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Sunday, May 20, 2018

Second Thoughts on the “First View” Principle

The Justices often intone that theirs is “a court of review, not of first view,” but last Monday’s decisions illustrate the complexities underlying that maxim. In one case, the Court applied the "first view" principle without discussion. In another, it explained its choice not to follow the principle. And, in a third case, the justices divided over whether to follow the principle. These decisions illustrate that the “first view” principle is more discretionary than it often appears—and that the Court could do more to explain what guides its choices in this area

In particular, Monday’s opinions suggest that a Catch-22 has arisen. When one party raises a new position, the opposing party is apparently placed in a bind. If the opposing party responds on the merits, the fact that the issue is “fully briefed” could counsel in favor of entertaining it. But if the opposing party declines to address the new position, then the Court might entertain it precisely because the opposing party “explicitly chose not to grapple with it.” Either way, the opposing party’s reaction can be cited as a reason to rule on the new position, notwithstanding the “first view” principle.

  1. Byrd v. United States

Byrd supplies a straightforward application of the “first view” principle. In short, the Court notes that a position had not previously been raised, cites Cutter’s canonical statement of the principle, and then (without further explanation) declines to rule on the new position. 

Byrd now argues in the alternative that he had a common-law property interest in the rental car as a second bailee that would have provided him with a cognizable Fourth Amendment interest in the vehicle. But he did not raise this argument before the District Court or Court of Appeals, and those courts did not have occasion to address whether Byrd was a second bailee or what consequences might follow from that determination. In those courts he framed the question solely in terms of the Katz test noted above. Because this is “a court of review, not of first view,” Cutter v. Wilkinson, 544 U. S. 709, 718, n. 7 (2005), it is generally unwise to consider arguments in the first instance, and the Court declines to reach Byrd’s contention that he was a second bailee.

  1. Dahda v. United States

By contrast, Dahda declined to apply the “first view” principle. Without actually quoting the principle, the Court acknowledged that one of the government’s key arguments was new on appeal. The Court then gave some reasons to address the argument anyway – including the fact that the issue had been “fully briefed by both sides.”

We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below. It has been fully briefed by both sides. And as we may “affir[m]” a lower court judgment “on any ground permitted by the law and the record,” we see little to be gained by remanding this litigation for further consideration. [Citations omitted throughout]

  1. McCoy v. Louisiana

Finally, and most interestingly, is McCoy. The “first view” principle came up because the Court chose to resolve a structural error issue that the defendant had raised but that had not been adjudicated below. Most interestingly, the Court provided at least one reason for this choice: the state “explicitly chose not to grapple with” the structural error issue.

The dissent suggests that a remand would be in order, so that the Louisiana Supreme Court, in the first instance, could consider the structural-error question. “[W]e did not grant certiorari to review” that question. But McCoy raised his structural-error argument in his opening brief, and Louisiana explicitly chose not to grapple with it [cite to the passage from the state's brief block quoted below]. In any event, “we have the authority to make our own assessment of the harmlessness of a constitutional error in the first instance.” [Citations omitted throughout]

McCoy differs from Byrd and Dahda in that the defendant was raising a new “question” outside the scope of the question presented, rather than posing a new “argument” in support of a particular answer to the question presented. But that distinction would only seem to strengthen the case for declining to take a “first view” in McCoy. In its brief, the state made a similar point in the passage that the McCoy Court cited as a choice “not to grapple” with the defendant’s newly posed question:

McCoy asserts that the deprivation of his “right to make basic decisions regarding the objectives of his defense,” is structural error. Should the Court agree with McCoy that his constitutional rights were so violated, it should remand without addressing whether the error was structural or subject to harmless-error review. McCoy did not expressly present that question to the Court, and his petition for certiorari did not mention the remedy issue. Nor can the remedy issue be said to be “fairly included” in the question presented. It is not a “predicate to intelligent resolution of the question on which” certiorari was granted, and is not an alternative “argument in support of” the constitutional claim presented. See Youakim v. Miller, 425 U.S. 231, 234 (1976) (“ordinarily, this Court does not decide questions not raised or involved in the lower court”). [Some citations omitted throughout]

The McCoy dissent objected that the majority had transgressed the “first view” principle—which it calls the “the court-of-review maxim”—without adequate justification. And the dissent particularly criticized the Court’s reliance on the state’s asserted failure to “grapple” with the defendant’s new position.

We have stated time and again that we are “a court of review, not of first view” and, for that reason, have refused to decide issues not addressed below. [String cite]

In this case, however, the court-of-review maxim does not suit the majority’s purposes, so it is happy to take the first view. And the majority does so without adversarial briefing on the question. [Footnote reproduced below] Under comparable circumstances, we have refrained from taking the lead on the question of structural error. There is no good reason to take a different approach in this case.

[Footnote] Indeed, the Court actually faults the State for not “grappl[ing] with” an argument raised for the first time in petitioner’s opening brief. But how can it blame the State? This Court has said, time and again, that when “petitioners d[o] not raise [an] issue” until the merits stage, “we will not consider [the] argument.” That is also what our Rules say. Why is this case any different? [Citations omitted throughout the above three paragraphs]

Setting aside the specific dispute between the McCoy majority and dissent, the combination of Dahda and McCoy creates a conundrum. If your opposing party brings up a new argument or question, there seems to be no right way to proceed. A response on the merits will allow the Court to say that the issue is “fully briefed.” But a choice to rest on the “first view” principle could be treated as a decision “not to grapple with” the new issue. Either way would seem to lead to the same conclusion. This logic also suggests that the presence or absence of a response on the merits doesn't really play a significant role in the Court’s decision-making process, since either result seems to support the same conclusion.

But context could play a key role here. If the newly raised matter is one that the justices likely want to resolve even without adversarial briefing—perhaps because the issue seems easy or urgent—then the opposing party might as well try to argue the point, particularly if there is something to say that the justices themselves might not think of. But if resolving the issue without thorough briefing is likely to strike the justices as rash and unnecessary (or if the new position seems like a loser anyway), then a substantive response could be misguided. Similar reasoning also suggests that an opposing party’s response to a new issue could properly push the Court in one direction or another, depending on the overall situation.

More broadly, the Court’s varying use of the ostensibly strict “first view” principle reflects a healthy dose of discretion. And, if deployed uncritically, the principle could work as little more than a cynical cover for the justices to pick and choose the newly presented issues they desire. But there are often legitimate reasons to set aside the “first view” principle, as I’ve discussed in a prior post. And if the Court provides those reasons, then, in time, it might generate a small but helpful jurisprudence on when first views are appropriate.

Posted by Richard M. Re on May 20, 2018 at 09:00 AM | Permalink


Steven, You’re right to draw attention to the “any ground” principle as one relevant ingredient here, but I don’t think it comes close to explaining the Court's behavior. For starters, it doesn’t exhaust the reasons given in Dahda or explain what the Court did in McCoy. And just today, in Lundgren, the Court declined to affirm on an alternative ground – while citing the “first view” principle! At any rate, a broad view of the “any ground” principle would in itself mark a major limitation for the supposedly strict “first view” maxim. It’s not as though the “first view” principle states that the Court is one of review, not of first view, *except when the respondent makes a new argument.*

Posted by: Richard | May 21, 2018 3:09:01 PM

It's almost as if Prof. Re had an advance copy of this morning's tribal sovereign immunity decisions. Interesting discussion of the first view principle there this morning.

Posted by: dcl | May 21, 2018 11:11:23 AM

Perhaps I am mistaken, but isn't the difference between Byrd and Dahda due to the party raising the new argument. In Byrd it was the petitioner, seeking to reverse the court below. In Dahda it was the respondent, seeking affirmance. Appellate courts have always exercised greater discretion to affirm a lower court on "any ground," while refusing to consider arguments that were not raised below. Though not precisely the same, these two cases seem to follow that pattern.

Posted by: Steven Lubet | May 21, 2018 6:10:53 AM

I'm not convinced this shows that there is any harm to fully briefing every issue which is argued by the other side insofar as the resolution of this *particular* case (as opposed to the establishment of precedent).

I mean in Dahda, if Dahda's lawyers had chosen not to brief the issue in question they wouldn't have gotten a free pass on it. Rather, it sounds like they would just have had to argue the point on remand (which creates a very slight strategic consideration if you feel you would fair better on remand than at SCOTUS weighed against extra time and cost).

Of course, if your goal is to change the law rather than win one particular case there are more strategic concerns.

Posted by: Peter Gerdes | May 20, 2018 8:03:09 PM

The court does what it wants. This seems to me to be similar to the discretion that the Supreme Court and courts of appeals have whether to rule narrowly or broadly in any particular case. San Francisco v. Sheehan had that great Scalia dissent about snookering, but it was a dissent.

In Byrd, the Court granted cert on a really clean, straightforward issue (not to say easy, just "clean"). Once they decided that, and the petitioner wanted to turn a remand into an outright reversal with a fact-intensive argument based on the common law of contracts... seems unsurprising that the Supreme Court didn't think they needed to say any more than they did.

In McCoy... once the Supreme Court decides that a government-on-bottom capital case is worthy of review, maybe don't expect 5 justices to care whether the petitioner's arguments are "new."

Just idle speculation.

Posted by: dcl | May 20, 2018 5:26:02 PM

Richard, interesting post as usual. Two thoughts:

1) I completely agree that it's discretionary, but I see that as part of the Court's broader discretionary docket. With a few exceptions, the Court decides what cases to grant and what issues to decide. Most of that is at the cert stage. But part of it is at the decision stage, too. It's not surprising that, having taken a case, they then exercise discretion as to what issues to decide.

2) I see that discretion as a common theme of the Court's cases. Take the just the narrow issue in Byrd of how the trespass/physical intrusion theory of searches might apply. In Jones, the Court invented/restored the test even though it was not addressed by the parties below. Next, in Jardines, the Court decided the case on that basis even thought it was not addressed below. Then in Byrd, the Court claimed not to address it, but then applied the Katz test by harnessing a property principle that seems to match what you might expect the trespass theory to produce. The Court then declined to address how the Katz test it did apply actually applied to the facts of Byrd, remanding instead for further factual and legal development. It seems to me that the Court does what it wants, deciding what it thinks is appropriate when it thinks it is appropriate to do so.

Posted by: Orin Kerr | May 20, 2018 1:46:15 PM

Interesting post , but beyond the validity of the strategic issue raised by this post , I couldn't understand , how the case of " Dahdas " reflects it even somehow :

In that case of " Dahdas " , the issue was very narrow relatively , and had to do with question of law rather than disputed facts . All along the way , up to the Supreme court , the defendant was looking for suppression of evidence due to the legally insufficiency of the order to intercept communication. Here I quote :

" Prior to trial, the Dahdas moved to suppress all evidence derived from the wiretaps authorized by the nine Orders on the ground that the District Court could not authorize the interception of calls from the Missouri listening post to and from Alarcon’s mobile phone in California."

And the issue in front of the Supreme court I quote :

" We need only determine whether the defects in the Orders before us render them “insufficient.” "

End of quotation :

But , even if there is certain deviation , it is naturally very related . That is the point of prevailing an issue in courts :
That an argument or legal construction , may be formed or consolidated finally, simply thanks to litigation so , it would form in its turn , the game changer, concluding and prevailing the case . So , the issue is an issue of :

How close it is , how similar it is , to the heart of the issue anyway , and indeed I quote the conclusion of the Supreme court :

We conclude that they do not. We rest that conclusion upon an argument that the Government did not make below but which it did set forth in its response to the petition for certiorari and at the beginning of its brief on the merits. That argument is closely related to the arguments the Government did make below.

End of quotation :

So , the issue raised in that post , is relevant , while there is fundamental shifting in the stance of one party , but , not when it is so close as mentioned and similar and based upon the same factual and legal configuration as in " Dahda " .


Posted by: El roam | May 20, 2018 11:28:18 AM

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