Supreme Court Issues Rare GVR Order With Three Justices Dissenting in Qualified Immunity Case

The U.S. Supreme Court issued an unusual GVR (grant, vacate, remand) order in Smith v. Scott, a qualified immunity case, with three Justices dissenting from the decision.

The Court granted the petition for a writ of certiorari, vacated the lower court's judgment, and remanded the case 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).

Justices Sotomayor, Kagan, and Jackson dissented from the order, stating they would deny the petition for a writ of certiorari.

Background and Timeline

Smith v. Scott had been pending for an extended period. The case was first distributed to conference in September 2025.

Zorn v. Linton, the case that prompted the GVR in Smith, was first distributed to conference in November 2025 and was decided on March 23, 2026. Justices Sotomayor, Kagan, and Jackson also dissented from the per curiam order in Zorn.

Unusual Nature of the GVR Order

The GVR order in Smith v. Scott is notable for several reasons:

• Smith was in "docket purgatory" before Zorn was decided, held while Zorn was pending.
• The GVR did not occur immediately after Zorn was decided, as is typical. Instead, there was a delay, suggesting deliberations took place.
• It is rare for Justices to dissent from a GVR after an intervening precedent has been issued. The dissenting Justices questioned why the lower court should not have the opportunity to apply the new precedent first.
• The GVR was based on an un-argued per curiam decision, which some critics refer to as the "shadow docket."

Upon searching Westlaw, the author found no prior cases where one or more Justices dissented from a GVR following an intervening precedent. While it is common for Justices to vote to grant a writ to oppose a GVR (as seen in Roman Catholic Diocese of Albany), the author could not recall a GVR accompanied by three Justices voting to deny the petition.

Implications of the Order

The GVR order does not settle the case. Theoretically, the matter could return to the Supreme Court. However, Justices Sotomayor, Kagan, and Jackson sought to end the qualified immunity case immediately.

Some speculate the dissent may represent a protest against the use of per curiam rulings and the emergency docket to set precedent.

The order is not among the most significant of the day, but it has drawn attention for its unusual nature. No resignations are compelled by this order.