Lately, the Supreme Court seems to be sending a message to the lawyers who practice before it: Do not ask the court to grant review of an issue and then try to change the subject.
In several recent cases, the justices have voiced frustration at what they think may be attempts to change the focus of arguments after the court has agreed to hear a case. If the justices believe the issues have shifted, they at the very least may admonish the lawyers. In more extreme circumstances, as happened recently, they may dismiss a case outright.
This willingness to dismiss a case seems odd, considering that the court is not granting enough cases to occupy its allotted oral-argument time slots. Counting the announced arguments for its January sitting, the court has heard or scheduled 33 hours of argument this term but has left nine hour-long slots unused. Clearly, the justices are not trying to shed cases out of overwork. So what would be the harm, one might ask, in deciding a case in which the lawyers have come up with a different argument than the one considered by the lower court (assuming that is actually what happened)? The answer, almost certainly, lies in a jurisdictional principle taught to law students and refreshed in appellate advocacy seminars: Argue the issues that were properly raised below and that were presented to the Supreme Court in the petition for certiorari. Arguments in the Supreme Court are generally supposed to be limited to those raised in the lower courts. Review of a lower court ruling is not an invitation to come up with new ideas and to make new arguments that were never raised at earlier stages of a case. As with virtually every rule, there are exceptions, of course, but the general principle is widely recognized that appellate review is limited to issues and arguments properly raised below.
Given this principle, one might assume that Supreme Court advocates would be unlikely to stray from the questions presented in a petition for review. One possible reason for them to do so, though, is that Supreme Court cases are often briefed and argued by lawyers who specialize in advocacy before the court and who may not have handled any part of the case before that point. Sometimes, the Supreme Court specialists are not even hired until after the court has granted a petition for certiorari. If a specialist takes on a case at the last stages and believes that the arguments previously made are not as strong as they could be, it must be tempting to try to reframe the issues in the most favorable light. Indeed, presumably that is why the specialist was hired.
So how does the court respond when it senses a shift in the focus of a case? There are three examples to consider from this term.
In what the Supreme Court obviously considered the clearest of the three, the justices on November 17 dismissed two petitions filed by Visa, Inc. The cases, Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos, were granted review by the court last June and were scheduled for oral argument on December 7. In the order dismissing the cases, the court said that Visa had changed its argument from the question it had presented in its petitions for certiorari. Visa had added new lawyers to the case to handle the briefing and, presumably, the oral arguments, which never took place.
The Visa cases involve class-action antitrust lawsuits in which consumers and operators of independent ATM machines accused Visa, Mastercard and some banks of conspiring to set and maintain higher fees for using ATM machines to withdraw money. A federal district court in Washington dismissed the lawsuits for lack of standing and for failure to state a clear antitrust violation. The U.S. Court of Appeals for the District of Columbia disagreed and reinstated the lawsuits, prompting the credit card companies’ appeals to the Supreme Court.
In their petitions to the Supreme Court, the credit card companies had urged the justices to decide whether antitrust liability could be found solely on the basis that the companies adhered to the rules of a business association to which they belonged and that set the ATM fees. But at the merits stage of the case, lawyers for the class-action plaintiffs and for the government maintained, the credit card companies changed their argument, claiming that there could be no antitrust conspiracy because the banks and their credit card network were a single entity. Although the credit card companies replied that their argument was still well within the issue they had raised in the original petitions, the Supreme Court disagreed.
This is not the first time in recent memory that the court has been concerned with whether it is deciding the right questions. In dismissing the Visa petitions, the Supreme Court referred to a ruling in 2015, City and County of San Francisco v. Sheehan, in which the court took the unusual step of dismissing one question raised in the case and deciding a second question. The issue the court dismissed in that case was whether the Americans with Disabilities Act requires police officers to make accommodations when arresting an “armed, violent and mentally ill suspect.” The court, in an opinion by Justice Samuel Alito, said that San Francisco had abandoned the original, broad question of whether the ADA applied at all and was only maintaining that the law did not apply to the actions of individual police officers in the case. The portion of the decision dismissing the issue after it had been briefed and argued was unanimous. In a separate opinion, the late Justice Antonin Scalia was so perturbed that he accused San Francisco’s lawyers of a “bait-and-switch” and said the court should not even have decided the second issue in the case, in which the majority found that the city’s officers were entitled to qualified immunity for injuries caused when they arrested the suspect.
This term, soon after the court dismissed the Visa cases, several justices closely questioned lawyers arguing in two other cases about whether they too were engaging in a form of bait-and-switch.
On November 29, during oral argument in Moore v. Texas, Chief Justice John Roberts pressed the attorney for the petitioner, Bobby Moore, along those lines, asking whether the case “got in the door by a question presented that is a little more eye-catching” than the argument the attorney was making on the merits. The case challenges the guidelines used by the state of Texas in death penalty cases to determine if someone is intellectually disabled and, therefore, protected by the Eighth Amendment to the Constitution from being executed. Moore’s petition for certiorari had framed the question presented as one involving Texas’ prohibition against the use of current medical standards to assess intellectual disability; Roberts suggested that Moore was now mounting a broader challenge to the Texas approach that was “not encompassed within that question presented.” After a lengthy exchange on the issue, the justices moved on, and the case remains on the court’s docket for decision.
There was a similar exchange on December 7 in Czyzewski v. Jevic Holding Corp., a bankruptcy dispute. During oral argument, Alito observed to the lawyer for the petitioners, a group of former employees of the bankrupt company: “Something strange seems to have happened between the petition stage and the briefing stage in the case.” Alito suggested that the employees had changed the focus of their argument from one about a split among federal appeals courts over legal rules for distributing bankruptcy settlement proceeds to one involving special structured bankruptcy dismissals. The lawyer responded, and again, the justices moved on. This case, too, remains on the court’s docket.
Is there a lesson in these several recent examples of Supreme Court scrutiny of the arguments being made? Perhaps not surprisingly, Scalia stated the proposition most forcefully in his 2015 separate opinion when he said the court’s goal was “to avoid being snookered, and to deter future snookering.”
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the respondents in Visa, Inc. v. Osborn and Visa, Inc. v. Stoumbos. The author of this post, however, is not affiliated with the firm.]