Opinion analysis: Lawyers should lawyer, judges should judge – The court remands Sineneng-Smith

The Supreme Court today resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the U.S. Court of Appeals for the 9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits “inducing or encouraging” unauthorized immigration. She charged noncitizen clients substantial fees for filing paperwork that she falsely claimed could lead to lawful permanent resident status. After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. The order for additional briefing was addressed not to the parties but to specified amici curiae, or “friends of the court,” although the parties and other amici could also elect to participate. The panel ordered re-argument in which the amici would have 20 minutes, and Sineneng-Smith only 10. The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that “the panel’s takeover of the appeal” warranted reversal and remand for reconsideration in light of “the case shaped by the parties.”

The court cited Greenlaw v. United States, another opinion by Ginsburg, as an example of the strength of the general principle that courts do 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.” In Greenlaw, the Supreme Court held that on appeal of a criminal conviction and sentence by a defendant, the U.S. Court of Appeals for the 8th Circuit had erred by ordering on its own initiative the correction of an illegally low sentence—the defendant had received 10 years, instead of the required 25. The error was substantial, in the record and crystal-clear, and it had even been mentioned in the government’s brief. However, in the absence of an actual appeal or cross-appeal by the United States, the court ruled that the court below should not have reached out to fix it.

Although the government noted that the 9th Circuit here had deviated from “the normal course of party-driven litigation,” the certiorari petition and the merits brief focused on the meaning and application of substantive law. There was no argument or citation of authority suggesting that the 9th Circuit’s actions, independent of the merits, warranted review or reversal. Similarly, the oral argument was entirely focused on the meaning of the law and its constitutionality, not the 9th Circuit’s unusual procedural approach. Therefore, it could be argued that the Supreme Court “reached out” to hold that the 9th Circuit improperly reached out to invalidate the statute at issue. Perhaps under its supervisory authority or on some other ground, the Supreme Court has more authority to reach out than do other courts. But it would have been useful for the court to explain why it was relying on a procedural problem that was not foregrounded in the Supreme Court litigation.

It may be that the court was looking for an exit. By this point, much of the drama has been drained from the case. Apparently, little is at stake for Sineneng-Smith herself; her convictions of several related mail-fraud offenses had been affirmed, so she will have a record in any event, and she is now out of custody. For the government’s part, it acknowledged before the Supreme Court that the statute at issue could not be applied to the full extent of its literal language. Due to seemingly contradictory positions taken below and in other cases, the government agreed, as the court put it, that the statute “should be construed to prohibit only speech facilitating or soliciting illegal activity, thus falling within the exception to the First Amendment for speech integral to criminal conduct.” With the Department of Justice agreeing that the statute had to be limited, yet with no question that much of the conduct covered by the law is constitutionally punishable, the precise scope of the law and its validity could be left for another case.

The impact of the decision on the role of courts is unclear. As Judge Stephen Williams once memorably wrote, “[w]hile a judge isn’t a pig hunting for truffles in the parties’ papers, neither is he a potted plant.” The Supreme Court did not disagree; Ginsburg noted that “[t]he party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initiating role for a court is appropriate.” Surely judges have the right to control proceedings before them. Trial judges sometimes say “sustained” when no lawyer has objected but the judge perceives impropriety; Sineneng-Smith does not call that practice into question. Although what happened in this appeal is unusual, it is hardly uncommon for courts to order supplemental briefing based on an issue’s arising at oral argument. And judges have the ability to make things arise at oral argument. If, based on questions by the 9th Circuit panel, counsel for Sineneng-Smith had orally moved for additional briefing, and that motion had been granted, the legal issues before the 9th Circuit and Supreme Court would have been the same, but would have been “party-driven.”  Unless the Supreme Court will police supplemental briefing orders, the reversible error here may have been one of form rather than substance, avoidable in future cases with more subtle but no less effective judicial actions.

The case is also interesting for the concurrence of Justice Clarence Thomas, who in addition to agreeing that the 9th Circuit had erred, expressed doubts about the validity of the overbreadth doctrine itself. Under the overbreadth doctrine, someone like Sineneng-Smith, who has engaged in conduct that clearly can be criminalized, may nevertheless defend herself on the theory that the statute is invalid. Thomas explained that under existing jurisprudence, “a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute’s plainly legitimate sweep.” Thomas argued that this rule is not compelled by the First Amendment itself, and is in tension with other jurisprudence: “The overbreadth doctrine appears to be the handiwork of judges, based on the misguided notion that some constitutional rights demand preferential treatment. It seemingly lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges, and violates Article III principles regarding judicial power and standing. In an appropriate case, we should consider revisiting this doctrine.” No other justice joined this opinion.