Last December I published a column entitled “Party presentation: a mysterious new rule?”, addressing a summary reversal in a criminal case, Clark v. Sweeney. On May 26, the court summarily reversed the lower court in another case, Margolin v. NAIJ, citing the same “party presentation principle,” which it now referred to as a “rule.” Then two days later, Justice Amy Coney Barrett, writing for a 6-3 majority in a criminal sentencing case, Fernandez v. United States, relied on a different idea, an “anticircumvention principle.” (Notably, Steve Vladeck this week wrote about the court’s confusing use of yet another principle, the “Purcell principle,” related to election law.)
Where do these principles come from? No constitutional or statutory text expresses them. Are they “rules” that dispositively decide cases, or merely standards subject to court discretion? Given their apparent case-dispositive importance, the court should precisely describe and define these ideas, and particularly if employed as “rules” to justify keeping a person in prison.
The court’s recent use of “principles” to decide criminal cases
Back in November in Clark v. Sweeney the court reversed a habeas decision of the U.S. Court of Appeals for the 4th Circuit that had ordered a new trial in a second-degree murder case. Without noted dissent, the court wrote that the circuit had “departed dramatically from the principle of party presentation” by “relying on a claim that Sweeney never asserted” and “that the State never had the chance to address.” This “principle” appears to rest on the idea that courts should not raise new issues not actually presented by the parties. As I noted last December, the court did not address the actual legal reasoning of the 4th Circuit but instead reversed merely on this procedural point. I urged the court to explain exactly what the principle was and whether it has exceptions. I noted that law and history are full of examples where judges have gone outside the parties’ arguments, for example to correct “miscarriages of justice,” and that this can correct for, frankly, inept lawyering. If “no going beyond party presentation” is now a dispositive “rule,” I noted that it has no textual support in either a statute or Article III of the Constitution (which extends to all federal questions).
Six months later in Margolin the court again wielded this apparently powerful tool, to summarily reverse the 4th Circuit (a favorite target these days) for “violat[ing] the principle of party presentation” by relying “on an issue the parties had not raised” and “without giving either side a chance to address its theory.” Directly invoking Clark v. Sweeney, the court now described this principle as a “rule,” quoting a solo opinion by Justice Antonin Scalia from 34 years ago.
At the tail end of that concurrence, Scalia had claimed that, absent this idea, our legal system would be an “inquisitorial” one. But there is nothing “inquisitorial” about judges trying to find the correct answer even if lawyers have not. And, in any event, in the very next sentence, Scalia noted that he was rejecting the principle in that case and was basing his disagreement on an argument not raised by the parties.
Here are two other points about the “principle” of party presentation. First, in support of it, the court has now repeatedly quoted Justice Ruth Bader Ginsburg’s opinion in 2008’s Greenlaw v. United States, in which the justice blanketly stated that “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” While invoking Ginsburg’s support for the idea may shield it from dissent from the three “liberal” justices, Ginsburg herself noted in a separate case that the principle was “not ironclad” and subject to “appropriate” exceptions (although she did not describe what these might be). Meanwhile, in his dissent in Greenlaw, Justice Samuel Alito made clear that “we should entrust the decision to initiate error correction to the sound discretion of the courts of appeal.” That echoed Alito’s statement at his confirmation hearing that the “task of the judiciary is to apply principles that are in the Constitution, and not make up its own principles.” But where was Alito’s voice in Clark or Magolin?
Second, if this “principle” includes a sub-principle that a court must first give the parties a chance to address a new idea that interests the court – as both Clark and Margolin appear to imply – why is the remedy to reverse the lower court’s judgment in its entirety rather than to remand with instructions to allow the parties to respond to that new point? Or – as Justice Clarence Thomas once suggested when applying another “principle of policy,” stare decicis – why shouldn’t the court address the legal merits of a decision they do not like, rather than relying on an atextual “principle” of uncertain scope as well as origin? (Indeed, that is exactly what Thomas, joined by Justice Amy Coney Barrett, did in a separate concurrence in Margolin.) But, alas, the court now appears to be silently using the party presentation principle to vacate and remand even more cases. On June 8, for example, the justices issued a two-sentence order remanding another 4th Circuit habeas case (Walters v. Coleman) with no explanation other than “for further consideration in light of Clark v. Sweeney.”
Finally, on my more general inquiry regarding “principles” being used as dispositive rules, two weeks ago the court affirmed the denial of a sentencing reduction in Fernandez v. United States, ruling that courts may not consider, as an “extraordinary and compelling” reason under the federal compassionate relief statute, a claim of potential innocence presented 20 years later. The court accepted the government’s argument that such a generalized approach to compassionate release would conflict with the more specific federal statute that allows federal inmates to collaterally attack their convictions even after being affirmed on direct appeal. To support its ruling, the majority referred (in footnote three) to “an anticircumvention principle” which it drew out of two prior decisions. That idea is that parties may not use a general statute to “‘impermissibly circumvent’ the specific design” of another statute. While Justice Sonia Sotomayor, joined by Justice Elena Kagan, concurred on a much narrower ground, Justice Ketanji Brown Jackson dissented, arguing that the court “d[id] not explain” the precise meaning and limits of this principle.
Are principles “rules,” or just guidelines? What are their precise definitions?
An anticircumvention principle, like one of party presentation, might well be a sensible guideline for judicial administration. But if principles are going to be used as dispositive rules to reverse judgments without looking at their merits, then lower courts as well as litigants need further clear and precise statements from the justices. They need to know what and when exceptions should be applied, and whether review will be for abuse of discretion (that the lower court decision was plainly erroneous) or some stricter standard. This is particularly true when dispositive principles, even if longstanding (like stare decisis) and sensible, are drawn from judicial experience and judgment but without textual endorsement in a statute or a congressionally-approved federal rule. To paraphrase Alito, again, the “task of the judiciary is to” provide clear guidance and, in general, stick to Constitutional and statutory directions, “and not make up its own principles.”
For starters, a rule of party presentation ought to include a strong guideline that a court must, before a final ruling, give the parties a fair opportunity to address new theories that have not been previously raised. This is consistent with the court’s own practice of occasionally directing parties to address questions not previously presented in a case (Brown v. Board or Education, which was reargued after the court presented its own new question, is one such instance). Significantly, once such an opportunity has been provided and a court then rules, the need for an unwritten principle disappears. Instead, a reviewing court can directly evaluate the legal merits of the final ruling, whether or not a ground was raised early or “late” in the case.
Indeed, it might be a fair general rule – general, not iron-clad – for appellate courts to decline from reviewing legal arguments which were not even hinted at by the parties. That idea is reflected in the court’s own Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court.”) Although such a rule may make sense for appellate courts, however, it is far less clear why this should be the case at a trial court level, where the parties as well as the judge are confronting difficult problems for the first time. And in any case, the Supreme Court ought not use an undeveloped and nontextual principle to avoid exposing internal division on the legal merits presented.
As for anticircumvention, as Sotomayor’s and Jackson’s separate Fernandez opinions explain, when there are textual statutory directions competing for attention – in that case, a direction that collateral attacks be governed by strict habeas rules, versus a direction that district judges may reduce sentences for “extraordinary and compelling reasons” – the majority needs to explain more precisely the rules for decision between the two. Barrett wrote for the majority that the two statutory directions could be construed “in harmony” rather than “at cross-purposes,” while Jackson wrote that “one man’s collateral attack is another man’s compelling bid for compassion.” But neither explained precisely how future courts should resolve such disagreements.
Judicial “principles” more broadly
None of this is to say that such principles are groundless or invalid. Instead, their application simply needs more clear explanation and definition. Judicially developed “principles” developed to intelligently manage litigation have a deep historical pedigree. Indeed, Harvard Law Dean James Thayer in 1893 described the principle of judicial review itself, endorsed in Marbury v. Madison in 1803, as one of judicial “administration.” So while the concept of a legal principle may be something less than an iron-clad rule, it should be more precisely described as stronger than just advice. Undoubtedly, accepted legal principles (like judicial review) are critical for our legal system. And not everything has to be endorsed in a statute – courts need stable rules of administration which (as I have suggested) lie within their authority as an independent branch of government.
To be fair, the branch of legal philosophy surrounding “principles” – perhaps best associated with Ronald Dworkin and his “Model of Rules,” as well as Herbert Wechsler’s seminal lecture “Toward Neutral Principles of Constitutional Law”– is far too “big” for a short SCOTUSblog column. And I risk drowning in debates well out of my depth. But today I am calling out what I see as a pattern of the court applying atextual “principles” to decide cases without precise definition and without explanation for why they are doing so. If these principles are going to be case-dispositive rules, then the court should say so. And if there are to be exceptions – as Ginsberg and Scalia both agreed there must be – then the court should say that, too, and give some guidance as to when.
The current pattern of case-dispositive principles is especially disturbing when done summarily, without full briefing and oral argument – a practice which might itself be thought to transgress fair “party presentation” rules. To some extent this tracks the critique of the “shadow docket” more generally, criticisms which the justices are beginning to hear and respond to. I urge them to also do so when applying “principles” to dispositively affect not only individual liberty but also our societal interest in having a stable and predictable system of criminal law.
PS: For an interesting conversation about a different principle, an Eighth Amendment (among other sources) “principle of anti-ruination,” catch the last 32 minutes of June 8’s Strict Scrutiny podcast, discussing Professor Judith Resnik’s new book Impermissible Punishments.
