The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

The 3-3-3 Court GVRs George-Floyd-like Case After Chauvin Sentencing

Justices Alito, Thomas, and Gorsuch dissent charge that the majority is "unwilling . . . [to] bear[] the criticism that would inevitably elicit" from denying cert.


Lombardo v. City of St. Louis presents an excessive force case. Officers held down a prisoner by placing force on his back. According to the record he said "It hurts. Stop." After 15 minutes in this position, the prisoner stopped breathing. He was transported to the hospital, and was pronounced dead. The parallels to the George Floyd case should be obvious.

The Eighth Circuit rejected the excessive force claim. The prisoner's parents filed a cert petition in September 2020. The briefing completed in November. The case was rescheduled 13 times. Not relisted. Rescheduled. In other words, the case never actually came up for conference. At least one of the Justices simply requested more time. In April 2021, the petitioner filed a supplemental brief that notified the Court about Derek Chauvin's guilty verdict. After the next conference, the Court requested the record from the 8th Circuit. On June 1, the Court received "1 envelope." (The record could not have been too extensive).

The case was then relisted several times. Today, the Court GVR'd the Eighth Circuit. There was a four page per curiam opinion. Justice Alito dissented, joined by Justices Thomas and Gorsuch.

Before I get to the merits, I want to talk about the timing. First, this case was on the Court's docket for the entire Term. There must have been an aggressive campaign to do something about the petition. And that campaign–my guess from Justice Sotomayor–took some time. She may have floated a draft dissental, designed to shame her colleagues. Second, further complicating this case was the Chauvin trial. A Supreme Court decision, stating that this sort of tactic was "excessive force" under the Eighth Amendment could have affected the lower court proceedings. Here, the Court issued its decision two days after the Chauvin sentencing. Third, I would expect this sort of controversial shadow docket entry to be held for the so-called "cleanup" list, which usually comes on the Monday after the term concludes. But the Court dropped it today. Perhaps the Court was trying to preempt a very negative final day of the term. And by negative, I mean conservative. Yes, the Court staggers decisions to minimize negative press coverage from the mainstream media.

Now, onto the merits. This opinion is a very, very strange candidate for a GVR. The Court doesn't exactly say that the Eighth Circuit erred. Rather, the Court flyspecks specific sentences in the panel's opinion. Here is the crux of the analysis:

Although the Eighth Circuit cited the Kingsley factors, it is unclear whether the court thought the use of a prone restraint—no matter the kind, intensity, duration, or surrounding circumstances—is per se constitutional so long as an individual appears to resist officers' efforts to subdue him.

Why would the Court even presume that deficiency? The word "per se" does not appear anywhere in the cert petition. The Court simply made up this ground for reversal. And the Eighth Circuit could cure this defect in about three sentences. And it probably will.

Justice Alito's dissent was savage. He writes that the Supreme Court seldom GVRs cases based on specific factual questions. This case was not a good candidate for a GVR. But if there was an actual legal question to resolve, the Court should have granted cert. Yet, Alito charges that the majority takes the "easy" way out:

The Court, unfortunately, is unwilling to face up to the choice between denying the petition (and bearing the criticism that would inevitably elicit) and granting plenary review (and doing the work that would entail). Instead, it claims to be uncertain whether the Court of Appeals actually applied the correct legal standard, and for that reason it vacates the judgment below and remands the case.

This course of action may be convenient for this Court, but it is unfair to the Court of Appeals. If we expect the lower courts to respect our decisions, we should not twist their opinions to make our job easier.

We have two respectable options: deny review of the fact-bound question that the case presents or grant the petition, have the case briefed and argued, roll up our sleeves, and decide the real issue. I favor the latter course, but what we should not do is take the easy out that the Court has chosen. 

Several times this term, the Court's three conservatives have criticized their colleague for shirking their responsibilities to avoid criticism. It's stunning that these internecine conflicts spill out into the open.

We cannot be certain which Justices voted to GVR the case. My suspicion: Justice Sotomayor proposed this punt to keep the case alive, and the Chief went along with it. No meaningful precedent is set. Everyone wastes time. And the Court gets good publicity. Check, Check, Check for the Chief. I have to imagine Justice Kavanaugh was happy to join this compromise. He virtue signaled loudly about race in Alston, and received plaudits for it.

What about Justice Barrett? During the confirmation hearing, she recounted how she discussed George Floyd's death with her children. Justices are not automatons. These sorts of issues can have a bearing on their rulings. Indeed, I'm not sure that Justice Barrett will vote with the Court's conservative on affirmative action. The 3-3-3 Court is still forming.

In the end, this case goes back to the Eighth Circuit. The panel will almost certainly rule against the petitioners. At that point, Justice Sotomayor can publish her dissent.