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Thursday, May 07, 2020

Courts should not reach out, unless they need to reach out

SCOTUS reached a strange resolution in United States v. Sineneng-Smith, arising from a conviction of an attorney for violating the federal law prohibiting encouraging or inducing non-U.S. persons to enter or remain in the U.S.

The Court vacated and remanded to the Ninth Circuit on grounds of the "principle of party presentation"--that courts must take and resolve cases as they come and are presented by parties represented by competent counsel--and that courts are "passive instruments of government."* And while there are exceptions (as shown in a two-page addendum** in which SCOTUS has appointed amicus or called for further briefing since 2015), the Ninth Circuit went beyond the pale in its management and resolution of the case, was unjustifed by any "extraordinary circumstances." The Court took issue with the court of appeals inviting specific amicus to brief and argue specific constitutional that were broader than what Sineneng's attorney had argued--that the law was overbroad and facially unconstitutional, as opposed to the defendant's arguments that she had a limited First Amendment immunity for her conduct. [I did not say it in the initial post, but I will say it now--the Court did not explain why what the Ninth Circuit did was more beyond the pail than what it does frequently].

[*] The partisan bend of that idea is fascinating, given the make-up of the federal courts and the evolving nature of constitutional and impact litigation.

[**] Any guesses as to why this was an addendum and not part of the opinion?

Justice Thomas concurred, but took the time (reached out, one might say) to explain why the overbreadth doctrine was invalid and should be rejected as unwarranted by text and history, inconsistent with the usual standards for facial challenges, and another improper application of the improper doctrine of third-party standing. He cites his dissent on third-party standing in Whole Women's Health and restates his distaste for this "handiwork of judges, based on the misguided 'notion that some constitutional rights demand preferential treatment.'" Query whether this hints at where the Court might be going on the standing questions in the Louisiana abortion cases.

Posted by Howard Wasserman on May 7, 2020 at 10:59 AM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink


Sorry but I can't help it.

The phrase "what the Ninth Circuit did was more beyond the pail " should be "what the Ninth Circuit did was more beyond the pale."

Posted by: anon | May 9, 2020 5:01:55 PM

"Any guesses as to why this was an addendum and not part of the opinion?"

The Court often appends lengthy lists of, for lack of a better word, stuff to its opinions, though it usually calls them appendices, esp. when speaking through Breyer. If you're someone who doesn't love footnotes, there's no elegant way to work a list like that into the body of the opinion.

I will say, this result surprises me because the Court seemed very engaged with the merits of the question presented at argument, and obviously could have taken care of this via summary reversal. I don't recall more than a hint of concern about what the Ninth Circuit did. It would seem they found the merits difficult and were able to unify around punting.

On your well-taken comment on severability yesterday, I think Thomas said very similar things two years ago in NCAA v. Murphy.

Posted by: Asher Steinberg | May 7, 2020 8:40:31 PM

The fact that all of the other judges joined his concurrence suggests that it will be very influential in the near future.
Since almost every clinic is refusing to perform abortions, the era of obtainable abortions is certainly a relic of the ancient past.

Posted by: Intrastate Scrutiny | May 7, 2020 12:49:21 PM

Amanda Frost wrote a great article on this general issue, back in 2009.

Posted by: Joe Miller | May 7, 2020 12:01:50 PM

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