Notre Dame Law Review Volume 96 Issue 1 Article 4 11-13-2020 The Remand Power and the Supreme Court's Role Aaron-Andrew P. Bruhl Associate Dean for Research and Faculty Development and Rita Anne Rollins Professor of Law, William & Mary Law School Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Courts Commons, and the Litigation Commons Recommended Citation 96 Notre Dame L. Rev. 171 (2020) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\96-1\NDL104.txt unknown Seq: 1 5-NOV-20 8:34 THE REMAND POWER AND THE SUPREME COURT’S ROLE Aaron-Andrew P. Bruhl* “Reversed and remanded.” Or “vacated and remanded.” These familiar words, often found at the end of an appellate decision, emphasize that an appellate court’s conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceed- ings rather than wrap up a case is useful for appellate courts because they may lack the institu- tional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme Court has carried the power to remand rather far, vacating and remanding in some cases in which it is unclear whether the lower court erred in any respect. Some of the Justices have sought to narrow the circumstances in which the Court can remand, relying heavily on claims about the nature of Article III “appellate jurisdiction” and the “traditional” practices of appellate courts. When they have responded at all, the defenders of a broad conception of the remand power have not effec- tively countered the critics’ claims. There is a risk that the remand power will therefore be nar- rowed unnecessarily and without a full defense. This Article takes a broad look at the remand power, examining it in its theoretical, consti- tutional, statutory, historical, and prudential dimensions. Contrary to the critics’ contentions, the history is not one in which traditional limitations on appellate jurisdiction have lately been degraded. Rather, the history is more interesting in that it contains two separate appellate tradi- tions: a rigid approach from the common law and a flexible approach from equity. Modern federal appellate procedure is a hybrid of the two, but Congress and the courts have chosen the flexible, equitable approach when it comes to appellate courts’ remedial powers. The most impor- tant constraints on the power to remand therefore come not from supposed rigidities in the Consti- tution or traditional practice but instead from prudential considerations. The prudent exercise of an appellate court’s remedial discretion depends on the court’s role in the judicial system. © 2020 Aaron-Andrew P. Bruhl. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Associate Dean for Research and Faculty Development and Rita Anne Rollins Professor of Law, William & Mary Law School. I gratefully acknowledge the Plumeri Award for Faculty Excellence that supported this research. For helpful comments on prior drafts, I thank J. Maria Glover, Tara Grove, Benjamin Johnson, Richard Re, Joan Steinman, Stephen Wasby, Stephen Yelderman, the audience at the Civil Procedure Workshop hosted by the University of Texas, and the Remedies Discussion Group at the SEALS Annual Meeting. I thank Paul Hellyer for locating court filings and old treatises. I thank Ariana Cheng, Stephanie Cone, Lindsey Folcik, Damian Gallagher, Andrew Hufford, and Mason Shefa for research assistance. 171 \\jciprod01\productn\N\NDL\96-1\NDL104.txt unknown Seq: 2 5-NOV-20 8:34 172 notre dame law review [vol. 96:1 Debates over the remand power therefore implicate deep conflicts over the Supreme Court’s some- times competing functions of doing justice, developing the law, and supervising a bureaucracy. INTRODUCTION .................................................. 173 R I. THE IMPORTANCE AND APPEAL OF REMANDS ................ 178 R A. Systemic Role of Remands ............................... 178 R B. Remands’ Attractions for Olympian, Agenda-Setting Courts . 180 R 1. Remands That Aid the Making and Shepherding of the Law ....................................... 181 R 2. Remands That Ease the Tasks of Error Correction and Supervision .................................. 183 R C. Remands in the Courts of Appeals ....................... 184 R II. THE LAW AND HISTORY OF REMANDS....................... 185 R A. Section 2106 and Its Predecessors ........................ 186 R 1. The Rigidity of Appellate Dispositions at Common Law.............................................. 187 R 2. Federal Appellate Remedies from the Judiciary Act to § 2106 ........................................ 191 R B. Article III and the Limits of “Appellate Jurisdiction” ....... 196 R 1. The Framing of Appellate Jurisdiction ............ 198 R 2. The Expansive Meaning of Appellate Jurisdiction in Early Interpretations and Practice ............. 200 R C. Structural Constitutional Analysis ....................... 204 R D. Judgments and Opinions ............................... 206 R E. Dignity and Fault ..................................... 207 R F. External Limits on Appellate Dispositions ................. 209 R G. The Supervisory Power as an Additional Source of Authority 210 R 1. Supervisory Power as a Power to Impose Rules for Fashioning Opinions ............................. 211 R 2. Supervisory Writs as an Alternative to Remands After Judgment .................................. 212 R H. The Remand of Horribles ............................... 215 R III. APPLICATION OF LEGAL CONSTRAINTS AND PRUDENTIAL GUIDELINES TO PARTICULAR CATEGORIES OF REMANDS ...... 216 R A. Remands That Have Properly Escaped Criticism ........... 217 R 1. Remands for Application of the Correct Standard or for Consideration of Unreached Alternative Grounds ......................................... 217 R 2. Intervening Events: The Ordinary GVR ........... 219 R 3. Remand for Clarification of Jurisdiction or Otherwise to Permit Meaningful Review .......... 220 R 4. Remand for Entry of a New Judgment to Reset the Time to Appeal .................................. 223 R \\jciprod01\productn\N\NDL\96-1\NDL104.txt unknown Seq: 3 5-NOV-20 8:34 2020] t h e r e m a n d p o w e r a n d t h e supreme court’s role 173 B. Justice-Ensuring Remands: Two Categories That Are Controversial But Should Not Be ........................ 224 R 1. Remands Where the Lower Court May Have Overlooked a Dispositive Issue ................... 225 R 2. Remands in Light of Confessions of Error ........ 230 R C. Law-Shepherding Remands: Categories That Do Raise Hard Questions ............................................. 233 R 1. Remanding for Resequencing .................... 234 R a. When There Is a Legally Required or Preferred Sequence .......................... 234 R b. When a Different Ground of Decision Is Attractive for Other Reasons ................. 236 R 2. Remanding to Determine Cert-worthiness ........ 240 R 3. Remands That Do Not State the Proper Standard. 240 R 4. Face-Saving (or Institution-Preserving) Remands . 243 R D. Summary: The Remand Power and the Court’s Role........ 245 R CONCLUSION .................................................... 246 R INTRODUCTION When an appellate court reverses a decision of a lower court, the ques- tion of the proper appellate remedy then arises. Sometimes the appellate court puts an end to the case by entering the appropriate judgment itself or by telling the lower court how to dispose of the case.1 More commonly, though, at least in modern federal practice, the appellate court will remand the case—that is, send it back to the lower court—in a more open-ended way, for whatever further proceedings the lower court deems proper.2 In what is perhaps the most famous remand in the Supreme Court’s history, the Court’s remedial decision in Brown v. Board of Education did not decree the immediate desegregation of public schools but instead remanded to the lower courts for them to apply Brown’s principle in light of varied local condi- tions so as to bring about desegregation “with all deliberate speed.”3 Whether to remand at all, and how much instruction to give the lower court, obviously can affect the resolution of the specific dispute at hand, and 1 E.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 149–54 (2000) (clari- fying standard for judgment as a matter of law under Federal Rule of Civil Procedure 50, applying the standard to the facts, and reversing without remanding); Agostini v. Felton, 521 U.S. 203, 240 (1997) (remanding with instructions that the district court vacate its injunction); Haynes v. United States, 390 U.S. 85, 101 (1968) (reversing the defendant’s conviction rather than remanding for further proceedings because any remand “must inev- itably result in the reversal of petitioner’s conviction”); Martin v. Hunter’s Lessee, 14 U.S. (1 Wheat.) 304, 362 (1816) (reversing state supreme court and affirming state trial court). 2 See,