Legal Commentary

It has been a pleasure guest-blogging here for the past month.  I thank Dan and the other perma-Prawfs for inviting me.  And thank you, readers, for your thoughtful comments.  I had thought that my previous post, on "controversial GVRs," would be my last one.  But today the Supreme Court has issued some more unusual GVRs, so I can't help myself from posting one last item.  In particular, I wanted to point out that today four Justices (the Chief, Scalia, Thomas, and Alito) dissented from the GVR in Machado v. Holder, which was triggered by the Solicitor General's confession of error.

Now, SG confessions of error aren't that unusual.  Most years there are a handful of cases in which the Supreme Court GVRs in light of the government's statement that the lower court erred.  Often the reason the lower court erred is because it accepted an argument that the government advanced below but that the SG (now) thinks is wrong.  (Of course, confessions of error come up in contexts besides the SG's responses to petitions for certiorari; I'm just focusing on that context.)  The way the Court has handled these circumstances has changed over the course of several decades, and some of the Justices are not happy about it.  Here is a brief account of the history:

At one time, the Court?s usual practice was to conduct its own independent review of the record in order to satisfy itself that the judgment was indeed erroneous.  Then it would order an appropriate disposition, such as a new trial.  See, e.g., Penner v. United States, 399 U.S. 522, 522 (1970) (vacating and remanding with instructions to dismiss the indictment ?[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record?); Baxa v. United States, 381 U.S. 353, 353 (1965) (vacating and remanding for new trial ?[o]n consideration of the confession of error by the Solicitor General and upon examination of the entire record?).  For the last few decades, however, the Court has instead GVR?d so that the court below can consider the confession of error and what (if anything) to do about it.  There was some opposition to this switch.  See Mariscal v. United States, 449 U.S. 405, 407 (1981) (Rehnquist, J., dissenting).  But all members of the Court now appear either comfortable with or at least resigned to the practice of GVR?ing when the government concedes error in the bottom-line judgment. See Lawrence v. Chater, 516 U.S. 163, 183 (1996) (Scalia, J., dissenting) (objecting to the practice but recognizing that it ?is by now well entrenched?). 

More controversial is the Court?s more recent practice of GVR?ing in cases where the government does not admit error in the judgment but instead only in the reasoning below.  Several Justices complained when that started to happen.  See Alvarado v. United States, 497 U.S. 543, 545 (1990) (Rehnquist, C.J., joined by O?Connor, Scalia, and Kennedy, JJ., dissenting).  Chief Justice Roberts previously indicated his agreement with that complaint, joining Justices Scalia and Thomas in a 2008 dissent.  Today?s GVR was another case in which the SG did not concede that the judgment was wrong.  Justice Alito joined the dissent, signaling that he too objects to the practice.  (Or, at least, that he objects in this case, which included an additional wrinkle concerning whether the petitioner had properly preserved error.)  But notably, Justice Kennedy appears to have reconciled himself to this practice; he did not dissent today, for instance, when he would have been the decisive vote against a GVR.

A more fully cited version of this history is available here.

Farewell!