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Today the Supreme Court issued an order in Smith v. Scott, a qualified immunity case.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Zorn v. Linton, 607 U. S. ___ (2026) (per curiam). Justice Sotomayor, Justice Kagan, and Justice Jackson would deny the petition for a writ of certiorari.
Smith had been floating around for a long time. It was first distributed to conference back in September 2025. Zorn, the case that caused the GVR, was first distributed to conference in November 2025, and was decided on March 23, 2026. Justice Sotomayor, Kagan, and Jackson dissented from that per curiam order.
The ordering here is unusual. Smith was in docket purgatory before Zorn, held while Zorn was being decided, and then about a month later, the Court GVR’d Smith with three dissents. The GVR did not happen right away, as per usual. The GVR took some time. There were some deliberations to be had. It is really unusual for a Justice to dissent from a GVR after an intervening precedent had been issued. Why shouldn’t the lower court have an opportunity to apply the new precedent in the first instance? Isn’t the usual criticism that the Supreme Court decides too much without giving the lower courts a shot? Perhaps it is even more unusual for the Court to GVR a case based on an un-argued per curiam decision–what some might call the “shadow docket.”
I searched Westlaw for a case where one or more Justices would have denied the writ, following a GVR, but could not find anything. (Update: A few colleagues pointed out some cases that I had missed, though the practice is fairly rare.) It is common for Justices to vote to grant the writ to oppose a GVR. This split happened in Roman Catholic Diocese of Albany. But I can’t recall a GVR accompanied by three Justices voting to deny. The GVR, by itself, does not settle the case. In theory at least, the matter could come back to the Court. But Justices Sotomayor, Kagan, and Jackson wanted to end this QI case right away. Or maybe this was some quiet protest of setting precedent on the emergency docket.
Not the most important news of the day, but I found it curious. Rest assured, no resignations are compelled by this order.
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