May 8, 2020 10:04AM

“Neither Party Is Right, But the Ninth Circuit Is Wrong”

The Supreme Court yesterday released a unanimous opinion in United States v. Sineneng‐​Smith. If you go by the briefs and arguments, the case concerned a First Amendment challenge to a criminal ban on the solicitation or encouragement of illegal immigration. Cato filed a brief arguing that the statute was unconstitutional. The Court, however, did not reference our argument, or that of either party for that matter. Instead, the Court vacated the lower court’s ruling, which found the statute unconstitutional, based on the “party presentation” rule.

The party presentation rule requires that courts only decide issues squarely presented by the parties, here Evelyn Sineneng‐​Smith and the United States. While Ms. Sineneng‐​Smith argued at trial and on appeal that her conviction violated the First Amendment, she did not specifically make an “overbreadth” challenge — that even if the statute covers her behavior, it goes too far and could punish protected speech, like a lawyer advising a client or even think tank scholar advocating for policy reform.

After hearing her case, the U.S. Court of Appeals for the Ninth Circuit raised the overbreadth issue by itself, asking several immigrant‐​rights groups to brief and argue it as amici curiae. Then the court accepted that argument, as did Ms. Sineneng‐​Smith when the Supreme Court took the case. The government in turn argued squarely against the overbreadth argument, without suggesting that the Ninth Circuit was procedurally wrong.

While it may be ironic that the Court decided the case on the party‐​presentation principle, without that principle being presented by either party, it is not unheard of and isn’t necessarily a bad thing — even if we’re disappointed that the decision wipes out a good First Amendment ruling. The party presentation principle is part of a species of procedural rules limiting court jurisdiction, preventing courts from overstepping their own authority by inventing controversies that the parties don’t ask them to resolve. 

Of course, the Court didn’t explain how or why it reached this result without even asking about this potential jurisdictional defect at oral argument or calling for further briefing. It could be that the justices were intractably splintered on the merits of the case and didn’t want to release an opinion with no majority rationale.

Regardless, yesterday’s decision emphasizes that courts may not act on their own to determine legal answers to questions not presented to them — unless it’s the rare case where an issue arises that’s necessary to reach in order to resolve the original controversy. Justice Ruth Bader Ginsburg’s opinion adds a two‐​page appendix detailing such special cases in recent years, where the court has called for further briefing (only asking amici to argue when the original party has abandoned its position or otherwise is unwilling to defend a lower court ruling).

In sum, Sineneng‐​Smith did not provide the expected clarity on the scope of First Amendment protection for advising potentially unlawful activity, but it could become a powerful arrow in the quivers of attorneys seeking en banc or Supreme Court review of adventurous circuit panels.