On appeal, the court found that Washington's GVRS
was rationale and did not violate the inmates First Amendment Rights.
Yet the Sixth Circuit has remained defiant, once again affirming the district court's order after reconsidering its prior opinion in light of Comcast, which it thought "has limited application." (81) The court brushed aside the Supreme Court's GVR orders as mostly insignificant.
Instead, it seemed to read Comcast as merely "reaffirm[ing] the settled rule that liability issues relating to injury must be susceptible of proof on a classwide basis...." (84) A mere reaffirmance of settled law, however, would not have indicated to the Supreme Court that there was a "reasonable probability" of reversal in light of Comcast--the standard for a GVR order.
The Court has asserted that GVR'ing the Solicitor General's rationale-confession-of-error has a few important benefits.
GVR'ing without independently reviewing the merits of a rationale-confession-of-error assumes that an actual error has occurred.
The Appendix presents a list of rehearing GVRs from 1965 to present, classified according to the above criteria.
As with missed GVRs, these cases also seem, in the main, fairly easy to justify.
This is an opportune moment to think more deeply about GVRs
. First, the last several years have seen an unprecedented, massive surge in GVRs
, due largely to the need to implement a line of criminal-sentencing decisions that together represent a revolution in the law.
General recommended that the Court GVR
for further consideration, but
154, 161 (1944) (describing the GVR
as "[al customary procedure").