190
Scalia, J., dissenting
Jurisdiction," I think it conveys, with respect to the latter, the traditional accoutrements of appellate power. There doubtless is room for some innovation, particularly such as may be necessary to adapt to a novel system of federalism; but the innovation cannot be limitless without altering the nature of the power conferred.
Not only does the Court reject any constitutional limitation upon its power to vacate; it is unwilling to submit to any prudential constraint as well. Even while acknowledging the potential for "unfair[ness] or manipulat[ion]" and professing to agree that "our GVR power should be exercised sparingly," ante, at 168, 173, the Court commits to no standard that will control that power, other than that cloak for all excesses, "the equities," ante, at 168; see ante, at 173, 174, 175; post, at 196. We may, as the Court now pronounces, set aside valid judgments not merely when they are wrong, not merely when intervening events require that someone (either the lower court or we) reconsider them on new facts or under new legal criteria, not merely when it is ambiguous whether we have power to review them, not merely when the United States concedes that the judgment below (or one of the points of law relied upon below, or even one of the points of law possibly relied upon below) is wrong; but whenever there is "a reasonable probability that the decision below rests upon a premise that the lower court would reject if given the opportunity for further consideration." Ante, at 167. The power to "revis[e] and correc[t]" for error, Marbury v. Madison, 1 Cranch 137, 175 (1803), has become a power to void for suspicion. Comparing the modest origins of the Court's no-fault V&R policy with today's expansive dénouement should make even the most Pollyannish reformer believe in camel's noses, wedges, and slippery slopes.
The Court justifies its approach on the ground that it "alleviates the potential for unequal treatment that is inherent in our inability to grant plenary review of all pending cases
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