Party presentation: A mysterious new rule?

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

The first “opinion of the court” for the 2025-26 term was a summary disposition in a criminal case (an immediate grant of certiorari and reversal of the lower court decision without further briefing or oral argument). In Clark v. Sweeney, a short and little-noticed per curiam opinion with no identified author or dissents, the court reversed a grant of habeas corpus relief “because the Court of Appeals departed dramatically from the principle of party presentation.” While the court did not explain it, this apparently means a practice in which courts may rely only on arguments actually presented to them by the parties.

But where does this “principle” come from, especially in an opinion where the court gave no constitutional or statutory basis? As I explain below, the lack of analysis and explanation in the court’s four-page opinion is disturbing. Courts have always presumed that they have the power to address “miscarriages of justice” or other obvious errors, regardless of the talents (or lack thereof) of the lawyers in the case. Is “party presentation” now, somehow, a dispositive legal rule, with no exceptions for things like a “miscarriage of justice”? If so, a summary disposition, based solely on a “principle” without any statutory or constitutional citation, is simply not the appropriate method for the invention of such a rule, especially given its uncertain scope and lack of definition or historical foundation. 

The specifics of Clark v. Sweeney

Jeramiah Sweeney was charged with second-degree murder in Maryland in 2010, after a bystander was shot during a neighborhood fight. As the per curiam court noted, Sweeney’s defense was that he was not the shooter “given his location and the angle of the bullet wound.” Prior to deliberations, a juror visited the crime scene on his own; when he told fellow jurors, they went to the judge. It was agreed after discussion with the lawyers that a jury of 11 would proceed to consider a verdict. The trial judge did not ask the remaining jurors about what they had heard or its effect on them, and Sweeney’s lawyer did not suggest such an inquiry.

Sweeney was convicted and sentenced to life plus 30 years in prison, and the Maryland state courts affirmed. Sweeney was then also denied relief in a state postconviction case, rejecting his claim that his trial lawyer’s failure to ask for examination of the other jurors had denied him effective assistance of counsel. 

In 2019, Sweeney filed for federal habeas relief, again arguing that his lawyer’s failure had denied him effective assistance of counsel under the Sixth Amendment. The federal district court denied relief, but on appeal a divided three-judge panel of the U.S. Court of Appeals for the 4th Circuit reversed and remanded for a new trial. 

The circuit court majority did not limit itself to the single ineffective assistance claim that Sweeney had presented in state court, however. Instead, in a detailed 52-page opinion, it found a “combination of extraordinary failures from juror to judge to attorney” that had not been raised by Sweeney’s counsel. The majority described what it saw as “structural error … that extends far beyond just [defense counsel’s] ineffectiveness.  … [T]his error infected the entire judicial process and Sweeney’s right to a fair trial.” The court of appeals concluded that “this multitude of [constitutional] failures … take this case beyond … traditional habeas review.”

Last July, the state of Maryland asked the Supreme Court to grant review. On Nov. 24, without asking for full briefing or oral argument, the court granted certiorari, reversed, and sent the case back to the 4th Circuit with specific directions to “analyze” –does this mean only? — “the ineffective assistance claim that Sweeney asserted.” “The Fourth Circuit” said the justices, “transgressed the party-presentation principle by granting relief on a claim that Sweeney never asserted and that the State never had the chance to address.” (Please note that I am not defending the lower court’s legal reasoning; and the circuit should at least have asked the parties to address the new arguments. But these are not the grounds on which the Supreme Court relied.)

In support of its reversal, the court’s brief opinion cited only two 2020 opinions, and gave dispositive life to Chief Justice John Roberts’ (in)famous “balls and strikes” view of the role of judges. Specifically, the unnamed author wrote that “‘courts call balls and strikes’; they don’t get a turn at bat.” (This is a view to which the Roberts court itself has not necessarily adhered, as law professor Pam Karlan has noted, not infrequently “directing the parties to address issues the justices want to take up” and “pressing issues the parties have chosen not to raise.”).

The court did not further explain where the “party presentation principle” comes from, and why courts should adhere to it if indeed a “multitude” of constitutional errors led to a life sentence. In the past, the court (and scholars) have written about a “supervisory power” to write rules for lower federal courts. But if the Sweeney court was exercising some such power, of uncertain origin (as Justice Amy Coney Barret discussed in 2006 and mentioned again last year), then it should have said so and explained it. To assert such a principle without noting possible exceptions and explaining why it is summarily dispositive of constitutional claims, is not just balls and strikes, but rather calling the ballgame over before it had barely begun.

Courts have always had authority to address “plain errors” and “miscarriages of justice.”

Article III of the Constitution says that the federal “judicial power shall extend to all” federal questions. “[A]ll” – it does not limit that power to only arguments that the parties raise. Similarly, federal statutes give federal courts both civil and criminal jurisdiction over all cases “arising under the Constitution” and other federal laws; those grants of authority have no exception for matters not raised by a litigant. Finally, Federal Rule of Criminal Procedure 52 expressly states that “a plain error that affects substantial rights [as would seem to fit the 4th Circuit’s view in Sweeney] may be considered even though it was not brought to the court’s attention.” The rules of civil procedure contain a similar provision.

Federal habeas corpus statutes and interpretive cases do, undoubtedly, limit the authority of federal courts to overrule state criminal verdicts. But the first sentence of the Antiterrorism and Effective Death Penalty Act (the relevant habeas corpus statute here) says that jurisdiction extends to a prisoner’s claim “that he is in custody in violation of the Constitution.” There is nothing in the habeas statutes (or caselaw) that expressly requires federal courts to ignore constitutional errors that a litigant did not present (although matters of exhaustion – first bringing a claim through the proper channels – and questions of what constitutes “clearly established federal law” may block habeas relief).

The Sweeney opinion also cites no statutory or constitutional authority for its “party presentation” principle. Indeed, as noted above, the decision quotes only two recent Supreme Court decisions, only one of which asserts, without claiming dispositive legal power, that “we follow the principle of party presentation.”

As to these two opinions, Sweeney first quotes Justice Ruth Bader Ginsburg’s opinion in United States v. Sineneng-Smith, saying that “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” But this was not a dispositive principle. Ginsburg immediately continued to explain that the principle “is supple, not ironclad,” and that “circumstances” may make it “appropriate” for courts to intervene. In Sineneng-Smith, the court applied this principle only after indicating that there were no “extraordinary circumstances” requiring an exception (and, as also may have been the case in Sweeney, that the lower court’s view of the law was at best suspect). 

Sineneng-Smith cited Greenlaw v. United States, a 2008 opinion also authored by Ginsburg. (Indeed, as a lifelong civil procedure professor, Ginsburg has been noted as the champion of the party presentation principle and called “the Great Proceduralist.”) But as Justice Samuel Alito noted in his Greenlaw dissent, “courts may make exceptions” to the principle “to correct an error” on their own initiative “ [a]bsent congressional direction to the contrary.” Alito concluded – please note this when thinking about Sweeney – that “we should entrust the decision to initiate error correction to the sound discretion of the courts of appeals.”

So where was Alito’s trusting voice in Sweeney? To be frank, I believe he may have been silent because the Sweeney decision went against the criminal defendant, while the Supreme Court’s decision in Greenlaw with which he disagreed threw out a ruling by the U.S. Court of Appeals for the 8th Circuit that added 15 years to a criminal defendant’s sentence. But endorsement of a party presentation principle should not turn on partisan preferences.

The only other decision cited in Sweeney was Lomax v. Ortiz-Marquez, a prison litigation “three strikes” case in which Justice Elene Kagan stated, in a characteristically punning reference (and with silent tribute to the chief justice) that it was the court’s “duty to call balls and strikes.” That offhand pun was no endorsement of the party presentation principle, which was simply not an issue in the case.

To be clear: the general idea that arguments not raised by parties are waived or forfeited in our adversarial system is longstanding. But it is a “presumption pockmarked by exceptions,” and the use of that idea in Sweeney as though it were a flatly dispositive legal “principle” dates back only a few years. On the other hand, the idea that courts may on their own initiative reach out to correct substantial errors is as old as the judicial role itself. As the Supreme Court explained 84 years ago, courts may always intervene to correct “a “plain miscarriage of justice.” Indeed, law professor Amanda Frost has defended and traced the origins of what she calls ”judicial issue creation” to Marbury v. Madison’s magisterial pronouncement of the judicial branch’s duty to “say what the law is.”

In a thorough examination (and endorsement) of the principle, law professor Jeff Anderson notes that even Sineneng-Smith “implicitly reaffirms” the longstanding recognition of appellate courts’ power to correct injustices, although implying that there is a presumption against this. While his article is primarily a celebration of Ginsburg, he notes that “she recognized that the principle admits certain exceptions” which sometimes must “outweigh[] the interests of the parties.” Finally, it must be acknowledged that, as noted above, the court itself not infrequently orders parties to address new questions – as it recently did, for example, when posing two specific questions for the parties to brief regarding the court’s proposed overruling of Humphrey’s Executor.

Lawyers, of course, like the principle of party presentation. They want to win for their client, and they hate to be surprised by issues the other side has not raised. They justifiably feel sand-bagged when a judge interferes in their chosen strategies of presentation. What’s more, lawyers, law professors, and judges are trained as “proceduralists.” They have a professional faith that a carefully regulated system of advocacy will ultimately lead to the best results, and even to “the truth,” in legal battle. Certainly there is a sense of unfairness if an advocate loses a case based on an issue they did not have a chance to fully litigate; they might well have had more to say had they been given the opportunity.

Given this, the 4th Circuit in Sweeney should have asked the state to address the other issues it saw before ordering a new trial. There is good sense to have a presumption – although not an absolute rule – that issues not raised by the parties should not be independently pursued by judges. The problem with an absolute theory, however, is what judges and lawyers in our trial courts see every day: unequal advocates, unequal resources, and unequal talents of lawyers (and judges). All of these factors can lead to unequal, indeed unjust, results, when a lawyer on one side fails to raise a substantial issue. Because lawyers are not always of equal skill, and lay people are untrained, judges have always reserved a power to intervene if a miscarriage of justice – think of it perhaps as a car crash – is about to result. This helps explain the phenomenon of “managerial judges” that Yale law professor Judith Resnik identified in a path-breaking 1982 article – an article with which a young White House lawyer to Ronald Reagan almost certainly disagreed. Judges do not just passively call balls and strikes, but act to correct bad calls when they see them.

Caution: don’t take Sweeney as the final word

A general principle – presumption is clearly a more accurate word – of party presentation may well be, as then-Judge Antonin Scalia once wrote, a “premise of our adversarial system.” But an adversarial preference held by lawyers and even of judges (and only sometimes), is neither a statutory nor constitutional rule. Some publicity was recently given to a recent law student Note decrying the “decline of summary reversals.”  But that is hardly a good reason to then suddenly adopt a dispositive rule in a summary context without full merits consideration. Whatever internal forces drove this four-page bench-slap (a term originated by David Lat), I would urge future courts not to rely on the application of the “balls and strikes” preference in Sweeney as a no-exceptions rule. To me it reads as too-quickly-considered slapdash, presenting no analysis, examination, or consideration of the principle’s origins, foundations, and potentially dramatic implications. 

I hope and expect the justices to say more, and I’ll wager not unanimously, on the topic soon.

Out of my lane

By the way, on the question of the president’s power to remove executive branch officials, the framing of the recently argued Slaughter case as “expand[ing] presidential powers” seems wrong to me. Article I, section 8, of the Constitution expressly gives the legislative branch numerous powers, capped with a general authority to “make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.” No one questions that this has, since day one, given Congress the power to create agencies to administer the general statutes and duties that Congress legislates. This includes agencies such as the Federal Trade Commission, the Federal Reserve, the Nuclear Regulatory Commission, and indeed the National Bank of the United States, legislatively created by the first Congress in 1791 and endorsed in McCulloch v. Maryland in 1819. And there is no constitutional text addressing a presidential removal power, nor does any text clearly express a desire for limitless “unitary executive” control of congressionally created agencies.

The proper constitutional question in Slaughter is not whether the president should have an expansive non-textual power of removal, but rather what limits the Constitution places on Congress’ textual power to write the laws. The proper framing for Slaughter is, therefore, not whether we can find a limitless expanded executive power of removal, but where the court can find a non-textual restriction on the express legislative powers of Congress to design agencies in the way they think it most “appropriate” to serve the public.

The unanimous court in Humphrey’s Executor believed that Congress’ mild protection of independent agency heads – who can undoubtedly be fired for “good cause” – was consistent with the Constitution’s basic separation-of-powers structure.  Statutory creation of administrative agencies reflects considered compromises made by hundreds of elected representatives. Given this, the Slaughter court must satisfactorily explain why Humphrey’s textual analysis of those considered democratic “checks and balances” is wrong on a general level. An agency-specific answer that is “good for this ride only” will seem like partisan horse-trading, not responsible constitutional interpretation.