Virginia Military Institute v. United States

113 S. Ct. 2431, 124 L. Ed. 2d 651, 508 U.S. 946, 1993 U.S. LEXIS 3564, 93 Cal. Daily Op. Serv. 3781, 93 Daily Journal DAR 6444, 61 U.S.L.W. 3787

Opinion

C. A. 4th Cir. Certiorari denied.

Justice Thomas took no part in the consideration or decision of this petition.

Opinion of

Justice Scalia,

respecting the denial of the petition for writ of certiorari.

Whether it is constitutional for a State to have a men-only military school is an issue that should receive the attention of this Court before, rather than after, a national institution as venerable as the Virginia Military Institute is compelled to transform itself. This present petition, however, seeks our intervention before the litigation below has come to final judgment. The Court of Appeals vacated the judgment that had been entered in favor of petitioners, and remanded the case to the District Court for determination of an appropriate remedy. It expressly declined to rule on the “specific remedial course that the Commonwealth should or must follow hereafter,” and suggested permissible remedies other than compelling the Virginia Military Institute to abandon its current admissions policy. United States v. Virginia, 976 F. 2d 890, 900 (CA4 1992).

We generally await final judgment in the lower courts before exercising our certiorari jurisdiction. See, e. g., American Constr. Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 384 (1893); Locomotive Firemen v. Bangor & Aroostook R. Co., 389 U. S. 327, 328 (1967) (per curiam); see generally R. Stern, E. Gressman, & S. Shapiro, Supreme Court Practice §4.18, pp. 224-226 (6th ed. 1986). I think it prudent to take that course here. Our action does not, of course, preclude VMI from raising the same issues in a later petition, after final judgment has been rendered. See, e.g., Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U. S. 251, 257-259 (1916); Hughes Tool Co. v. Trans World Airlines, Inc., 409 U. S. 363, 365-366, n. 1 (1973); Stern, Gressman, & Shapiro, supra, §4.18, at 226; 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure §4036, p. 32 (2d ed. 1988).