The Supreme Court’s Controversial GVRs – And an Alternative

This Article addresses a relatively neglected portion of the Supreme Court’s docket: the “GVR”-that is, the Court’s procedure for summarily granting certiorari, vacating the decision below without finding error, and remanding the case for further consideration by the lower court. The purpose of the GVR device is to give the lower court the initial opportunity to consider the possible impact of a new development (such as a recently issued Supreme Court decision) and, if necessary, to revise its ruling in light of the changed circumstances. The Court may issue scores or even hundreds of these orders every year. This Article has two parts, one descriptive and one cautiously prescriptive. First, because we currently lack systematic data on GVRs, the Article begins by collecting and analyzing over a decade of data, with additional data on certain categories of GVRs that are sometimes considered controversial. Second, the Article uses the data to critically examine the GVR device. As we learn more about GVRs, we might come to regard the entire practice-not just a few particular subcategories-as more problematic than previously recognized. This realization might lead us to consider whether there is a different approach that would better serve the interests of litigants, the Supreme Court, and the judicial system as a whole. Accordingly, the Article proposes an alternative to the current GVR practice that attempts to preserve the attractive features of the current practice while reducing the Court’s role in overseeing the implementation of changes in law.