The Remand Power and the Supreme Court's Role

78 Pages Posted: 18 Mar 2020 Last revised: 24 Dec 2020

Date Written: December 23, 2020

Abstract

“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 proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional 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 effectively countered the critics’ claims. There is a risk that the remand power will therefore be narrowed unnecessarily and without a full defense.

This Article takes a broad look at the remand power, examining it in its theoretical, constitutional, 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 traditions: 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 important constraints on the power to remand therefore come not from supposed rigidities in the Constitution 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. Debates over the remand power therefore implicate deep conflicts over the Supreme Court’s sometimes competing functions of doing justice, developing the law, and supervising a bureaucracy.

Keywords: supreme court, appellate, procedure, remand

Suggested Citation

Bruhl, Aaron-Andrew P., The Remand Power and the Supreme Court's Role (December 23, 2020). Notre Dame Law Review, vol. 96, p. 171 (2020), Available at SSRN: https://ssrn.com/abstract=3542447

Aaron-Andrew P. Bruhl (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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