Adam's theory is plausible, though my guess is that the Georgia Supreme Court, which heard argument in the underlying case on May 6, had plenty of time to decide and issue an order, with an opinion following later if necessary.

Another plausible reason for the vacate and remand is to deal with the argument in the dissent that the majority was not reviewing the factual findings of a  majority of the three judge court (cf. BCRA case?) for "clear error."  Had the Supreme Court  not remanded, this would be the second redistricting case in a row (the first being Easley v. Cromartie) where the Court would have reversed and found its own facts (creating an onerous burden on the Supreme Court itself in reviewing these cases). By making this all about the lower court applying the wrong legal standard, it remands and avoids the charge, even though the opinion makes it crystal clear what the lower court is to do.

Rick

Adam H. Morse wrote:

In addition to the many good points Rick Hasen brought up about Ashcroft, I think that the vacate and remand, as opposed to actually reversing outright is interesting.  Based on the opinion, I don't see why the remand was necessary.  But many people thought that the Supreme Court wanted to give the Georgia Supreme Court time to decide.  By remanding, they keep that option open.

Adam Morse


Adam H. Morse
Associate Counsel, Democracy Program
Brennan Center for Justice
161 Avenue of the Americas, 12th Fl.
New York, NY  10013-1205
adam.morse@nyu.edu
www.brennancenter.org
212-992-8648
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