Alvarado v. United States/Dissent Rehnquist

Chief Justice REHNQUIST, with whom Justice O'CONNOR, Justice SCALIA, and Justice KENNEDY join, dissenting.

I have previously expressed my doubt as to the wisdom of automatically vacating a Court of Appeals judgment favorable to the Government when the Government confesses error in this Court. See Mariscal v. United States, 449 U.S. 405, 406, 101 S.Ct. 909, 909-10, 66 L.Ed.2d 616 (1981) (dissenting opinion). Today the Court carries this unfortunate practice to new lengths: The Government has not confessed error in this case, but instead has taken the position that the judgment of the Court of Appeals was correct and that certiorari should be denied.

The Government's brief in opposition contains the following statement:

"Although petitioner's Batson claim lacks merit, we agree     with petitioner that the court of appeals' analysis departed      from the general approach to discrimination in jury selection      that this Court marked out in Batson."  Brief in Opposition      12.

The Court seizes upon this concession that the "analysis" of the Court of Appeals may have been wrong as a justification for vacating the judgment. But the entire thrust of the Government's brief is that the result reached by the Court of Appeals was correct.

A confession of error is at least a deliberate decision on the part of the Government to concede that a Court of Appeals judgment in favor of the Government was wrong. In the present case, however, we have only the above-quoted statement of the Government in its brief opposing a grant of certiorari. If we are now to vacate judgments on the basis of what are essentially observations in the Government's brief about the "approach" of the Court of Appeals in a particular case, I fear we may find the Government's future briefs in opposition much less explicit and frank than they have been in the past. Since we depend heavily on the Government in deciding whether to grant certiorari in cases in which the Government is a party, the Court will be the loser as a result.