Cite as: 516 U. S. 163 (1996)
Per Curiam
While a large proportion of this Court's GVR orders fall within these categories, we find that, especially as the dissent construes them, they are too narrow to account for the full extent of our actual practice. We find two aspects in particular of the dissent's approach too restrictive. First, the dissent would insist that only matters that the lower court had no "opportunity" to consider can be the basis for GVR orders. Second, it would impose special restrictions as to when the Court may GVR in light of changes of position by litigants.
Justice Scalia's dissent concedes—correctly, we believe—that its first category—"intervening factor[s]"— must be extended to include at least Supreme Court decisions rendered so shortly before the lower court's decision that the lower court had no "opportunity" to apply them. Post, at 181. The dissent does not explain, however, why what the lower court had an "opportunity" to consider should be decisive, or how its "opportunity" is to be assessed. In Robinson v. Story, 469 U. S. 1081 (1984), we GVR'd for further consideration in light of a Supreme Court decision rendered almost three months before the summary affirmance by the Court of Appeals that was the subject of the petition for certiorari. Were those three months sufficient "opportunity" for the court to apprise itself (or be apprised by the parties) of the new, potentially relevant Supreme Court decision? If Robinson was properly GVR'd, we have difficulty understanding the dissent's objection to our GVR order today in Stutson, where, as in Robinson, the Court of Appeals wrote no opinion to show whether or how it considered a precedent of ours that the District Court had had no opportunity to consider. In both cases, the Court of Appeals "might (or might not) have relied on a standard [nonapplication of the prior Supreme Court decision] that might (or might not) be wrong [and] that might (or might not) have affected the outcome." Post, at 185 (Scalia, J., dissenting). The only pertinent difference that we can discern between
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