Under the Radar With GVRs

A regular yet often overlooked practice in the Supreme Court is the grant, vacate remand or GVR.  A GVR is a summary disposition where, generally (although not always) based on a plenary decision, the Court grants certiorari in a case, vacates the lower court’s decision, and remands the case back to the lower court based on the Supreme Court’s plenary decision in the related case.  There were five such decisions on October 31st, 2016 alone with Purcell v. Arizona, Najar v. Arizona, Arias v. Arizona, DeShaw v. Arizona, and Timm v. North Dakota

Although these decisions receive little public attention, they are one of the most significant ways for the Court to clear cases from its docket aside from denying them cert.  Since September 1, 2014 or just prior to the beginning or the 2014 Supreme Court Term, the Court has GVRed 223 cases.  This significantly surpasses the number of cases granted on cert for any other decision method.  Since this practice is predominately derivative of plenary decisions, a starting point for analysis is examining which decisions precipitated GVRs during this period.

The 223 GVRs were based on 40 cases (there were a few instances where later promulgated regulations or party filings led to GVRs as well).  This led to a potential average of nearly 5.5 GVRs per Supreme Court decision if they were spread evenly.  Of course the spread is not even. Most of the Supreme Court cases that led to GVRs only led to one or a handful and consequently a few Supreme Court cases were responsible for the bulk of the GVRs during this time.

Before getting into the details of the cases, an interesting nuance to point out is the number of in-forma pauperis or IFP petitions that are included in the 223 granted petitions.  IFP petitions are from indigent and often incarcerated defendants who cannot afford the Court’s filing fees.  143 or over 50% of the 223 GVRs were from IFP petitioners.  This is another element that foreshadows the type of cases that often lead to GVRs – that is, they often flow from criminal law and procedure decisions.  The figure below shows the number of GVRs in all cases out of the 40 that led to at least three GVRs.


In the top underlying case, Johnson v. United States, the Court held that Armed Career Criminal Act’s sentence enhancement scheme was unconstitutional.  Not surprisingly this affected many pending cases challenging the dictates of the same statute.  In Montgomery v. Louisiana, the Court held that the Court’s prior decision that juveniles could not be sentenced to life imprisonment without parole should apply retroactively.

Not all of the decisions relate to criminal matters however. Bank of America v. Caulkett dealt with bankruptcy rights. Zubik v. Burwell examined the rights of closely held religious corporations relating to healthcare coverage of their employees.  The precipitous fall from the GVRs stemming from Montgomery to Caulkett though is a strong indicator of the type of case that often leads to these decisions.

Going back to IFP petitioners, out of the list of Supreme Court cases that led to GVRs, the cases with the most IFP petitioners were Johnson with 60, Montgomery with 48, and Mathis v. United States, another case looking at the application of the Armed Career Criminal Act, with 14.

Another way to examine GVRs is by the lower court that previously decided the vacated and remanded cases (those that led to more than two GVRs):


This list itself corroborates a similarity between cases that lead to these decisions and the Supreme Court’s plenary decisions: they derive most often from federal courts of appeal (although the order of courts of appeal that led to GVRs does not parallel the courts that generally decide the most cases that lead to cert grants).  This list lacks meaning without some insight into the combination of underlying Supreme Court case and lower court:


Since almost all of the GVRs stemming from Caulkett came from the 11th Circuit, this is the most dominant combination.  The 11th Circuit was the lower court that led to the most GVRed decisions in total because of the number of 11th Circuit cases that were GVRed based on Johnson as well as on Caulkett.  As the Montgomery decision mainly impacted other cases from state courts, the two lower courts leading to the most GVRs from Montgomery were the Supreme Court of Louisiana and the Alabama Court of Criminal Appeals.

One last interesting tidbit relating to GVRs from these years: many came with separate opinions.  In fact, 97 of the GVRs incurred separate opinions from one or more of the Justices.  This was only feasible for the Justices because these were mostly duplicates. The most separate opinions per Justice based on the same underlying Supreme Court cases were Justice Thomas’ 46 concurrences in cases GVRed based on Montgomery, Justice Alito’s 40 concurrences in cases GVRed based on Johnson, and Justice Sotomayor’s 6 concurrences in cases GVRed based on Zubik.

On Twitter: @AdamSFeldman

Data compiled by @SamuelPMorse

See below for a full list of Supreme Court decisions underlying GVRs since September 1, 2014 (most case names are abbreviated)

Alabama Legislative Black Caucus
Arizona Redistricting
Burwell v. Hobby Lobby
Davis v. Ayala
Fifth Third Bancorp
Kellogg Brown
Riley v. CA
Town of Gilbert
Universal Health Services
Utah v. Strieff
Walker v. TX Div.

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