The Supreme Court’s GVR practice has traditionally been a sleepy backwater of appellate procedure. The GVR (i.e., grant, vacate, remand) is most commonly used when a lower court decision might be affected by a recent Supreme Court case that came down after the lower court ruled (though there are other types too). Over the course of the last few years, there have been several controversial GVRs that have raised the device’s profile a bit. Generally these have been cases in which some Justices, usually led by Justice Scalia, dissent from the GVR and charge that the Court is improperly expanding the GVR power. In effect, the dissenters say, the GVR is becoming, in different cases, either a way to make the lower court write a better opinion or a lazy substitute for a summary reversal. These cases reflect, in Scalia’s words, “the systematic degradation of [the] traditional requirements for a GVR.”
To list some of these cases:
– In Wellons v. Hall(2010), the Chief, Scalia, Thomas, and Alito all dissented, arguing that the new development that supposedly necessitated the GVR could not affect the lower court judgment, which (they argued) rested on a separately adequate foundation.
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