Supreme Court GVRs and Lower-Court Reactions

Abstract

We seek to understand the Supreme Court's “Grant, Vacate, and Remand” (GVR) dispositions and the reaction to those dispositions by the U.S. Court of Appeals. Drawing on data from four Court terms, we trace the reaction of the lower courts to GVR orders, culling information about the meaning of the GVR to those lower courts from their responses and from our interviews with several unnamed circuit court judges. We then code the lower-court decisions to systematically detail how circuit courts react to GVRs.

KEYWORDS::

• GVR
• compliance
• monitoring
• courts of Appeals
• supreme Court
• implementation

ACKNOWLEDGMENTS

We thank Stephen Wasby for data, reactions to issues, comments on earlier drafts, and advice on interviewing; Paul Collins and Chad Westerland for helpful comments on an earlier draft; and the judges who talked to us for this study, though they will remain completely anonymous in this article.

Notes

Confidential interview by author, April 16, 2007 (on file with S. Benesh).

Confidential interview by author, April 16, 2007 (on file with S. Benesh).

Confidential interview by author, April 16, 2007 (on file with S. Benesh).

See Seventh Circuit Rule 54, which says, “When the Supreme Court remands a case to this court for further proceedings, counsel for the parties shall, within 21 days after the issuance of a certified copy of the Supreme Court's judgment pursuant to its Rule 45.3, file statements of their positions as to the action which ought to be taken by this court on remand.” Available online at www.ca7.uscourts.gov/Rules/rules.htm (visited February 18, 2008). Judges in other circuits also mentioned this as a potential next step after receiving a GVR. See, e.g., Hernandez v. Denton, 929 F.2d 1374 (9th Cir. 1990), where Judge Schroeder, writing for the panel, says, “We have given further consideration after requesting briefs from the parties as to the bearing of that decision on this case” (at 1374). And the Fourth Circuit rule on remands notes that judges “may require additional briefs and oral argument.” Available online at www.ca4.uscourts.gov/pdf/rules.pdf (visited February 18, 2008). This idea was mentioned by all judges we interviewed, especially in reference to “close” cases.

One of the leading works on point calls it “the most puzzling mode of disposition in the Court's repertory” (Hellman, 1983b:836).

To collect our data, we first printed all of the Court's orders for the four terms under study. These are available on the Supreme Court's Web site, www.supremecourtus.gov (visited February 18, 2008). We then searched LEXIS using the party names as given in the Supreme Court's order to find the lower court's reaction to the GVR disposition. We surely missed some cases (the Supreme Court provides only the name of the case and sometimes chooses one of many parties, sometimes even misspelling the parties’ names, along with the circuit, so some were difficult to find) and others may not have been decided by the circuit court as of this writing. For those we did find, we coded a host of variables of interest, some of them discussed in this article. To supplement this data collection, we also spoke to four circuit court judges. For the purposes of this article, they remain entirely anonymous, including any mention of their home circuits. All of the judges were extremely accommodating, and we very much appreciate the substantial time they gave us.

This section draws heavily on Benesh (2008).

This is especially true given that it appears that the justices use a “rule of six” in deciding to hand down a GVR order. In other words, six justices have to agree to GVR a case before it happens; hence, there is not much room left for dissent (Perry, 1991:100). Note, though, that there do exist GVRs with four dissenters, which casts some doubt on the tenacity of this “rule” (Martin, 2004:n. 96).

Recently, the Court GVR’d a case without citing an intervening event. See Youngblood v. West Virginia, 547 U.S. 867 (2006), prompting a law-review comment criticizing the Court for overstepping its authority (Ku, 2008). There, the Court GVR’d in order to obtain “the benefit of the views of the full Supreme Court of Appeals of West Virginia on the Brady issue” (p. 870).

Material provided by Stephen Wasby, from his research in Ninth Circuit case files, on the condition that the judges’ names be kept confidential.

The “in light of” case was State Farm Mutual Automobile Insurance Co. v. Campbell (123 S.Ct. 1513, 2003).

Confidential interview by author, April 16, 2007 (on file with S. Benesh).

Confidential interview by author, April 16, 2007 (on file with S. Benesh).

However, Martin claims that the GVR has actually created “perverse incentives that increase transaction costs, delay adjudication, burden both the Supreme Court and lower courts, and result in both systemic and individualized injustice” (2004:552) as litigants gain incentives to file even meritless appeals to keep a case alive.

Other scholars have observed also that when a case is held and the Court denies cert, it may be a signal that the Court “thought that the decision it declined to review (or even to GVR) was consistent with its recent opinion” (Robertson and Sturly, 2006:217).

Our numbers are comparable to Bruhl's, though not exactly the same. We attribute this to our differences in data-collection methods and our definition of the focus of our respective studies.

Interestingly, one of the judges with whom we talked expressed the opinion that the Booker remands did not have much effect—that the sentences were largely reinstated. “There's no point in having a sentencing commission,” after all, “if we don't pay some attention to the guidelines,” the judge said.

It is true, though, that sometimes the circuit court, rather than issuing a substantive ruling in response to the GVR, merely remands it back to the district court for resolution. The judges we interviewed considered this a commonsense way to deal with the Supreme Court's behavior, but we deemed such a reaction neither automatically compliant nor noncompliant. Some of those cases that were merely remanded to the district court without any accompanying opinion drop out of our analysis because they are coded as missing on our various compliance measures. (Twelve such cases are included in our data set.) Others, when accompanied by a written opinion, are coded substantively as either complying or not complying with the spirit of the Court's GVR order.

TABLE 3 Disposition Before and After GVR (non-Booker cases)* (Percentage of Total Number in Parentheses)

TABLE 4 Compliance with GVR (Non-Booker Cases) (Number of Compliant Cases in Parentheses)

Some have questioned the use of Shepard's Citations to ascertain the treatment accorded to Supreme Court precedent. However, Spriggs and Hansford (2000), in an extensive analysis of both reliability and validity, find that Shepard's codes are quite reliable (i.e., they are able to replicate their coding of over 80 percent of the cases they considered) and, for the most part, valid (beyond a concern with the heterogeneity of certain treatment categories).

The circuits do not, however, always publish their responses to Supreme Court GVRs. Indeed, in 47 percent of our cases (55/116), the circuit response was not published. Of course, the circuits vary broadly in their rules regarding publication and in the extent to which they publish decisions, so while this fact may seem to suggest something less than full compliance, not much should be made of these numbers (Benesh, 2002). Indeed, a 53 percent publication rate is quite a bit above the average rate of around 33 percent (see Benesh, 2001).

Confidential interview with the author, April 16, 2007 (on file with author).

Confidential interview with the author, April 16, 2007 (on file with author). Another judge likened his or her memory to a bathtub in noting that he or she had not noticed whether the Court is more or less likely to hear appeals of formerly GVR’d cases: “The tendency in this business is that there's so much volume, that once you make a decision, once you put all the facts in your head. I could describe it as the bathtub mind. You sort of pull the plug and that stuff drains out and then you fill it up with another case.”

Confidential interview with the author, April 16, 2007 (on file with S. Benesh).

However, Berch tells stories of noncompliance, arguing that summary remands provide too much leeway to lower-court judges (2004). One court, he says, complied with a remand order on a three-million-dollar verdict by reducing it by one cent (Berch, 2004).

Confidential interview with the author, April 16, 2007 (on file with S. Benesh).