Sometimes we get an opinion back from a court, and the reasoning leaves us scratching our heads and wondering, “Where did that come from?” In the opinion, the court has decided the case on something that neither party ever argued. We blogged about a case like that once, here. In that case at least, we could tell where the court got the reasoning that it found dispositive – from an amicus curiae brief. But usually, when that happens to us, we have no idea where the court got the idea – probably from some sharp judicial clerk’s research.
Well, it turns out there are limits on a court’s ability to do that.
Last term, in United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020), a criminal case, the Court (in one of Justice Ginsburg’s last opinions), reversed the Ninth Circuit for going off on a tangent that neither party had asserted. The opinion in Sineneng-Smith invoked something called the “party presentation” principle (the interesting thing we had never heard of), and held that that the Ninth Circuit had erred by deciding the case on a ground that had not been not been argued – or preserved – by the parties themselves. Id. at 1578. The Court explicitly stated that the limitations imposed by the parties’ presentations applied in both criminal and civil litigation:
In our adversarial system of adjudication, we follow the principle of party presentation. . . . “[I]n 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 1579 (quoting Greenlaw v. United States, 554 U.S. 237, 243 (2008)). So this “party presentation principle” is potentially useful to us civil litigators, too,
While the party presentation principle is “not ironclad,” “departures . . . have usually occurred to protect a pro se litigant’s rights.” Id. (citation and quotation marks omitted). Sineneng-Smith made clear that judges deciding cases on unargued grounds is very much an exception proper jurisprudence:
[A]s a general rule, our system “is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.”
140 S. Ct. at 1579 (quoting Castro v. United States, 540 U.S. 375, 386 (2003) (concurring opinion).
Given Sineneng-Smith and the opinions it quotes, the Supreme Court has evidently addressed the party presentation principle at least three times since the turn of the century – which is more times than it has restated the principle of Erie conservatism, another doctrine that exists to constrain judges from simply doing their own thing. Thus, Sineneng-Smith cautions:
Courts are essentially passive instruments of government. They 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.
140 S. Ct. at 1579 (citation and quotation marks omitted). These sentiments resemble those of Justice Benjamin Cardozo, who wrote, that a judge “is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness.” The Nature of the Judicial Process, at 141 (1921).
To us this means that, if we are on the receiving end of an adverse decision that turns on some ground that the plaintiff never argued, then the party presentation principle is another possible basis for overturning that decision. We caution that the facts in Sineneng-Smith were pretty blatant – the Ninth Circuit panel sua sponte appointed amici curiae to argue the new ground that it came up with, and the appellant’s argument “fell by the wayside,” 140 S. Ct. at 1580-81 – but the principle would appear to apply whenever a judge’s decision to decide a case on unargued grounds works a “radical transformation” of that case. Id. at 1582.
We grew up with the adage (attributed to Franz Kafka) that “it is better to have and not need than to need and not have.” Maybe we’ll never need it, but this party presentation principle is something else to have in reserve, just in case.