dissenting.

I continue to believe that it is unfair to litigants and damaging to the integrity and accuracy of this Court’s decisions[*5] to reverse a decision summarily without the benefit of full briefing on the merits of the question decided. Buchanan v. Stanships, Inc., 485 U. S. 265, 269-270 (1988) (Marshall, J., dissenting); Commissioner v. McCoy, 484 U. S. 3, 7-8 (1987) (Marshall, J., dissenting); Montana v. Hall, 481 U. S. 400, 405-410 (1987) (Marshall, J., dissenting).

The Rules of this Court urge litigants filing petitions for certiorari to focus on the exceptional need for this Court’s review rather than on the merits of the underlying case. Summary disposition thus flies in the face of legitimate expectations of the parties seeking review by this Court and deprives them of the opportunity to argue the merits of their claim before judgment. Moreover, briefing on the merits leads to greater accuracy in our decisions and helps this Court to reduce as much as is humanly possible the inevitable incidence of error in our opinions. Finally, the practice of summary disposition demonstrates insufficient respect for lower court judges and for our own dissenting colleagues on this Court.

It is my view that when the Court is considering summary disposition of a case, it should, at the very least, so inform the litigants and invite them to submit supplemental briefs on the merits. I remain unconvinced that this slight modification of our practice would unduly burden the Court. The benefits of increasing the fairness and accuracy of our decisionmaking and the value of according greater respect to our colleagues on this and other courts more than outweigh any burden associated with such a modest accommodation.

I dissent.

with whom

Because courts usually do not award remedies in cases that are moot, the novel legal issues presented here do not require this Court’s plenary consideration, at least at this time. I therefore would just deny the petition for certiorari. Inasmuch, however, as the Court has chosen to grant the peti[*6]tion, I would give the case plenary consideration with full briefing and argument. Because I believe that summary reversal is inappropriate, I dissent.

The Court summarily reverses the Court of Appeals’ judgment for being contrary to “our holding in Hewitt [v. Helms, 482 U. S. 755 (1987)],” ante, at 3. That case clearly does not control here. In Heivitt, the plaintiff never obtained a “formal judgment in his favor,” 482 U. S., at 761, and the question there was whether he nonetheless could qualify as a “prevailing party,” thereby making him eligible for attorney’s fees under 42 U. S. C. § 1988. The Court ruled that he could not because nothing about his lawsuit changed the defendants’ behavior towards him.

Here, however, respondent did obtain a “formal judgment in his favor,” although he no longer was incarcerated at the time. Thus, this case presents the question whether to be a “prevailing party” it is enough to win one’s lawsuit. Heivitt did not decide this question, nor could it have, since it did not concern a plaintiff who had obtained “all or some of the relief he sought through a judgment.” 482 U. S., at 760.

The Court quotes a passage from Hewitt and construes it as stating that the entry of a declaratory judgment, without practical consequences, would not suffice for the purposes of § 1988. Ante, at 3-4. In context, however, this passage simply bolsters the Court’s point about when a nonfinal “statement of law” in a judicial opinion may be deemed the functional “equivalent of declaratory relief” under § 1988. 482 U. S., at 761. Indeed, it would be ironic if this passage purported to resolve a question not before the Court in Hewitt, as it extols the “judicial pronouncement” limited to resolving the particular “case or controversy” at hand rather than rendering an “advisory opinion” on a question not presented by the facts of the immediate dispute. Ibid. Thus, I believe that the Hewitt opinion was not meant to tell us, or the Court of Appeals, how to decide this case. But even if it did, I would not summarily reverse the Court of Appeals on[*7] this basis for the very reason that our own pronouncements lose their controlling authority when they attempt to decide questions not before the Court at the time.^[1]

Quite apart from the Court’s interpretation of Hewitt, I have doubts about its interpretation of the term “prevailing party” in § 1988. In ordinary usage, “prevailing” means winning. In the context of litigation, winning means obtaining a final judgment or other redress in one’s favor. While the victory in this case may have been an empty one, it was a victory nonetheless. In the natural use of our language, we often speak of victories that are empty, hollow, or Pyrrhic. Thus, there is nothing anomalous about saying that respondent prevailed although he derived no tangible benefit from the judgment entered in his favor. Certainly the language of the statute does not so obviously compel a contrary conclusion as to warrant summary reversal.^[2]

It is true that respondent here should not have obtained his judgment, since his case had become moot. But the fact that a party should not have “prevailed” ordinarily would not deprive him of attorney’s fees.^[3] Perhaps an exception should be made when the defect in the judgment goes to the court’s jurisdiction, as mootness does, but the resolution of this issue[*8] is not obvious.^[4] It surely is not one that should be decided without benefit of briefing and oral argument.

I dissent from the Court’s summary disposition of this case.