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.