Thursday, May 7, 2020
Today the Supreme Court issued an interesting decision in United States v. Sineneng-Smith, a case in which the Ninth Circuit held that the federal statute making it a crime to encourage or induce illegal immigration for commercial advantage or private financial gain was facially overbroad in violation of the First Amendment. Justice Ginsburg’s unanimous opinion did not address this constitutional question, however. Rather, the Court held that the Ninth Circuit had “departed so drastically from the principle of party presentation as to constitute an abuse of discretion,” and remanded the case “for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.”
Neither party had raised the First Amendment overbreath issue in either the district court or the initial round of Ninth Circuit briefing. But “[i]nstead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel,” including “whether the statute of conviction is overbroad . . . under the First Amendment.” In today’s opinion, the Supreme Court reasons that “[n]o extraordinary circumstances justified the panel’s takeover of the appeal.” Although Justice Ginsburg recognizes that “a court is not hidebound by the precise arguments of counsel,” she writes that “the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”
Sineneng-Smith is a criminal case, but Justice Ginsburg’s opinion notes that this principle of party presentation applies in civil litigation as well:
In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), “in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” Id., at 243.
Footnote 3, in fact, cites to Ben Kaplan’s 1960 article, Civil Procedure—Reflections on the Comparison of Systems, 9 Buffalo L. Rev. 409, for the proposition that the U.S. system “exploits the free-wheeling energies of counsel and places them in adversary confrontation before a detached judge” while the “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal.”
In footnote 4, the Court does acknowledge some tension between this “principle of party presentation” and the Supreme Court’s own practice: “In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.” That addendum, which begins at p.10 of the slip opinion, is an interesting resource in and of itself.
Justice Thomas writes a concurring opinion, arguing that the Ninth Circuit’s decision “violates far more than the party presentation rule. The merits of that decision also highlight the troubling nature of this Court’s overbreadth doctrine.”