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

Article excerpt

     A. Pre-1954
     B. The First Invitation: Granville-Smith v. Granville-Smith
     C. Post-1954
     A. The Respondent Changes Its Position on the Question Presented
        1. Confessions of error by the Solicitor General
        2. Invitations of amici in response to changes of position by
           the Solicitor General
     B. Neither Party Accepts the Lower Court's Sua Sponte Decision
        1. Subject matter jurisdiction
        2. Nonjurisdictional grounds
           a. Asserting waived arguments
           b. Imposing harsher punishments
           c. Enforcing court-created rules
     C. The Supreme Court Raises a Question Sua Sponte
     D. The Respondent Fails to Enter a Proper Appearance Before the
        1 ... at all
        2 ... with proper counsel
        3 ... due to an anomaly with applying for IFP status
     A. Consistency with the Goals of the Adversary System
        1. Accuracy
        2. Acceptability
        3. Neutrality
     B. Consistency with the Case or Controversy Requirement
        1. The respondent changes its position on the question
        2. Neither party accepts the lower court's sua sponte decision
        3. The Supreme Court raises a question sua sponte
        4. The respondent fails to enter a proper appearance before the


On April 15, 2008, the Supreme Court heard oral argument in Greenlaw v. United States and Irizarry v. United States. In the first case, petitioner Michael Greenlaw had appealed his criminal conviction to the Eighth Circuit and challenged the length of his sentence. (1) That court affirmed his conviction, but then went on to order that his sentence be increased, even though the government had declined to file a cross-appeal seeking that increase. (2) During oral argument, Justice Ginsburg, who would go on to write the Court's opinion reversing the Eighth Circuit's opinion, questioned why the American tradition of adversarial litigation should permit a court to do something on behalf of a party who did not ask for it:

   It seems to me that our system rests on a principle of party
   presentation as many systems do not. In many systems, the court
   does shape the controversy and can intrude issues on its own. But
   in our adversarial system, we rely on counsel to do that kind of
   thing. So, my problem with [the court of appeals' sua sponte
   action] ... is what business does the court have to put an issue in
   the case that counsel chose not to raise? (3)

Yet this question was addressed to counsel who himself represented no party in the case. The government agreed with Greenlaw that the Eighth Circuit had exceeded its authority, so it had suggested the Court send the case back. The Court declined. Instead, it invited Jay T. Jorgensen, a former law clerk to Chief Justice William Rehnquist and Justice Samuel Alito, "to brief and argue this case, as amicus curiae, in support of the judgment below." (4) And in the other case argued that same day, Irizarry, the government again sided with a criminal defendant challenging his sentence, this time conceding that a district court had committed procedural error in issuing the sentence. (5) So a second attorney, former Justice Clarence Thomas clerk Peter B. Rutledge, received a similar invitation to defend a decision that neither party supported. (6)

While it was coincidental that these two cases were argued the same day, this type of appointment has not been uncommon in the Court's recent history. Since 1954, the Court has tapped an attorney to support an undefended judgment below, or to take a specific position as an amicus, forty-three times--slightly more than twice every three Terms on average. …