Why did the Court GVR Andrus v. Texas, rather than grant cert?

The per curiam majority and the dissent disagreed on many facts that would have benefited from argument.

|The Volokh Conspiracy |

I will have plenty to say about Bostock v. Clayton County. Here, I will speculate about a summary decision from Monday's order list: Andrus v. Texas.

The Supreme Court generally requires four votes to grant certiorari. But with five votes, the Court can issue a summary unsigned opinion. The so-called GVR will grant the petition for a writ of certiorari, immediately vacate the lower-court decision, and remand with instructions. The Court will usually GVR cases that are fairly non-controversial. After all, if four Justices are willing to grant the case, that means there are four Justices who think deliberations would be improved by oral argument.

Andrus does not neatly fit that mold. The case involves a Strickland claim of ineffective assistance of counsel. The majority wrote a per curiam decision that stretched 19 pages. And Justice Alito, joined by Justices Thomas and Gorusch, wrote a seven-page dissent. There was a lot of disagreement between the majority and the dissent on the facts of the case. The majority included four footnotes that responded to the dissent.

There were at most six Justices in the majority: Chief Justice Roberts, and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh. We cannot be certain that all six agreed with the per curiam decision. Justices do not need to note their dissent from unsigned GVRs.

I'll presume the Court split 6-3. If the Court was so fragmented, why not simply grant certiorari and hear the case? Justice Alito hinted at this strange disposition. His dissent begins, "The Court clears this case off the docket, but it does so on a ground that is hard to take seriously."

What happened here? Had Chief Justice Roberts and Justices Kavanaugh agreed with the dissenters, they could have formed a 5-member bloc, and turned the majority per curiam decision into a dissent.

My theory? Initially, Justice Sotomayor wrote a dissent from denial of certiorari, as she often does. The opinion begins with a heart-wrenching rendition of the facts, that is classic Sotomayor. This case was floating around forever. Jon Elwood offered this count:

rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21, May 28 and June 4 conferences

Over the course of eight months, Sotomayor was able to persuade Justices Ginsburg, Breyer, and Kagan to grant certiorari. Rather than grant cert, and potentially set a broad Strickland precedent, Roberts and/or Kavanaugh urged a narrow GVR. No real precedent is set, and this messy case–to use Alito's phrasing–is "cleare[d] … of the docket."


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  1. Anyone else wondering when Justice Alito will show up on the Court’s majestic steps with an assault rifle, two bandoliers, Walmart camo, a homemade militia badge, and a Confederate cap, demanding that the other Justices stop working from home and confront him face-to-face, “like sovereign men in the eyes of Christ?”

    1. Between you and the Justice there is a sane man.

  2. Josh,
    Can you explain your Strickland concern more clearly? Under your hypo, Sotomayor’s side would lose 5-4, and Roberts would decide who writes the opinion. If he was concerned about Strickland, could he not just assign it to himself and write a very narrow one? I think there must be an alternate explanation.

  3. I do find these Court Kremlinology exercises pretty fun stuff, though I do think Blackman overestimates Sotomayor’s persuasive power.

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