
under the statute at issue, when the Court of Appeals has had no
"opportunity" to consider the new agency interpretation, appears to
us to defeat the purpose of GVR'ing. Rather, we think it
appropriate to apply our normal "reasonable probability" test, and
to defer any special concerns about strategic litigating behavior
that are raised by changes in the Government's position to
consideration of the equities. Under our approach, neither
uncertainty as to whether the Government's change of position, if
accepted, would be outcome determinative, nor uncertainty as to the
"lega[l] cognizab[ility]" of an administrative interpretation,
preclude a GVR if the overall probabilities and equities support
the GVR order. Indeed, we issued just such a GVR order last Term,
without recorded dissent. See
Schmidt v.
Espy, 513 U.
S. 801 (1994) (GVR on the basis of the Solicitor General's
representation that "[a]fter further examination of the regulation
and its application in the present case, ... the Department of
Agriculture has determined that petitioners' leaseback/buyback
application should be reconsidered without respect to the good
faith requirement," Brief for Respondent in
Schmidt v.
Espy, O. T. 1994, No. 93-1707, p. 7; see also
id., at
10, n. 5 (maintaining that other obstacles to petitioners'
application might remain)).
Our differences with JUSTICE SCALIA'S dissent should not
overshadow the substantial level of agreement shared by all Members
of this Court. On the one hand, all are agreed that a wide range of
intervening developments, including confessions of error, may
justify a GVR order. On the other hand, all are agreed that our GVR
power should be exercised sparingly. This Court should not just GVR
a case "because it finds the opinion, though arguably correct,
incomplete and unworkmanlike; or because it observes that there has
been a post judgment change in the personnel of the state supreme
court, and wishes to give the new state justices a shot at the
case."
Post, at 189 (SCALIA, J., dissenting); accord,
Alvarado v.
United States, 497 U. S. 543, 545 (1990)
(REHNQUIST,
174
Per Curiam
C. J., dissenting). Respect for lower courts, the public
interest in finality of judgments, and concern about our own
expanding certiorari docket all counsel against undisciplined
GVR'ing. It remains to apply these principles to the facts of this
case.
The feature of this case that, in our view, makes a GVR order
appropriate is the new interpretation of the Social Security Act
that the Solicitor General informs us that the Social Security
Administration, the agency charged with implementing that Act, has
adopted. As JUSTICE SCALIA'S dissent notes,
post, at 187, we
have not settled whether and to what extent deference is due to an
administrative interpreation-its "lega[l] cognizab[ility]"-in a
case that has already reached the appeal or certiorari stage when
that interpretation is adopted. But in our view, see
supra,
at 172-173, such uncertainty does not preclude a GVR. Indeed, it is
precisely because we are uncertain, without undertaking plenary
analysis, of the legal impact of a new development, especially one,
such as the present, which the lower court has had no opportunity
to consider, that we GVR. Here, as in
Schmidt, supra, the
Solicitor General has recommended judicial reconsideration of the
merits, while not conceding the petitioner's ultimate entitlement
to statutory benefits, based on a new statutory interpretation that
will apparently be applied, and will probably be entitled to
deference, in future cases nationwide. Here, as in
Schmidt,
our summary review leads us to the conclusion that there is a
reasonable probability that the Court of Appeals would conclude
that the timing of the agency's interpretation does not preclude
the deference that it would otherwise receive, and that it may be
outcome determinative in this case. A GVR order is, therefore,
appropriate, subject to the equities.
As to the equities, it seems clear that they favor a GVR order
here. That disposition has the Government's express support,
notwithstanding that its purpose is to give the Court of Appeals
the opportunity to consider an administrative interpretation that
appears contrary to the Govern-
175
ment's narrow self-interest. And the Government has informed us
that it intends to apply that interpretation to future cases
nationwide. Giving Lawrence a chance to benefit from it furthers
fairness by treating Lawrence like other future benefits
applicants. We acknowledge the dissent's concern that
postlitigation interpretations may be the product of unfair or
manipulative Government litigating strategies, see
post, at
187, and we therefore view late changes of position by the
Government with some skepticism. That
general concern does
not, however, appear to us to require that we deprive Lawrence of
the benefit of a favorable administrative reinterpretation in these
particular circumstances. We believe, therefore, that the
equities and legal uncertainties of this case together merit a GVR
order.2
Accordingly, the motion for leave to proceed
in forma
pauperis and the petition for a writ of certiorari are granted.
The judgment is vacated and the case is remanded to the United
States Court of Appeals for the Fourth Circuit for further
consideration in light of the position taken in the brief for
respondent filed by the Solicitor General, August 17,1995.
JUSTICE STEVENS, concurring. *
The Court persuasively explains why we have "the power to remand
to a lower federal court any case raising a federal issue that is
properly before us in our appellate capacity."
Ante, at 166.
That conclusion comports with a primary characteristic-and, I
believe, virtue-of our discretionary authority to manage our
certiorari docket: our ability to
2 In a letter filed on October 24, 1995, the Solicitor General
advised this Court of a July 1995 amendment to the North Carolina
paternity statute, N. C. Gen. Stat. §49-14(c). We find it
unnecessary to decide whether this development independently
justifies our GVR order. The Court of Appeals is free to consider
its significance on remand.
*[This opinion applies also to No. 94-8988,
Stutson v.
United States, post, p. 193.]
176
Opinion of REHNQUIST, C. J.
apply the "totality-of-the-circumstances" approach that JUSTICE
SCALIA finds objectionable.
Post, at 191. The Court's wise
disposition of these petitions falls squarely within the best
traditions of its administration of that docket. I therefore join
the Court's opinions.
CHIEF JUSTICE REHNQUIST, concurring in No. 94-9323 and
dissenting in No. 94-8988,
post, p. 193.
I agree, for the reasons given by JUSTICE SCALIA, that the Court
is mistaken in vacating the judgment in No. 94-8988,
Stutson
v.
United States, post, p. 193. I also agree with much of
the rest of JUSTICE SCALIA'S dissent, but I do not agree with that
portion,
post, at 179, dealing with what he describes as
"situations calling forth the special deference owed to state law
and state courts in our system of federalism." Of the three cases
that he cites for this proposition, one,
Missouri ex rel. Wabash
R. Co. v.
Public Servo Comm'n, 273 U. S. 126 (1927),
came to this Court on writ of error and therefore was required to
be decided on the merits. The second,
State Farm Mut. Automobile
Ins. Co. v.
Duel, 324 U. S. 154 (1945), came to us on
appeal from a State Supreme Court, and was thus also required to be
decided on the merits. The third,
Huddleston v.
Dwyer, 322 U.
S. 232 (1944), was a case in which certiorari had already been
granted, and the case argued on the merits. None of them, then,
involved a choice between denying certiorari, on the one hand, and
simply vacating the judgment of the lower court without any
opinion, on the other. Vacating a judgment without explanation when
the alternative is to simply deny certiorari involves at best the
correction of perceived error made by the lower courts. In this
connection, we would do well to bear in mind the admonition of
Chief Justice William Howard Taft, one of the architects of the
Certiorari Act of 1925, as described by his biographer:
"It was vital, he said in opening his drive for the Judges'
bill, that cases before the Court be reduced without lim-
177
iting the function of pronouncing 'the last word on every
important issue under the Constitution and the statutes of the
United States.' A Supreme Court, on the other hand, should not be a
tribunal obligated to weigh justice among contesting parties.
"'They have had all they have a right to claim,' Taft said,
'when they have had two courts in which to have adjudicated their
controversy.'" 2 H. Pringle, The Life and Times of William Howard
Taft 997-998 (1939).
I agree with the decision announced in the
per curiam to
vacate the judgment of the Court of Appeals for the Fourth Circuit
in No. 94-9323,
Lawrence v.
Chater. Whether or not
the change of position by the Social Security Administration is
"cognizable," in the words of JUSTICE SCALIA,
post, at 187,
it is perfectly reasonable to request the Court of Appeals to
answer that question in the first instance.
JUSTICE SCALIA, with whom JUSTICE THOMAS joins, dissenting.
*
I dissent because I believe that the dispositions in both No.
94-8988,
post, p. 193, and No. 94-9323,
ante, p. 163,
are improper extensions of our limited power to vacate without
first finding error below.
It sometimes occurs that, after having considered the lower
court decision and found error, an appellate court merely reverses
or vacates and then remands-that is, it sets the judgment aside and
sends the case back to the lower court for further proceedings,
rather than entering or directing entry of judgment for the
appellant or petitioner. That is the appropriate course whenever
the finding of error does not automatically entitle the appellant
or petitioner to judgment, and the appellate court cannot conduct
(or chooses not to conduct) the further inquiry necessary to
resolve the ques-
*[This opinion applies also to No. 94-8988,
Stutson v.
United States, post, p. 193.]
178
tions remaining in the litigation. Our books are full of such
cases, from
Glass v.
Sloop Betsey, 3 Dall. 6 (1794),
and
Clarke v.
Russel, 3 Dall. 415 (1799), to
Vernonia School Dist. J,,7Jv. Acton, 515 U. S. 646 (1995), and
Tuggle v.
Netherland, ante, p.10.
What is at issue here, however, is a different sort of creature,
which might be called "no-fault V&R": vacation of a judgment
and remand
without any determination of error in the
judgment below. In our discretionary certiorari system of review,
such an order has acquired the acronym "GVR"for the Court
grants certiorari,
vacates the judgment below, and
remands for further proceedings.1 The question presented by
today's cases is whether there is any limitation (other than the
mandate "do what is fair") upon this practice. The Court's
per
curiam opinions answer "no"; I disagree.
Title 28 U. S. C. § 2106 provides that "[t]he Supreme Court or
any other court of appellate jurisdiction may affirm, modify,
vacate, set aside or reverse any judgment, decree, or order of a
court lawfully brought before it for review, and may remand the
cause and direct the entry of such appropriate judgment, decree, or
order, or require such further proceedings to be had as may be just
under the circumstances." This facially unlimited statutory text is
subject to the implicit limitations imposed by traditional practice
and by the nature of the appellate system created by the
Constitution and laws of the United States. The inferior federal
courts (to say nothing of state courts) are not the creatures
1 I emphasize that what is at issue here is our power to set
aside a valid judgment-not, as JUSTICE STEVENS' concurrence would
have it, "our discretionary authority to manage our certiorari
docket."
Ante, at 175. We do the latter by accepting or
declining review. But "[w]henever this Court grants certiorari and
vacates a court of appeals judgment in order to allow that court to
reconsider its decision ... , the Court
is acting on the
merits." Board of Trustees of Keene State College v.
Sweeney, 439 U. S. 24, 25-26 (1978) (STEVENS, J.,
dissenting) (emphasis added). Thus, today's orders go far beyond
what JUSTICE STEVENS now refers to as "administration of [our
certiorari] docket."
Ante, at 176.
179
and agents of this body-as are masters, whose work we may reject
and send back for redoing at our own pleasure. Inferior courts are
separately authorized in the Constitution, see Art. I, § 8; Art.
III, § 1, created by Acts of Congress, see,
e. g.,
Judiciary Act of 1789,1 Stat. 73; Evarts Act, Act of Mar. 3, 1891,
26 Stat. 826, and staffed by judges whose manner of appointment and
tenure of office are the same as our own, see U. S. Const., Art.
II, § 2; Art. III, § 1; 28 U. S. C. §§ 44, 133, 134. Despite the
unqualified language of § 2106, we cannot, for example, "reverse" a
judgment of one of these courts "and direct the entry" of a
different judgment whenever we disagree with what has been done,
but only when we can identify a controlling error of law. And I
think we cannot "vacate" and "remand" in the circumstances
here.
The Court today seeks to portray our no-fault V &R practice
as traditionally covering a kaleidoscopic diversity of situations.
See
Lawrence v.
Chater, ante, at 166-167. That is in
my view a misportrayal; the practice has always been limited to a
few discrete categories of cases. It began, apparently, in
situations calling forth the special deference owed to state law
and state courts in our system of federalism. In
Missouri ex
rel. Wabash R. Co. v.
Public Servo Comm'n, 273 U. S. 126 (1927), for
example, rather than find error on the basis of the federal
constitutional claims raised, this Court set aside the judgment of
the Missouri Supreme Court and remanded the case to that court for
further proceedings so that it could consider the meaning and
effect of a state statute that had been enacted after its judgment
had been entered. We reasoned that "[w]hile this Court may decide
these [state-law] questions, it is not obliged to do so, and in
view of their nature, we deem it appropriate to refer the
determination to the state court."
Id., at 131. In other
words, we left it to the state court to decide the effect of the
intervening event, rather than follow our usual practice of
deciding that question for ourselves, see,
e. g., Steamship
Co. v.
Joliffe, 2 Wall. 450, 456-458 (1865). See
generally
United
180
States v.
Schooner Peggy, 1 Cranch 103, 110 (1801)
("If, subsequent to the judgment [entered by a lower court], and
before the decision of the appellate court, a law intervenes and
positively changes the rule which governs, the law must be obeyed,
or its obligation denied."). Later cases took the same deferential
approach to state courts when the intervening event consisted of
one of our own opinions. See,
e. g., State Tax
Comm'n v.
Van Cott, 306 U. S. 511 (1939). By
1945, we could state that it was "[a] customary procedure" for the
Court "to vacate the judgment of [a] state court where there has
been a supervening event since its rendition which alters the basis
upon which the judgment rests, and to remand the case so that the
court from which it came might reconsider the question in light of
the changed circumstances."
State Farm Mut. Automobile Ins.
Co. v.
Duel, 324 U. S. 154, 161 (1945). Similarly, where
a federal court of appeals' decision on a point of state law had
been cast in doubt by an intervening state supreme court decision,
it became our practice to vacate and remand so that the question
could be decided by judges "familiar with the intricacies and
trends of local law and practice."
Huddleston v.
Dwyer,
322 U. S. 232, 237 (1944).
The "intervening event" branch of our no-fault V &R practice
has been extended to the seemingly analogous situation (though
not one implicating the special needs of federalism) in
which an intervening event (ordinarily a post judgment decision of
this Court) has cast doubt on the judgment rendered by a lower
federal court or a state court concerning a
federal
question. See,
e. g., Amer v.
Superior Court of Cal.,
County of Los Angeles, 334 U. S. 813 (1948);
Goldbaum v.
United States, 348 U. S. 905 (1955);
Henry v.
City
of Rock Hill, 376
U. S. 776 (1964). This is undoubtedly the largest category of
"GVRs" that now exists. See,
e. g., Exxon Corp. v.
Youell, post, p. 801;
Kapoor v.
United States,
post, p. 801;
Edmond v.
United States, post, p.
802;
Pacesetter Constr. Co. v.
Carpenters 46
Northern Cal. Ctys. Conference Bd., post, p. 802;
Doctor's Associates, Inc. v.
Casarotto, 515 U. S.
1129
181
(1995); Calamia v.
Singletary, 514 U. S. 1124
(1995). We regularly hold cases that involve the same issue as a
case on which certiorari has been granted and plenary review is
being conducted
in order that (if appropriate) they may be
"GVR'd" when the case is decided. More recently, we have indulged
in the practice of vacating and remanding in light of a decision of
ours that
preceded the judgment in question, but by so
little time that the lower court might have been unaware of it.
See,
e. g., Grier v.
United States, 419 U. S. 989
(1974). These applications of no-fault V&R have nothing to do
with federalism, but they are appropriate to preserve the
operational premise of a multitiered judicial system (viz., that
lower courts will have the first opportunity to apply the governing
law to the facts) and to avoid the unseemliness of holding
judgments to be in error on the basis of law that did not exist
when the judgments were rendered below. They thus serve the
interests of efficiency and of concern for the dignity of state and
lower federal tribunals.
An entirely separate branch of our no-fault V &R
jurisprudence, but again one that originates in the special needs
of federalism, pertains to decisions of state supreme courts that
are ambiguous as to whether they rest on state-law or federal-law
grounds. Rather than run the risk of improperly reversing a
judgment based on state law, we adopted the practice of vacating
and remanding so that the state court could make the reasons for
its judgment clear. See,
e. g., Minnesota v.
National Tea
Co., 309 U. S.
551 (1940);
Department of Mental Hygiene of Cal. v.
Kirchner, 380
U. S. 194 (1965).2
2 In
Michigan v.
Long, 463 U. S. 1032 (1983),
we largely supplanted this policy with the rule that state-court
decisions discussing federal law will be presumed to be based on
federal law unless the contrary is clear from the face of the
opinion.
Id., at 1037-1044; see also
Arizona v.
Evans, 514 U. S. 1, 6-9 (1995) (reaffirming this approach).
But cf.
Capital Cities Media, Inc. v.
Toole, 466 U. S. 378 (1984)
(post-Long decision vacating and remanding for clarification
of state supreme court decision rendered without opinion).
182
We have GVR'd with increasing frequency in recent years on the
basis of suggestions or representations made by the Solicitor
General. Some of these cases are nothing more than examples of the
"intervening-event GVR" discussed above, the Solicitor General
pointing out that a case or statute has intervened since the
judgment below. See,
e. g., Woods v.
Durr, 336 U. S. 941 (1949);
Altiere v.
United
States, 382 U. S.
367 (1966). We have also announced no-fault GVR's, however,
when there has been no intervening development other than the
Solicitor General's confession of error in the judgment. That is a
relatively new practice. As recently as 1942 a unanimous Court (two
Justices not participating) wrote the following:
"The public trust reposed in the law enforcement officers of the
Government requires that they be quick to confess error when, in
their opinion, a miscarriage of justice may result from their
remaining silent. But such a confession does not relieve this Court
of the performance of the judicial function. The considered
judgment of the law enforcement officers that reversible error has
been committed is entitled to great weight, but our judicial
obligations compel us to examine independently the errors confessed
.... Furthermore, our judgments are precedents, and the proper
administration of the criminal law cannot be left merely to the
stipulation of the parties .... " Young v. United
States, 315 U. S.
257, 258-259 (1942).
Cf.
U. S.
Bancorp Mortgage Co. v.
Bonner Mall
Partnership, 513
U. S. 18 (1994) (setting aside of a valid judicial judgment
should not turn upon agreement of the parties). Many of the early
GVR's based upon the Government's confession of error appear not to
have been no-fault V &R's at all, but rather summary decisions
on the merits, with remand for further proceedings. See,
e. g.,
Chiarella v.
United States, 341 U. S. 946 (1951)
("[uJpon consideration of the record and
183
the confession of error by the Solicitor General," remanding to
the District Court for resentencing) (emphasis added);
Penner v.
United States, 399 U. S. 522 (1970)
("[o]n the basis of a confession of error by the Solicitor General
and of an independent review of the record," remanding to the
District Court "with instructions to dismiss the indictment").
Our recent practice, however, has been to remand in light of the
confession of error without determining the merits, leaving it to
the lower court to decide if the confession is correct. As late as
1981, the current Chief Justice, joined by Justice White, objected
to this practice. See
Mariscal v.
United States,
449 U. S. 405,
407 (1981) (REHNQUIST, J., dissenting) ("I harbor serious doubt
that our adversary system of justice is well served by ...
routinely vacating judgments which the Solicitor General questions
without any independent examination of the merits on our own"). I
agree with that position. The practice is by now well entrenched,
however. See,
e. g., Reed v.
United States, 510 U. S.
1188
(1994); Ramirez v.
United States, 510 U. S. 1103
(1994). It may be considered a separate category of no-fault V
&R.
Finally (and most questionably) we have in very recent years
GVR'd where the Solicitor General has
not conceded error in
the judgment below, but has merely acknowledged that the ground, or
one of the grounds, on which the lower court relied was mistaken.
See,
e. g., Alvarado v.
United States, 497 U. S. 543 (1990);
Chappell v.
United States, 494 U. S. 1075 (1990).
That is in my view a mistaken practice, since we should not assume
that a court of appeals has adopted a legal position only because
the Government supported it. Four Justices now sitting on the Court
have disapproved this sort of GVR. See
Alvarado, supra, at
545 (REHNQUIST, C. J., joined by O'CONNOR, SCALIA, and KENNEDY,
JJ., dissenting).3
3 The Court misdescribes my position when it states that I would
limit GVR's "based on confessions of error that do not purport to
concede the whole case" to "cases in which the confession of error
concerns a 'legal
184
Today's cases come within none of these categories of nofault V
&R, not even the questionable last one. In
Stutson v.
United States, post, p. 193, the decision "in light of"
which we vacate the judgment and remand,
Pioneer Investment
Services Co. v.
Brunswick Associates Ltd. Partnership,
507 U. S. 380 (1993), had been on the books for well more than
a year before the Eleventh Circuit announced the judgment under
review, and for almost two years before that court denied
rehearing. Moreover, the parties
specifically argued to the
Court of Appeals the question whether
Pioneer established
the standard applicable to petitioner's claim of "excusable
neglect" under Federal Rule of Appellate Procedure 4(b), with the
United States disagreeing with petitioner and taking the position
that
Pioneer was
not controlling. The Eleventh
Circuit ruled against petitioner on the merits of his claim; its
one-sentence order contained neither a reference to
Pioneer
nor any suggestion that the court viewed the case as turning on
which party's proffered standard was applied.
The United States has now revised its legal position andthough
it makes no suggestion that the Court of Appeals' judgment was
incorrect-is of the view that
Pioneer does establish the
standard governing petitioner's claim. But the fact that the party
who won below repudiates on certiorari its position on a particular
point of law does not give rise to any "intervening," post judgment
factor that must be considered. The law is the law, whatever the
parties, including the United States, may have argued. As described
above,
point on which the lower court explicitly relied.'''
Ante, at 171 (quoting
infra, at 185). Both the text
above and the sentence immediately following the phrase that the
Court quotes from my dissent, see
ibid., make my position
clear. The line of distinction I would draw-and the one long
established in our practice-is between a respondent's concession of
error
in the lower court's judgment and a respondent's
concession of error that goes not to the judgment but merely to an
aspect of the reasoning below or of respondent's argument
below.
185
we have sometimes GVR'd where the Government has, while still
supporting the judgment in its favor, conceded the error of a legal
point on which the lower court explicitly relied. As I have
explained, see
supra, at 183, in my view even that practice
denies valid judgments the respect to which they are entitled. But
the GVR in the present case goes still further. We do not know in
this case whether the Eleventh Circuit even
agreed with the
Government's position that has now been repudiated; for all we
know, the court
applied Pioneer and found against petitioner
under that standard. The judgment is declared invalid because the
Eleventh Circuit
might (or might not) have relied on a
standard
(non-Pioneer) that
might (or might not) be
wrong, that
might (or might not) have affected the outcome,
and that the Eleventh Circuit
might (or might not) abandon
(whether or not it is wrong) because the Government has now
abandoned it. This seems to me beyond all reason.
The Court justifies its setting aside of the judgment on the
ground that "we [do not] place an excessive burden on [the Eleventh
Circuit], relative to [petitioner's] liberty and due process
interests, by inviting it to clarify its ambiguous ruling."
Stutson, post, at 196. Vacating for ambiguity may be
justifiable, as I have noted, when the ambiguity calls into
question our very power to take and decide the case, see
supra, at 181, and n. 2. But where that power is (as it is
here) beyond doubt, it seems to me quite improper to vacate merely
in order to get a better idea of whether the case is "worth"
granting full review. If this is appropriate with respect to court
of appeals' summary dispositions of criminal cases, I see no reason
why it is not appropriate with respect to criminal dispositions
accompanied by opinions as well. Or, for that matter, why it is not
appropriate for civil cases. "GVR'd for clarification of -" should
become a common form of order, drastically altering the role of
this Court. In my view we have no power to make such a tutelary
remand,
186
as to a schoolboy made to do his homework again.4 The Court
insists that declining to remand for clarification would risk
"immunizing summary dispositions ... from our review,"
Stutson,
post, at 196. That is not so. It is fully within our power to
review this case, and any other case summarily decided below, by
granting certiorari and proceeding to consider the merits; or
indeed, where the circumstances warrant, to summarily reverse. Cf.
Hellman, "Granted, Vacated, and Remanded"-Shedding Light on a Dark
Corner of Supreme Court Practice, 67 Judicature 389, 391-392 (1984)
(noting that in the 1970's as the Court's GVR practice "increased
far beyond what it had been in earlier years," its use of summary
reversal based on intervening precedents decreased
dramatically).
In No. 94-9323, the Court again GVR's because the Government has
changed a legal position: The Commissioner of Social Security
informs us that she now agrees with petitioner on a preliminary
point of law that the Court of Appeals found in the Government's
favor. And here again, respondent does not concede that the
judgment below was in error, for she "ha[s] not ... reached a firm
conclusion" as to her position on the subsequent point of law that
will (if her recantation on the preliminary point is accepted)
control the outcome of the case. Brief for Respondent in No.
94-9323, p. 13.5 There is, however, a special factor in this second
case: Respondent is an agency head, whose view on the legal point
in question is in some circumstances entitled to defer-
4 Netherland v.
Tuggle, 515 U. S. 951 (1995),
upon which the Court relies, see
ante, at 170, is not to the
contrary. That was not a "no-fault V&R," but a reversal of the
lower court for abuse of discretion in its entry of a stay
order.
5 Because the Commissioner is not prepared to say that she
disagrees with petitioner as to the proper disposition of this
case, it is questionable whether any case or controversy subsists.
Quite apart from the other difficulties with the course the Court
has chosen, it seems to me we should not permit the Commissioner to
trouble the Fourth Circuit again until she makes up her mind on
this issue.
187
ence, see
Chevron U. S.
A. Inc. v.
Natural
Resources Defense Council, Inc., 467 U. S. 837 (1984). If
it were clear that respondent's change in position were entitled to
deference, I would have no problem with the GVR; the new position
would then constitute an intervening post judgment factor whose
effect the Court of Appeals should be allowed to consider. But even
if we allow deference to an agency view first expressed in pending
litigation (as some think we should not, see Anthony, Which Agency
Interpretations Should Bind Citizens and the Courts?, 7 Yale J.
Reg. 1, 60-61 (1990); cf. Merrill, Judicial Deference to Executive
Precedent, 101 Yale L. J. 969, 1023 (1992)), surely a decent
concern for those litigating against the Government and for our
lower court judges should induce us to disregard, for
Chevron purposes, a litigating position
first expressed
at the certiorari stage. The United States is the most
frequent, and hence the most calculating, of our litigants. If we
accord deference in the circumstances here, we can expect the
Government to take full advantage of the opportunity to wash out,
on certiorari, disadvantageous positions it has embraced below; and
we can expect it to focus less of its energy upon getting its
position "right" in the courts of appeals.
The Court, however, thinks it unnecessary to decide the
deference question. It is enough, as the Court sees it, that its
summary review has led it to "believe that [the] agency
interpretation is reasonably probably entitled to deference and
potentially determinative."
Ante, at 172. I do not agree. It
seems to me our "intervening-event GVR's" should not be extended to
the situation where (1) the intervening event consists of a party's
going back on what it argued to the court of appeals,
and
(2) it is not even certain that the change in position is legally
cognizable. That seems to me to accord inadequate respect to the
work of our colleagues below. Moreover, it is not clear to me that
the question before us (should an agency change of position at the
certiorari stage be accorded deference?)
can even be
reached
188
by the Court of Appeals. Surely we do not expect the Court of
Appeals to declare our vacation and remand invalid. Thus, the Court
of Appeals will have before it the somewhat
different
question whether the agency change of position
before it is
entitled to deference. I suppose it may conclude that,
since
a change of position on certiorari is not entitled to deference, a
change of position on a remand triggered by change of position on
certiorari is not entitled to deferencebut that would assuredly be
a convoluted holding. The question of what is permissible on
certiorari seems to me peculiarly within the domain of this Court.
Since we are in doubt on the deference point in the present case,
we should either deny the petition, or grant it and have the
deference point argued.
The Court's failure to comprehend why it should make any
difference that the Government's changed litigating position may
not be entitled to deference, see
ante, at 172-173, displays
a lamentable lack of appreciation of the concept of adding insult
to injury. It is disrespectful enough of a lower court to set its
considered judgment aside because the Government has altered the
playing field on appeal; it is downright insulting to do so when
the Government's baitand-switch performance
has not for a
certainty altered any factor relevant to the decision. In that
situation, at least, we should let the Government live with the
consequences of its fickleness or inattention. The Court claims
that it would "defeat the purpose of GVR'ing" to determine the
deference issue on the merits, since that issue is "based on a
circumstance ... that will not be present in any other case brought
under the statute at issue."
Ibid. That is true enough
(barring the unlikely event that the Government in a later case
under this very statute again switches its position at the
certiorari stage). But the issue of whether
Chevron
deference should be accorded to a certiorari-stage switch of
litigating position is not at all unique to the individual case or
bound up with the underlying statute. It always arises, of
189
course, in an individual case involving a particular statute, as
do most questions of law. But the issue itself is thoroughly
generalizable, and of general importance. In any event, I do not
urge that we determine the deference issue on the merits; my vote
in these cases is to deny the petitions. Finally, I must remark
upon the Court's assertion that we issued "just such a GVR order
last Term, without recorded dissent,"
ante, at 173, citing
Schmidt v.
Espy, 513 U. S. 801 (1994): It is not
customary, but quite rare, to
record dissents from grants of
certiorari, including GVR's. It would be wrong to conclude from the
unsigned order in
Schmidt that the vote to GVR was
unanimous, or even close to unanimous. Thus,
Schmidt does
not demonstrate that bait-and-switchdeference GVR's are an accepted
practice; but the fact that
Schmidt was apparently the
first-ever such GVR, combined with the fact that the Government is
back one Term later for another helping, demonstrates the accuracy
of my prediction that the Solicitor General will be quick to take
advantage of this new indulgence.
What is more momentous than the Court's judgments in the
particular cases before us-each of which extends our prior practice
just a little bit-is its expansive expression of the authority that
supports those judgments. It acknowledges, to begin with, no
constitutional limitation on our power to vacate lower court orders
properly brought before us.
Ante, at 166. This presumably
means that the constitutional grant of "appellate Jurisdiction"
over "Cases ... arising under [the] Constitution [and] Laws of the
United States," Art. III, § 2, empowers the Court to vacate a state
supreme court judgment, and remand the case, because it finds the
opinion, though arguably correct, incomplete and unworkmanlike; or
because it observes that there has been a post judgment change in
the personnel of the state supreme court, and wishes to give the
new state justices a shot at the case. I think that is not so. When
the Constitution divides our jurisdiction into "original
Jurisdiction" and "appellate
190
Jurisdiction," I think it conveys, with respect to the latter,
the traditional accoutrements of appellate power. There doubtless
is room for some innovation, particularly such as may be necessary
to adapt to a novel system of federalism; but the innovation cannot
be limitless without altering the nature of the power
conferred.
Not only does the Court reject any constitutional limitation
upon its power to vacate; it is unwilling to submit to any
prudential constraint as well. Even while acknowledging the
potential for "unfair[ness] or manipulat[ion]" and professing to
agree that "our GVR power should be exercised sparingly,"
ante, at 168, 173, the Court commits to no standard that
will control that power, other than that cloak for all excesses,
"the equities,"
ante, at 168; see
ante, at 173, 174,
175; post, at 196. We may, as the Court now pronounces, set
aside valid judgments not merely when they are wrong, not merely
when intervening events require that someone (either the lower
court or we) reconsider them on new facts or under new legal
criteria, not merely when it is ambiguous whether we have power to
review them, not merely when the United States concedes that the
judgment below (or one of the points of law relied upon below, or
even one of the points of law
possibly relied upon below) is
wrong; but whenever there is "a reasonable probability that the
decision below rests upon a premise that the lower court would
reject if given the opportunity for further consideration."
Ante, at 167. The power to "revis[e] and correc[t]" for
error,
Marbury v.
Madison, 1 Cranch 137, 175 (1803),
has become a power to void for suspicion. Comparing the modest
origins of the Court's no-fault V &R policy with today's
expansive
denouement should make even the most Pollyannish
reformer believe in camel's noses, wedges, and slippery slopes.
The Court justifies its approach on the ground that it
"alleviates the potential for unequal treatment that is inherent in
our inability to grant plenary review of all pending cases
191
raIsmg similar issues."
Ante, at 167 (internal quotation
marks omitted). I do not see how it can promote equal treatment to
announce a practice that we cannot possibly pursue in every case.
If we were to plumb the "equities" and ponder the "errors" for all
the petitions that come before us-if we were to conduct, for
example, in all cases involving summary decisions, today's
balancing of the "burden" to the Court of Appeals against the
litigant's "interests" in having clarification of the ruling, see
Stutson, post, at 196, or today's calculation of "the
overall probabilities and equities,"
ante, at 173-we would
have no time left for the cases we grant to consider on the merits.
Of course we do not
purport to conduct such inquiries, not
even the basic one of whether the decision below is probably in
"error" -which is why we insist that our denial of certiorari does
not suggest a view on the merits, see,
e. g., Teague v.
Lane, 489 U.
S. 288, 296 (1989);
Singleton v.
Commissioner,
439 U. S. 942 (1978) (STEVENS, J., respecting denial of petition
for writ of certiorari). Moreover, even if we tried applying the
Court's "totality-of-thecircumstances" evaluation to all the
petitions coming before us, we would be unlikely to achieve equal
treatment. Such a plastic criterion is liable to produce
inconsistent results in any series of decisions; it is virtually
guaranteed to do so in a series of decisions made without
benefit of adversary presentation (whether we should GVR is rarely
briefed, much less argued-as it has not been here) and announced
without accompaniment of a judicial opinion (we almost never give
reasons as the Court has done today). The need to afford equal
treatment argues precisely
against the
"totality-of-the-circumstances" approach embraced by the Court, and
in favor of a more modest but standardized GVR practice.
Henceforth, I shall vote for an order granting certiorari,
vacating the judgment below without determination of the merits,
and remanding for further consideration, only (1) where an
intervening factor has arisen that has a legal bear-
192
ing upon the decision, (2) where, in a context not governed by
Michigan v.
Long, 463 U. S. 1032 (1983),
clarification of the opinion below is needed to assure our
jurisdiction, and (3) (in acknowledgment of established practice,
though not necessarily in agreement with its validity) where the
respondent or appellee confesses error in the judgment below. (I
shall not necessarily note my dissent from GVR's where those
conditions do not exist.) As I have discussed, neither of the
present cases meets these standards. Accordingly, I respectfully
dissent from today's orders and would deny both petitions.
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