As Eugene noted below, the Court today issued its opinions in two cases on the First Amendment status of social media posts by government officials.
A technical but interesting note is how the Court concludes its opinion in the Lindke case:
To the extent this test differs from that applied by the Sixth Circuit, we reverse its ruling and remand the case for further proceedings consistent with that opinion.
One thing the Court commonly does when announcing a new test that may or may not be consistent with the lower court’s opinion is to (1) vacate and (2) remand for proceedings consistent with the Supreme Court’s opinion. This could result in the original sentence being reinstated, but first the sentence is overturned and then the lower court decides what to do. But note that the Court does not do just that in this case: here it overturns the lower court’s ruling only “to the extent that [the Court’s] test differs from that applied by the Sixth Circuit.”
So what was left free? Is this a partial stay? That is, is the Court saying that the lower court’s ruling was only partially overturned? It makes sense to partially release a opinion, but I’m not sure how the Court could only partially overturn a ruling. The Sixth Circuit’s ruling was an affirmation of a district court’s grant of summary judgment to the defendant. If the Court were to provide a partially vacant and partially affirmed statement, it could push us into the puzzle of what exactly a “unit of judgment” is, as discussed here by Richard Re.
Or is it an ambiguous or conditional vacatur? That is, I assume the Supreme Court is saying that it’s not sure whether the lower court’s ruling should be overturned, because it’s not sure exactly what the Sixth Circuit’s test is. (Or perhaps different justices who joined the unanimous majority read the Sixth Circuit’s test differently, even though they all agree on what the test is it should be.)
With this in mind, when the Sixth Circuit takes up the case, it must first make a threshold judgment as to whether its judgment has been vacated, and then, if the judgment has been vacated, the panel must redo its analysis according to the new test. I understand how it works, but it has the funny feature of effectively delegating to the lower court the task of deciding what the higher court’s mandate was. From a practical point of view it may be perfectly simple, but from a formal point of view it seems strange and was not something I had ever seen before. And in the future, ambiguous or conditional vacaturs could be much more interesting and even harmful.
Again, in practice I’m sure this will work directly on remand, but I wonder if we’ll see more “To the extent that X, we release/reverse” decretal language in the future.