SCOTUS Rebukes Ninth Circuit Panel for "Radical Transformation" of Case

Yes, it was Judge Reinhardt.


United States v. Sineneng-Smith is one of the strangest Supreme Court cases I have read in a long time. The question presented was:

Whether the federal criminal prohibition against encouraging or inducing illegal immigration for commercial advantage or private financial gain, in violation of 8 U.S.C. 1324(a)(1)(A)(iv) and (B)(i), is facially unconstitutional.

The briefing focused extensively on the overbreadth doctrine. Was the statute unconstitutional? Who knows. The Supreme Court did not resolve that question. Instead, the Court unanimously reversed on other grounds. Specifically, the Court found that the lower court abused its discretion through a "radical transformation" of the case.

The District Court resolved the case on narrow grounds:

In the District Court, Sineneng-Smith urged unsuccessfully, inter alia, that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. She was convicted on two counts under §1324(a)(1)(A)(iv) and (B)(i), and on other counts (filing false tax returns and mail fraud) she does not now contest. Throughout the District Court proceedings and on appeal, she was represented by competent counsel.

However, the Ninth Circuit changed the direction of the case:

On appeal from the §1324 convictions to the NinthCircuit, both on brief and at oral argument, Sineneng Smith essentially repeated the arguments she earlier presented to the District Court. The case was then moved by the appeals panel onto a different track. Instead of adjudicating the case presented by the parties, the appeals court named three amici and invited them to brief and argue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: "[W]hether the statute of conviction is overbroad . . . under the First Amendment." App. 122–124. In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici's arguments, that §1324(a)(1)(A)(iv) is unconstitutionally overbroad. 910 F. 3d 461, 485 (2018).

Would you like to take a guess who was on that panel? Of course, Judge Reinhardt, as well as Judges Tashima and Berzon. The final panel opinion explained:

Judge Reinhardt, who was originally a member of this panel, died after this case was reargued and resubmitted for decision. Judge Hurwitz was randomly drawn to replace him. Judge Hurwitz has read the briefs, reviewed the record, and watched video recordings of the oral arguments.

What did Judge Reinhardt ask for?

With the appeal poised for decision based uponthe parties' presentations, the appeals panel intervened. It ordered further briefing, App. 122–124, but not from the parties. Instead, it named three organizations—"the Federal Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild"—and invited them to file amicus briefs on three issues:

"1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?

"2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?

"3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?" Ibid.

The panel gave "amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith's counsel."

SCOTUS rejected this gambit, unanimously. Justice Ginsburg wrote the majority opinion. (Justice Thomas concurred; I will address his opinion in another post).

As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit's judgment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. ….

As earlier observed, see supra, at 4, a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit's radical transformation of this case goes well beyond the pale.

But what about SCOTUS? Don't the Justices do what Judge Reinhardt did all the time? The Court anticipates this criticism:

There are no doubt circumstances in which a modest initiating role for a court is appropriate. See, e.g., Day v. McDonough, 547 U. S. 198, 202 (2006) (federal court had "authority, on its own initiative," to correct a party's "evident miscalculation of the elapsed time under a statute [of limitations]" absent "intelligent waiver").4

4In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case.

The two-page addendum is titled, "Addendum of cases, 2015–2020, in which this Court called for supplemental briefing or appointed amicus curiae."

The Court identified at least five categories of appropriate actions:

  1. "to determine whether a case presented a controversy suitable for the Court's review" (Trump v .MazarsFrank v. Gaos, Wittman v. Personhuballah, Gloucester County School Bd. v. G. G., Kingdomware Technologies, Inc. v. United States)
  2. "to determine whether the case could be resolved on a basis narrower than the question presented" (Zubik v. Burwell, Google LLC v. Oracle America, Inc., Babb v. Wilkie, Carpenter v. Murphy).

  3. "ordered briefing on a constitutional issue implicated, but not directly presented, by the question on which we granted certiorari" and in which "

    the parties had raised the relevant constitutional challenge in lower courts; the question was not interjected into the case for the first time by an appellate forum (Jennings v. Rodriguez, Johnson v. United States)

  4. "appointed amicus curiae: to present argument in support of the judgment below when a prevailing party has declined to defend the lower court's decision or an aspect of it" (Seila Law LLC v. Consumer Financial Protection Bureau, Holguin-Hernandez v. United States, Culbertson v. Berryhill, Lucia v. SEC, Beckles v. United States, Welch v. United States, McLane Co. v. EEOC, Green v. Brennan, Reyes Mata v. Holder)

  5. "appointed amicus curiae . . . to address the Court's jurisdiction to decide the question presented (Montgomery v. Louisiana)

There is, of course, one prominent example where the Supreme Court completely hijacked a case and decided it on alternate grounds: Mapp v. Ohio (1961). This famous criminal procedure case was litigated as a First Amendment challenge to an obscenity prosecution. However, on appeal, the Supreme Court transformed it into a Fourth Amendment case. Here, the Justices "incorporated" the so-called exclusionary rule.

Justice Harlan's dissent criticized the majority's eagerness to decide this question:

From the Court's statement of the case, one would gather that the central, if not controlling, issue on this appeal is whether illegally state-seized evidence is Constitutionally admissible in a state prosecution, an issue which would, of course, face us with the need for reexamining Wolf. However, such is not the situation. For, although that question was indeed raised here and below among appellant's subordinate points, the new and pivotal issue brought to the Court by this appeal is whether § 2905.34 of the Ohio Revised Code, making criminal the mere knowing possession or control of obscene material, and under which appellant has been convicted, is consistent with the rights of free thought and expression assured against state action by the Fourteenth Amendment. That was the principal issue which was decided by the Ohio Supreme Court, which was tendered by appellant's Jurisdictional Statement, and which was briefed and argued  in this Court.

In this posture of things, I think it fair to say that five members of this Court have simply "reached out" to overrule Wolf.

The Supreme Court's addendum is more of a CYA. Here, it seems there was no consensus of how to resolve the case, so they simply dumped the appeal based on Judge Reinhardt's excesses.

NEXT: Michigan House and Senate Move to Intervene, and Petition for Rehearing En Banc in "Basic Minimum Education Case"

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  1. That is a pretty stinging rebuke. SCOTUS unanimously held that they abused their discretion by playing these games. (Thomas concurred, but then added something about facial attacks.) And, in a opinion written by one of the liberals, Ginsburg.

    1. I wonder if Roberts assigned the opinion to Ginsburg, or if she volunteered.

      1. Whenever the Chief Justice is in the Majority, he assigns the opinion. Here, it was unanimous. SHe may have expressed a preference; I’m not sure how that works in practice.

        1. In the other big case today, the Bridgegate case, was also 9-0 and Roberts assigned the opinion to Kagan.

    2. It’s especially stunning because it’s unanimous and because the courts foremost liberal icon wrote the opinion and wrote a pretty harsh one at that.

      I’d also make the point that the role of the appellate courts is somewhat different than the role of the Supreme Court. The Supreme Court should have a wider view of the questions presented and a view toward making the law more uniform.

      I wonder if to some extent they aren’t concerned that the lower courts have gone too far in exerting their own power beyond what the Supreme Court considers proper.

      There are 673 authorized district court judges and an undetermined number on senior status any one of who can hear cases and unilaterally decide to change national policy while the Constitution requires at least 50 Senators together with 218 Representatives to agree to change a law.

  2. As SCOTUS noted, the problem is not that these 3 judges did this–The Sup Ct does it, and I have no doubt that all circuit districts do this as well. The problem was the scope…it shocked the conscience of the Sup. Ct. So, it’s merely a matter of degree.

    We now know the outer bounds of what is not acceptable. And presumably, any appellate court action that is within the “exceptions” SCOTUS laid out will be acceptable. But that leaves a ton of gray area in the middle, since this opinion did not say, “These 5 categories are the only times an appellate court may do this.”. So there’s lots of wiggle room for appellate courts to do the same, in the future. For some, their action will pass Sup Ct muster. For others, it’ll be overturned–as it happened in this case.

    1. “We now know the outer bounds of what is not acceptable.”

      I wouldn’t say we even know that. Evidently you can’t give the amici twice as much time as the actual parties to the case. Would equal time have been acceptable? Maybe, maybe not, the Court didn’t say.

      1. Absolutely. The problem (bug? feature??) with the opinion is that is says, “You can’t do this, because you did A, B, C, and D.”

        But of course, this leaves a lower court free to try and do A, B, and D. Or B, C, and D. Or to do B (but twice as “much”) and A (but a little less) and not C or D. As I’ve posted several times in the past; there is a fine line between avoiding dicta and punting major issues down-the-road, while it might be better to have clear lines drawn now, for the benefit of all sides of various issues.

        I see lots of potential litigation in the future. And I don’t think SCOTUS will want to grant cert on all of them, so some bad results will slip through. The silver lining (from my perspective) is that this seems like an entirely non-partisan issue . . . we all–right now–have zero idea if any particular “side” will be benefited or harmed by the lack of clear guidelines.

    2. I don’t think there’s anything particularly remarkable or outrageous about asking the parties to brief an issue that wasn’t directly addressed in their arguments, and I agree that courts (including the Supreme Court) do that all the time.

      But here, the Ninth Circuit didn’t just come up with a new issue and ask to have it addressed: they chose three entities with no stake in the case, and asked them to make the arguments instead of any of the parties, and to make them after the case was otherwise ripe for decision. I don’t think the Supreme Court, or any other federal court to my knowledge, has done anything similar, and I’m glad they got told to knock it off.

      (There are a couple of areas—standing and jurisdiction, most notably—where federal courts have an obligation to conduct their own analysis, regardless of the parties’ arguments. But this isn’t one of them.)

      1. Generally, a party is supposed to raise and issue below, and if not it is not preserved for appeal. The same happens if a party fails to raise an issue in its appeal brief.
        Apart from jurisdiction (which a federal court is obligated to raise sua sponte), it is frowned upon for a court to itself raise issues on appeal. If the parties did not think it important, then why should the Court?

  3. Interesting that RBG’s addendum doesn’t distinguish Certiorari review from direct review, perhaps.

    So the 9th Circuit converted an as-applied challenge to a species of facial challenge that allows that the present case might not be a violation. “Concrete adversity” alarm bells then go off.

    Yes, but: in a 1A overbreadth case the fact that the plaintiff’s conduct might be legitimately prohibited doesn’t mean that the plaintiff wasn’t chilled by the overbreadth. We know what she did, but it’s impossible to establish what she might otherwise have done. A plaintiff therefore isn’t categorically precluded from representing (or their situation making plain) the interests of the larger group.

    Mr. D.

  4. Reinhardt’s ghost got slapped here but his basic premise [“do what you want, S/C can’t catch them all”] worked for him for decades.

    GOP judges ought to do the same.

    1. No. Judges should decide the cases before them in good faith, neither abstaining from rulings they would prefer not to make, nor exceeding their ambit in ruling as they wish they could. Reinhardt was a bad judge when he did it. Judges appointed by GOP presidents are (or will be) bad judges when they do it.

  5. Unfortunate; as a First Amendment nerd, I was really looking forward to the decision on the merits in this case. The decision has broad implications about the circumstances under which encouraging people to violate the law can be punished under the First Amendment. This is a bigger disappointment than Elonis!

  6. Josh, you did one thing that looked really dishonest to me. (If I am wrong, then I apologize in advance). You allude in the heading–and state clearly in the body of your OP–that Judge Reinhardt is responsible for this. But it was my understanding that orders come from the entire 3-judge panel, and not from a specific judge. (I have never clerked for a federal appellate judge. So, again; if I’m wrong about this…I’ll publicly apologize.)

    But if I am correct; I am not understanding why you single out Reinhardt. If your post’s header had said, “Yes, it was Judge Reinhardt, along with two other judges on the panel.”, then that would be accurate.

    And in your actual post, you write, “What did Judge Reinhardt ask for?” Again, was it specifically and exclusively Reinhardt? I did not see anything in the court’s opinion that says this (although I admit to only quickly skimming through it). If it was the panel that asked, then it’s deceptive and misleading to suggest that it came only from Reinhardt. (And, if it does turn out that it *did* come only from Reinhardt, then doesn’t it mean something that no other judge objected, even after Reinhardt died?)

    (I was struck by the fact that the court opinion specifically thanks amici for the helpful briefs and their oral advocacy. Is that sort of shout-out more common than it seemed to me?)

    1. The order was indeed issued in the name of all three judges on the panel—although as the senior judge, Reinhardt was in charge of “presiding” over the panel. If you’re interested in complete speculation, this does seem like he sort of thing he would come up with, but we’ll never know for sure exactly what his role was.

      1. Thanks for the confirmation. Reinforces my thought that Josh Blackman was being really dishonest in his post. That’s a disappointment.

  7. It’s pretty obvious who’s really to blame here, and it’s certainly not Judge Reinhardt.

    From U.S. v. Sineneng-Smith, 910 F.3d 461 (2018) [p. 4 of the slip op]:

    Eugene Volokh , Scott & Cyan Banister First Amendment Clinic, UCLA School of Law, Los Angeles, California, as Amicus Curiae.

    1. Well as far back, and really further, as John Adams defending the British soldiers in the Boston Massacre, its established that being appointed counsel, and arguing a position as effectively as possible is no blemish on an attorney’s record.

      And I don’t think the court here even reached the conclusion the legal argument was wrong.

      The issue was plainly that the court should not have appointed amici to argue the case for the parties, not that the argument they afvanced was erroneous.

      But i will say that the attorney was clearly committing fraud, then trying to claim it was advocacy.

      1. …did you think I was actually blaming Eugene for something, as opposed to poking a little fun? Having a larf? Taking the piss? Yanking his chain?

  8. “…federal judges are appointed for life, not for eternity.”

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