Text, history, and party presentation

A Second Opinion is a recurring series by Haley Proctor on the Second Amendment and constitutional litigation.

As has been observed by Rory Little at SCOTUSblog, the party presentation principle is on the rise at the Supreme Court. The principle stands for the simple idea that the parties control their case – what claims they bring, what defenses they raise, what arguments they make, what evidence they present – and that these choices potentially limit how courts may decide the case. The party presentation principle presents a puzzle for courts in cases that involve matters of broader public interest, like gun rights. In this month’s column, I will introduce the principle and then explore its implications for Second Amendment litigation and beyond.

The party presentation puzzle

Courts are not closed systems whose only inputs are those the parties put in them. Judges know the law. Many enjoyed storied careers as litigators before ascending to the bench. They have law clerks. And law libraries (digital or otherwise). Jurors read the news. They live in the community where the crime occurred or the dispute arose. They generally know something about the events of the case before them: they have seen how well a full moon can illuminate a scene, have felt their brakes seize up on an icy road, have witnessed neighborhood knife fights from their back stoops.

Still, recognizing party control liberates courts to decide parties’ disputes on the terms the parties set. Judges need not send their own investigators to the scene of the crime. They don’t even have to send their own law clerks to the library. (A notable exception: judges must confirm the court has “subject matter jurisdiction” over the case, even if the parties agree that it does.)

The question is, to what extent must (and should) judges and jurors sideline their understanding of the law or the world in favor of the version the parties present to them?

The Supreme Court routinely observes that it is assuming some feature of the case that the parties do not dispute because the parties do not dispute it. A notable example (especially notable because the assumption is now in doubt) is Free Enterprise Fund v. Public Co. Accounting Oversight Bd.: “The parties agree that the Commissioners cannot themselves be removed by the President except under the Humphrey’s Executor standard of ‘inefficiency, neglect of duty, or malfeasance in office,’ and we decide the case with that understanding.”

Other times, though, the court takes the wheel. No party invited the court to develop the Erie Doctrine, for example. (For readers unfamiliar with Erie Railroad v. Tompkins, I’ll spare you to gory details, but suffice to say, it was a big deal.) And Illinois at one point rejected the argument with which it prevailed in Trump v. Illinois.

The Supreme Court typically either accepts or overrides the parties’ framing of the dispute in order to be able to reach and clarify an important issue of law (or avoid one it is not prepared to resolve). But there are signs that it is unwilling to give lower courts the same latitude.

In two cases over the past several years, the justices chastised courts of appeals for not adhering to the party presentation principle and basing their rulings on arguments not raised by the parties.

• In United States v. Sineneng-Smith, the defendant had argued that the government infringed her First Amendment rights by prosecuting her for engaging in protected First Amendment activity. When that argument did not succeed, the U.S. Court of Appeals for the 9th Circuit appointed amici to argue that, even if Ms. Sineneng-Smith’s conduct was not protected, the statute under which she was prosecuted was unconstitutional because it prohibited protected First Amendment conduct. The Supreme Court held that the Ninth Circuit “departed so drastically from the principle of party presentation as to” abuse its discretion.
• In Clark v. Sweeney, the court summarily reversed the U.S. Court of Appeals for the 4th Circuit for going beyond the legal theories a prisoner had advanced in support of his habeas petition.

Both decisions leave unanswered many questions about the “scope and effect” of the party presentation principle: just how narrowly and strictly does party presentation constrain courts? Answering this question is difficult because the source of the principle is also unknown. Many of the structures and norms that once bound courts to party presentation have been lost as the country has increasingly looked to courts as arbiters of public policy disagreements, rather than resolvers of concrete legal disputes between contending parties.

When the dispute is (the hypothetical parties of) Smith v. Jones, the party presentation principle is intuitive. When it is Smith v. Jones-and-the-future-of-the-administrative-state or Smith v. Jones-and-the-security-of-our-borders, party control feels harder to justify. That is especially true now that the Supreme Court takes so few merits cases, meaning that many years may elapse between its interventions in a given area of the law.

Party presentation and the Second Amendment

In an earlier column, I described how the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen shifted the focus in Second Amendment litigation to the “Nation’s historical tradition of firearm regulation.” In response to concerns that judges may have trouble identifying features of the “Nation’s historical tradition of firearm regulation,” the majority opinion pointed in a footnote to Sineneng-Smith and the “principle of party presentation”: “Courts are thus entitled to decide a case based on the historical record compiled by the parties.”

This burden will typically fall on the government, as it must justify its firearm regulation by showing that it is consistent with historical tradition. But what happens if the government does a bad job marshalling evidence? Or the government presents faulty evidence and the rights-claimant fails to call out the government on it?

Although the party presentation principle entitles the court to rely on the historical record the parties compile, I do not think it limits the court to that record. It is one thing for a court to reframe the case for the parties. It is another to say that, within the framework constructed by the parties, the court can consider only the information the parties supply.

Historical evidence is meant to illuminate the meaning of the Second Amendment, and the meaning of the Second Amendment is a question of law. Judges are presumed to know the law (including so-called “legislative facts” like the history of firearm regulation) without party assistance, and sometimes they fulfill that expectation by conducting independent research. Of course, judges attuned to the truth-seeking benefits of adversarial presentation should approach independent research with caution. But ultimately, they are sworn to uphold the law and ought not to be bound by an inaccurate presentation of its content.

Consistent with that responsibility, the Supreme Court has extensively analyzed Founding- and Reconstruction-era firearm regulation in its Second Amendment jurisprudence. Amici fill every Second Amendment docket with historical research that is deep and wide-ranging. At least in the Second Amendment context, party presentation is unlikely to hamper the search for truth about the law. This should be true for the lower courts as well.

Party presentation and precedent

Most conversations about party presentation focus on how it should constrain the decision in the case the parties are presenting. But concerns about the effects of the party presentation principle center on its implications for future decisions: Poor party presentation may produce poor precedents. That explains why the principle weakens as parties move up the appellate ladder and decisions gain precedential effect.

Recognizing this reality need not lead us to reject the principle, however. Instead, it might bring us closer to Justice Clarence Thomas’ position: courts should be prepared to revisit prior decisions when it becomes clear that those decisions were incorrect.

Many object to this approach on the ground that it will destabilize the law. But as I have written elsewhere, the Supreme Court’s turn to text and history lessens the need for a strong form of precedent. Text and history are objective and unchanging and so supply their own stabilizing force. Consider the Second Amendment: the historical traditions that give shape to a right important enough to be enshrined in the Constitution are unlikely to be hiding in the shadows. Judges searching for legal meaning in text and history are still bound to err, but their conclusions will change less and less often than the conclusions of judges searching for legal meaning in subjective notions of justice and the common good.

Weakening the force of precedents has this advantage: it takes much of the pressure off of party presentation. More cases will return to the normalcy of Smith v. Jones. And in these cases, we should be content to leave things to Smith and Jones.