898
Rehnquist, C. J., dissenting
a response to the motion and then, after the response was received, issuing a written order rejecting the claim. The only question discussed in that order is whether "Sheets should have required a different disposition of this case than the [original] disposition." App. to Pet. for Cert. 10a. And the court resolved that question, concluding "[w]e are of [the] opinion the said petition and motions are without merit." * Id., at 11a.
If this Court has, without any briefs on the merits, concluded that the Court of Appeals' refusal to alter its opinion in the light of Sheets was wrong, it should either set the case for argument or summarily reverse. True, this would require the investment of still more time and effort in a case that is in the federal courts only by reason of diversity of citizenship, see Thomas, supra, at 917 (Rehnquist, C. J., dissenting), but it would have the virtue of explicitly telling the Court of Appeals how to dispose of the case. The Court's decision to grant, vacate, and remand in the light of Sheets, on the contrary, is muddled and cryptic. Surely the judges of the Court of Appeals are, in fairness, entitled to some clearer guidance from this Court than what they are now given.
*Although it is possible to construe this statement as being based on the procedural impropriety of raising such an issue on a motion to recall the mandate, such a construction is nowhere suggested in the order, nor is it the natural implication of the language ("without merit") used by the court below. I see no reason for us not to take the Fourth Circuit's order at face value.
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