Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?

November 10th, 2010

I posed this question last year in this blog post, when I asked if it is kosher for the Court to appoint counsel.

Even if no one is willing to argue the case, the Justices, sua sponte, select counsel to argue and brief the case. I suppose the Justices have a vested interest in making sure that a case granted cert is effectively argued on both sides. But isn’t this kinda meddling? If the party below does not want to contest the case, why should the Justices get involved. Is there even a live case or controversy at this point? Is this Kosher?

Brian Goldman has an article forthcoming in the Stanford Law Review that addresses just this issue, titled Should the Supreme Court Stop Inviting Amici Curiae to Defend Abandoned Lower Court Decisions?. Here is the abstract:

Forty-two times since 1954 – approximately twice every three Terms – the Supreme Court has granted review in a case in which the party who prevailed in the lower court refused to appear to defend its victory below. Faced with this unusual, non-adversary posture, the Court has tapped an attorney to brief and argue the case as an amicus curiae in support of the judgment below. This practice raises a number of questions: First, at the most basic descriptive level, why has it been necessary? If the respondents themselves do not wish to defend their victories below, then whom are the appointed amici representing? Second, as a matter of doctrine, did these uncontested cases not run afoul of Article III’s limitation of federal jurisdiction to “cases” and “controversies,” or the American tradition of adversarial litigation? And third, even if the invitations were constitutionally permissible, was it prudent for the Court to spend its scarce certiorari grants on them rather than waiting for more traditional cases to present the same issues? In the first academic work to examine the practice in detail, I seek to answer those questions. The first Part assembles a history of the appointed-amicus practice, tracing it to a suggestion made by Justice Frankfurter (a former scholar of federal courts) in an uncontested divorce case in 1954. The second Part creates a detailed taxonomy that identifies four broad categories into which these cases fall, based on the reasons the appointment of an amicus was deemed necessary. Then, the third Part evaluates how well the practice fits with the “case or controversy” requirement and the adversary system. I conclude that, while most amicus appointments were actually justified (for a number of distinct reasons), many represent judicial overreaching. Finally, I suggest that, as a matter of prudence, the Court should adopt a more minimalist approach to these less-than-fully-adversarial proceedings, lest it appear to be reaching out for issues it wishes to address even though they do not arise organically.

Looks like an interesting read. I still don’t think this is kosher.