Cite as: 516 U. S. 163 (1996)
Scalia, J., dissenting
the confession of error by the Solicitor General," remanding to the District Court for resentencing) (emphasis added); Penner v. United States, 399 U. S. 522 (1970) ("[o]n the basis of a confession of error by the Solicitor General and of an independent review of the record," remanding to the District Court "with instructions to dismiss the indictment").
Our recent practice, however, has been to remand in light of the confession of error without determining the merits, leaving it to the lower court to decide if the confession is correct. As late as 1981, the current Chief Justice, joined by Justice White, objected to this practice. See Mariscal v. United States, 449 U. S. 405, 407 (1981) (Rehnquist, J., dissenting) ("I harbor serious doubt that our adversary system of justice is well served by . . . routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own"). I agree with that position. The practice is by now well entrenched, however. See, e. g., Reed v. United States, 510 U. S. 1188 (1994); Ramirez v. United States, 510 U. S. 1103 (1994). It may be considered a separate category of no-fault V&R.
Finally (and most questionably) we have in very recent years GVR'd where the Solicitor General has not conceded error in the judgment below, but has merely acknowledged that the ground, or one of the grounds, on which the lower court relied was mistaken. See, e. g., Alvarado v. United States, 497 U. S. 543 (1990); Chappell v. United States, 494 U. S. 1075 (1990). That is in my view a mistaken practice, since we should not assume that a court of appeals has adopted a legal position only because the Government supported it. Four Justices now sitting on the Court have disapproved this sort of GVR. See Alvarado, supra, at 545 (Rehnquist, C. J., joined by O'Connor, Scalia, and Kennedy, JJ., dissenting).3
3 The Court misdescribes my position when it states that I would limit GVR's "based on confessions of error that do not purport to concede the whole case" to "cases in which the confession of error concerns a 'legal
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