On May 7, 2020 the Supreme Court of the United States (SCOTUS) rendered an intriguing decision in United States v. Sineneng-Smith, No. 19–67. Justice Ginsberg wrote for the unanimous court. Justice Thomas authored a concurrence dealing mainly with the substantive issue in the case, the "overbreadth doctrine." The Court's opinion, however, focused on the procedural history of the case, a review of a decision of the Ninth Circuit Court of Appeals. That procedural discussion applies to all adjudicators, an apt reminder of role and purpose.
The Ninth Circuit opinion under review was authored by A. Wallace Tashima (Clinton nominee), and joined by Marsha S. Berzon (Clinton nominee), and Andrew D. Hurwitz (Obama nominee). Judge Huriwitz came to the case late, being assigned by random drawing following the death of Judge Reinhardt. There are those who find the history and appointment of judges interesting; In that regard, it is notable that the SCOTUS decision in this case was unanimous in finding fault with the Circuit panel's foray into advocacy.
The defendant in this criminal case, Evelyn Sineneng-Smith, provided "consulting" to immigrants in California. The Court noted that a jury convicted her of violating a federal law that prohibited anyone to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States . . . ." The Court noted that she charged clients $5,900 each (over $3.3 million total) to complete/submit immigration applications, although she "knew her clients did not meet the application-filing deadline." The applications were thus destined for denial when filed.
Following her conviction, she sought review by the Ninth Circuit. There, she argued that such applications were "often approved despite expiration," and that such applications "would place her clients in line should Congress reactivate the dispensation" (in case the law changes). She also proferred other legal arguments in favor of the reversal of her conviction.
The Circuit Court then "moved" her case "onto a different track." The SCOTUS described that "instead of adjudicating the case presented by the parties, the appeals court" raised "a question Sineneng-Smith herself never raised," a First Amendment overbreadth argument, and invited three organizations (not parties to the litigation) to join the litigation to address this new question. Forbes recently noted that a federal trial court seemingly pursued the same course in yet another case. There is some perception that advocacy is a recurrent judicial theme.
The SCOTUS in Sineneng-Smith held "that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion." It directed the Ninth Circuit to consider the appeal again (on remand) "attuned to the case shaped by the parties rather than the case designed by the appeals panel." (Emphasis added). The use of the word "designed" seems particular and pointed.
The SCOTUS explained that "party presentation" means adjudicators "rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” There is a narrow exception acknowledged when a criminal party is unrepresented, and a court may in that setting "recast pro se litigants’ motions to 'avoid an unnecessary dismissal.'" However, the "general rule" is that parties "know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.”
Quoting Justice Scalia, Justice Ginsberg reminded that “[C]ourts are essentially passive instruments of government.” Furthermore, quoting United States v. Samuels, 808 F. 2d 1298, 1301 (CA 8 1987), Courts:
“do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.”
That does not mean judges can never engage the parties, it is a discretionary decision. A court can provide a modicum of direction. However, the SCOTUS noted that United States v. Sineneng-Smith "scarcely fits that bill."
The SCOTUS acknowledges its own history of calling "for supplemental briefing" and in which it "appointed amicus curiae in recent years." In other words, the SCOTUS has taken the reigns on occasion. However, it noted that none of those cases "bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case." Some will perhaps perceive some level of "do as I say not as I do" in that admission and conclusion.
In this case, the SCOTUS essentially concluded that the Circuit Court designed and constructed a First Amendment argument, invited in the "friends of the court" (amicus) to brief that question, and "Sineneng-Smith’s counsel adopted without elaboration counsel for amici’s overbreadth (1st Amendment) arguments."
Justice Ginsberg acknowledged the defendant's dilemma, noting "how could she (Sineneng-Smith) do otherwise?" The defendant was in search of reversal of her conviction, thus in pursuit of a goal. All litigants, civil and criminal, likewise seek to prevail in court. When the adjudicator defines the path, and signals the way, it is likely the litigants will follow that path to maximize the chance of persuading that authority and prevailing. The Court noted here that Sineneng-Smith "rode with an argument suggested by the panel." Her original appellate issues "fell by the wayside" because the defendant's filed appellate issues simply "did not mesh with the panel’s overbreadth theory." In essence, the party that wishes to prevail will follow the Court's lead and conform to expressed pre-conceptions or conclusions (which should not exist with an unbiased and appropriate court).
The SCOTUS' language is somewhat blunt. It noted that "no extraordinary circumstances justified the panel’s takeover of the appeal." (Emphasis added). The "takeover," Justice Ginserg noted, was not only beyond what was raised by the defendant in the trial, but actually contrary to it. The defendant had not raised overbreadth.
Furthermore, notably, the opinion adds that the SCOTUS "has repeatedly warned" that overbreadth should be sparingly applied. Thus, the appellate court not only designed its own approach but did so with a theory the SCOTUS has said should be narrowly applied. In this vein, both the opinion and Justice Thomas' concurrence suggest some broader doubt as to the future of the overbreadth doctrine generally, see more below.
A court providing some direction or suggestion is not, apparently, per se offensive. The SCOTUS explained that a court may appropriately infer arguments, that it "is not hidebound by the precise arguments of counsel." However, "the Ninth Circuit’s radical transformation of this case goes well beyond the pale." Such guidance (or lack thereof) is perhaps destined to leave the process habitually in a state of grey, with various litigants appreciating an adjudicator's weighty cooperation and others lamenting their struggle against the opponent and bench. For the layperson, one suspects that bright lines and clear parameters are more predictable and understandable than nuance and grey areas.
Justice Thomas specially concurred in the opinion. His concurrence is critical of the appellate court's design and takeover of the defendant's case. However, his opinion focuses primarily on the overbreadth doctrine itself and his reservations concerning it. He explains that the overbreadth
"doctrine provides that a law may be invalidated as overbroad if ‘a substantial number of its applications are unconstitutional, judged' in relation to the statute’s plainly legitimate sweep.’”
He describes and decries the source of this doctrine (saying it "lacks any basis in the Constitution’s text"), the appropriateness of its application ("violates the usual standard for facial challenges, and contravenes traditional standing principles"), and advocates for therefore "revisiting this doctrine in an appropriate case." One wonders how this was not "an appropriate case" for just such a consideration? Well, perhaps in that this issue, in this case, was manufactured and constructed by the appellate court in hindsight.
Addressing the Circuit Court's "Abuse of discretion" (its design and takeover) in this matter, he notes that
“[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation’s laws.”
Therefore "when a court . . . seeks out—an overbreadth challenge, it casts aside the 'judicial restraint' necessary to avoid 'premature' and 'unnecessary pronouncement[s] on constitutional issues.'" He mentions "the general rule against third-party standing," which is based on the converse that standing (a real and personal interest in the case) is required of litigants. This is part and parcel of the Constitutional restriction of "federal courts to actual cases and controversies.” The concurring decision may be seen by some as a harbinger of future narrowing of the overbreadth doctrine application in American jurisprudence.
The activism admonition in Sineneng-Smith should be no different for a trial judge. It is for the parties to build their respective cases, develop their evidence, and present claims and defenses. Dan Fogelberg wrote Hard to Say in 1981; among its lyrics "It's never easy, And it's never clear, Who's to navigate, And who's to steer." But in the world of litigation, it is in fact both easy and clear. The parties to the case are to do both.
The judge's job is neither to substitute her/his judgment for the parties in that regard, to Alexander Haig and simply seize control. Notably, the SCOTUS here was less than absolute in its condemnation, declaring that the takeover in this case was inappropriate while acknowledging that some level of meddling in the right circumstances may instead be acceptable, the grey area. The trial judge's job is nonetheless to keep the game within the rules. It is suggested that a better trial judge rule should be more definite in never designing the parties' litigation. As SCOTUS Chief Justice Roberts once reminded, "nobody ever went to a ball game to see the umpire," see To Do Equal Right.
Judges afford due process. They are charged with evaluating the allegations and legal interpretations brought by the litigants. Those litigants will periodically be creative, and elect arguments that are novel and uncharted. Those litigants will make choices regarding what evidence and what argument to supply. These are often conscious tactical choices, but at times decisions may be less sentient. In either event, they are the parties' choices and the litigation is ultimately the parties'. It is not the judge's role to make up for a particular party or lawyer's shortcomings in either design or execution. The umpire does not suggest the next pitch, nor otherwise counsel the pitcher. The umpire watches the pitch and makes the call.
The Judge's job is to comprehend and weigh the arguments presented, not to disregard the parties and substitute her or his own theories or arguments. It should come as no surprise that a judge's own theory or argument may be deemed more attractive or persuasive by that judge. Everyone, universally, likes their own ideas. When judges step outside the role of arbiter, that threatens our system of justice. When courts are perceived as advocates instead of neutral arbiters, the public faith in an independent judiciary suffers. When courts or adjudicators contrive doctrines, public faith in the adjudicator and the justice system may likewise falter.
Though greeted with little fanfare, United States v. Sineneng-Smith is an important, unanimous, reminder of the role of our adjudication process. It should be a reminder of the critical and venerated role of judges and courts.
