Academic journal article Justice System Journal

Supreme Court GVRs and Lower-Court Reactions

Academic journal article Justice System Journal

Supreme Court GVRs and Lower-Court Reactions

Article excerpt

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

The U.S. Supreme Court, despite its "least dangerous branch" status, has become a major player in American politics. Its decisions often capture the attention of the entire country, and they can, at times, undo the work of the elected branches. However, the Court, unlike Congress, does not have at its disposal very many tools to be sure its decisions are implemented. Indeed, the Supreme Court has an effect only when those charged with the implementation of its decisions, most often the lower federal courts, comply with its rulings. As Early notes, "a decision by the High Court is ... final, but has little more vitality than the lower courts are willing to give it" (Early, 1977:7).

Gaining compliance has been seen as a difficult task, given the institutional structure of the Court and the size of the federal and state judiciaries (Heilman, 1983b; Benesh, 2002b).'However, much research has considered the question of whether or not lower courts comply with Supreme Court precedent, largely finding that they do (see, e.g., Songer, Segal, and Cameron, 1994; Benesh, 2002b; Benesh and Reddick, 2001; Songer and Sheehan, 1990; Johnson, 1987). That research often concludes that the lower court complies because of its perception that it should; e.g., that it complies because of what the Supreme Court is rather than what it does (Benesh, 2002b; on subordinates responding to authority merely because they are the authority in general, see Simon, 1997).

One circuit judge, in a confidential interview, cited Justice Jackson's relatively famous aphorism when asked about the relationship between the Supreme Court and the lower courts: "We are not final because we are infallible, but we are infallible only because we are final" (Jackson, J., concurring, Brown v. Allen, 344 U.S. 443, 540 [1953]).2 And all of them noted that, given their inferior position, it was their job to comply with the Supreme Court. According to one: "if five of them say that our take in Smith v. Jones is not well-founded, that's it, school's out, take what they said, apply it to the facts, move on. And I would say that if there were nine justices up there that I agreed with all the time or not."3 The normative power of the Court with respect to its lower-court "agents," then, has the potential to be powerful (Pacelle and Baum, 1992).

In this article, though, we explore the effect of a set of cases not considered by the previous research on point, by considering circuit court reactions to "Grant, Vacate, and Remand" (GVR) dispositions by the Supreme Court. Unlike the U.S. Courts of Appeals, the U.S. Supreme Court is not (supposedly) in the business of error correction (Early, 1977; Heilman, 1983b; Perry, 1991; Armbruster, 1998). The Court should decide, according to its own rules, only those cases that are "of... general public importance or concern" (quoted in Heilman, 1983b:800). One circuit judge put it this way: "Well, they [the Supreme Court] don't decide cases. They decide issues."4 Therefore, the Court's behavior in cases they Grant, Vacate, and Remand, in light of some intervening event, seems to be an odd phenomenon.

One clerk, quoted by Perry, said that these GVRs can be explained via "the Zorro concept-where they strike like lightning to do justice" (Perry, 1991:100). Indeed, "justice" may require the Court to correct an error brought to its attention, especially when doing so is as easy as issuing a GVR order to the lower court (Armbruster, 1998). …

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