GVRs and privacy

Opinion by Chelsea Priest
April 9, 2015, 10:28 p.m.

The Supreme Court did something a bit unusual last week in Grady v. North Carolina.  While the Court usually receives a full set of legal briefs and hears an hour or more of oral argument before deciding a case, about 50 or 60 cases each year are decided without full briefing or oral argument.  That’s exactly what the Court did in Grady — without full briefing on the merits or oral argument, the Court granted certiorari (agreed to decide the case), vacated the lower court’s decision and remanded the case (sent it back to the lower court) for reconsideration in one fell swoop.  This maneuver is known as a “GVR” (Grant, Vacate, Remand) in Court parlance.

GVRs are commonly used when the Supreme Court has released a relevant opinion while a case is pending such that the correct outcome in the case is potentially different.  This was the case last year, for example, after the Court rejected the Federal Circuit’s longstanding standard for awarding attorney’s fees in patent cases — after announcing the new standard, the Court GVR’d a case to allow the Federal Circuit to reconsider its decision in light of the new standard announced by the Court.

But the Court has recently, and somewhat controversially, expanded its use of GVRs.  Justice Scalia, for example, has complained that the Court’s standard for deciding to GVR a case has become “flabby.”  Some have described the GVR process as an avenue for error correction, though the Supreme Court’s own rules provide that “certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.” In other words, the Court isn’t interested in your case unless the lower court completely misstated the law, regardless of how incorrect the lower court is on the facts or the application of the law.  In fact, GVRs are increasingly being issued in cases in which there is no intervening Supreme Court opinion that would affect the lower court’s decision, which has occasioned Justice Scalia’s and Justice Thomas’s criticism of the Court’s use of GVRs.

Even aside from the fact that the Court seems to be relaxing its usual certiorari-granting standards in the GVR context, there is reason to be concerned about the Supreme Court making big decisions without full briefing and argument.  While the Court usually receives hundreds of pages of briefing and at least an hour of oral argument before it decides a case, in GVRs, the Court only has the relatively small number of pages in the petition for certiorari that are devoted to the merits of the case.  In Grady, for example, the Court made its recent decision based only on approximately 17 pages of argument on the merits.

Grady also appears to be one of the GVRs with which Justices Thomas and Scalia might normally take issue.  The Court cited no intervening change in the law since the lower court’s decision.  Instead, it merely explained that the lower court had misapplied existing precedent from 2012 and 2013.  Nevertheless, no justice registered a dissent from last Monday’s decision — the decision was issued “per curiam,” meaning it was unsigned, a relatively unusual practice in and of itself.

The lack of dissent might be explained by the utter indefensibility of the lower court’s decision.  The case concerned a North Carolina law that allowed a judge to require lifetime 24/7 GPS tracking of “recidivist” sex offenders by means of an ankle monitor.  The defendant had been ordered to participate in the program, but he challenged it as a violation of his Fourth Amendment right to be free from unreasonable searches and seizures.  The lower courts rejected his challenge on the ground that the monitoring wasn’t a search at all.  The Supreme Court had no problem reversing that holding, however, explaining that the 2012 case United States v. Jones, though not intervening, clearly held that a physical intrusion constituted a search, regardless of whether the monitoring program was civil or criminal and regardless of what purposes the government had for collecting the information.  The Court then remanded to allow the lower courts to determine whether the search was unreasonable, and therefore a violation of the Fourth Amendment.

While the decision about whether monitoring via ankle bracelet is a search was an easy one that might be one of the few that actually merits GVR treatment, there are much harder questions to come in this context.  The problem is that the Court’s recent precedents in Fourth Amendment doctrine rely on a physical invasion of property, such as placing a GPS tracker on a car or standing on someone’s front porch.  Thus, Grady was an easy case because it involved physically attaching an ankle monitor to the defendant.  The Court hasn’t yet had to decide, however, when conduct that doesn’t involve physical invasion becomes a search.  But with the technology we commonly carry with us today, it would likely be a trivial matter for the government to obtain GPS data about a person’s location without physically intruding — just ask the phone company to check the GPS data from a suspect’s phone, for example.  When that case comes before the Court, it likely won’t be a GVR.

Michael Mestitz is the president of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s managing editors. Contact them at mmestitz ‘at’ stanford.edu and cayres ‘at’ stanford.edu.

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