GVRs: The War in the Shadow Docket

On Monday, the Supreme Court’s order list figured a seemingly inconsequential spat between Justices Sotomayor and Alito.  They fought over an obscure procedural mechanism (the GVR) that the Court uses for cases it doesn’t even want to consider.  This post argues that their seemingly-mundane fight was actually over something larger.

The Supreme Court, in addition to its published opinions that dominate news coverage, puts out another entirely separate group of orders and opinions that rarely make headlines and are rarely signed.  Chicago professor William Baude has called this cluster of orders and opinions the “shadow docket.”  See, e.g., William Baude, Forward: The Supreme Court’s Shadow Docket, 9 NYU J. of Law and Liberty 1 (2015).  This shadow docket has several primary components, and all are appended to the Order List that the Court puts out about once a week:  grants and denials of certiorari, per curiam opinions (unsigned opinions disposing of cases on their merits), and GVRs.  GVRs stand for “grant; vacate; remand.”  These opinions grant certiorari (review); vacate the opinion below; and remand the case to the lower court for new consideration.  Often, the Court mandates this consideration “in light of” some recent opinion – i.e., if the Court has just put out a new death penalty case, they will remand for consideration “in light of” the rule that opinion announced.

GVRs could theoretically be uncontroversial; the logic underlying them seems clear.  But they are, in fact, a seeming source of tension between the justices.  Aaron-Andrew P. Bruhl described the controversies surrounding the GVR in the years leading up to 2009.  See Bruhl, The Supreme Court’s Controversial GVRs – And An Alternative, 107 Mich. L. Rev. 711 (2009).  In particular, he describes Justice Scalia’s heated reaction to Youngblood v. West Virginia, an unconventional GVR that did not follow normal GVR protocols, and for which Justice Scalia accused the Court of “sparing [itself] of correcting the suspected error.”  Bruhl, 107 Mich. L. Rev. at 714-15 (citing Youngblood, 547 U.S. 867 (2006)).  Justice Scalia’s general distaste for the use/misuse of the GVR vehicle continued.  In Webster v. Warden (2009), he wrote that the GVR should be used “to give the court to which we remand the first opportunity to consider” a new factor, and that the Court was misusing the practice as a rote error-correction mechanism.  Justice Scalia reprised these objections in Wellons v. Hall (2010), when he and the majority actively fought over the GVR’s role – the per curiam decision noting that GVRs preserve Court resources; Scalia noting that if the lower court erred, they should be reversed.

However, for as much as Justice Scalia was an enemy of the GVR, Justice Alito seems to have even more fully taken up the mantle of the anti-GVR crusader.  This shift matters because the GVR, in recent years, seems like it has become the scene of a proxy war between Justices Alito and Sotomayor over the role of the Court and over two ways of viewing American civic life.

Justice Alito genuinely opposes the GVR, at least in its current form. I went back six years and looked for every GVR that had an attached opinion.  Almost every time a justice wrote anything about a GVR since 2009, Justice Alito opposed the GVR’s invocation or wrote to narrow its scope.  See Adams v. Alabama (2016) (narrowing GVR); Williams v. Louisiana (2016) (dissenting from grant of GVR over JJ Ginsburg/Breyer/Sotomayor/Kagan’s concurrence in GVR); Volkman v. United States (2014) (narrowing GVR and writing “to highlight the nature of petitioner’s burden going forward”).  Importantly, Justice Alito’s opposition to the mechanism seems to be non-partisan.  See Elmbrook School District v. Doe (2014) (Alito declining to join Scalia and Thomas in calling for GVR of religious-freedom opinion).

From the other side of the ideological spectrum, Justice Sotomayor seems to have thoroughly embraced the vehicle – even from her early days on the Court.  In 2010, she dissented from the denial of certiorari in Williams v. Hobbs, noting that the Court should vacate the ruling below.  See also Hodge v. Kentucky (2012) (dissenting and recommending GVR).

These conflicts add another layer of nuance to the Court’s weekly order list. The liberal and conservative wings generally, and Justices Sotomayor and Alito specifically, are using GVR concurrals/dissentals to wage a full-scale ideological proxy contest over the role of the Supreme Court in American life.  That proxy contest embodies a core American conflict – local v. centralized control.  Liberals tend to favor more centralized control; conservatives tend to believe that localities do a better job managing their own affairs and embrace the lack of oversight that entails.

In the 1990s, the Court litigated these issues on the open-air docket and over the issue of federalism. See, e.g., United States v. Morrison, 529 U.S. 598 (2000) (fiercely-fought federalism opinion); United States v. Lopez, 514 U.S. 549, 567-68 (1995) (warning that Constitution does not countenance regime where there is no “distinction between what is truly national and what is truly local”).  But while federalism still finds places on the open-air docket, part of the fight has moved.  Just Monday, Justice Alito and Justice Sotomayor were back at it – penning dueling and emblematic opinions on the propriety of GVRing Tatum v. Arizona (2016).  Justice Sotomayor concurred in the decision to GVR; such a concurrence is unnecessary for a GVR.  Sotomayor noted that while the Court was asking the lower courts to re-do their analysis, such a re-do was necessary because the lower court had erred the first time.  She emphasized that the inquiry the Court was imposing on the lower courts was just and proper.  Justice Alito, contrarily, dissented from the GVR order.  He noted that the Court was “misusing the GVR vehicle” and that the Court does “not GVR so that a lower court can reconsider the application of a precedent it has already considered.”  He echoed, yet again, the Scalian criticism that the Court was “insisting on a do-over.”

At its heart, these decisions are a fight about how much supervisory authority the Supreme Court will exercise over the regional circuit courts.  Justice Alito argues, just as Justice Scalia did, that the Supreme Court should treat those regional courts with respect, that it should not force reconsideration without actually deciding cases.  And of course, the Supreme Court does not have the resources to issue merits opinions on every regional court error or potential error – so the Alito regime would result in considerable autonomy for the regional courts.  But unlike Justice Scalia’s howl-against-the-wind jeremiads in the 2000s, Alito has found an ideological adversary who will willingly engage him in the shadow docket – Sotomayor.  She, in essence, is arguing for a robust regime of review.  She wants the omnipresent threat of a GVR hovering over the regional courts.  It is worth noting that this is not totally unfair – the threat of a per curiam reversal hangs over every regional court that grants habeas relief.  But Justice Sotomayor is arguing for more centralized review of more types of opinions.

The shadow docket is interesting for many reasons.  But it is especially interesting if it is the place that Justices Alito and Sotomayor hone and craft their worldviews and their arguments.  Their fights in the shadow docket are a microcosm of a larger split.

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GVRs: The War in the Shadow Docket

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