As Eugene has famous beneath, the Court docket issued its opinions in the present day in two circumstances concerning the First Modification standing of the social media posts of presidency officers.
One technical however fascinating word is the best way that the Court docket ends its opinion in Lindke:
To the extent that this check differs from the one utilized by the Sixth Circuit, we vacate its judgment and remand the case for additional proceedings in step with this opinion.
One factor that the Court docket generally does when it proclaims a brand new check that may or may not be in step with the decrease courtroom’s opinion is to (1) vacate and (2) remand for proceedings in step with the Supreme Court docket’s opinion. This would possibly nicely outcome within the authentic judgment being reinstated, however the judgment is vacated first, after which the decrease courtroom figures out what to do. However discover that the Court docket doesn’t fairly do this right here—right here it vacates the decrease courtroom’s judgment solely “to the extent that [the Court’s] test differs from the one applied by the Sixth Circuit.”
So what has been vacated? Is that this a partial vacatur? That’s, is the Court docket saying that the decrease courtroom’s judgment is just partly vacated? It is smart to partially vacate an opinion, however I’m not certain how the Court docket might solely partly vacate a judgment. The Sixth Circuit’s judgment was the affirmance of a district courtroom’s grant of abstract judgment to the defendant. If the Court docket envisions a partly-vacated-partly-affirmed-affirmance it would thrust us into the puzzle about precisely what a “judgment unit” is, as mentioned right here by Richard Re.
Or is that this an ambiguous or conditional vacatur? That’s, I take it the Supreme Court docket is perhaps saying that it’s not certain whether or not the decrease courtroom’s judgment must be vacated, as a result of it is not certain precisely what the Sixth Circuit’s check is. (Or maybe totally different justices who joined the unanimous majority learn the Sixth Circuit’s check in another way, whilst all of them agree what the check ought to be.)
On this view when the Sixth Circuit will get the case again, they first must make a threshhold judgment about whether or not their very own judgment has been vacated, after which if the judgment has been vacated the panel must redo the evaluation underneath the brand new check. I perceive how this works, nevertheless it does have the humorous characteristic of successfully delegating to the decrease courtroom the duty of deciding what the mandate of the upper courtroom has been. As a sensible matter which may be completely simple, however as a proper matter it appears odd and never one thing I would seen earlier than. And in future circumstances ambiguous or conditional vacaturs may very well be way more fascinating and even mischief-making.
Once more, as a sensible matter I am certain this can work out straightforwardly on remand, however I wonder if we’ll see extra “To the extent that X, we vacate/reverse” decretal language sooner or later.