When SCOTUS Amends The Question Presented

On Friday, December 14, the Supreme Court granted cert in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. That petition raised two questions:

1. Does a state violate the First Amendment's Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state's criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality "beyond a reasonable doubt?"

Today, the Court issued a subsequent order that amended the grant:

The order granting the petition for a writ of certiorari is amended as follows: The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.

This sort of amendment is not common, but it does happen. My quick research found several such orders in recent years. And in each case, the Court limited the questions presented, or rewrote the QP altogether:

• Upon consideration of the motion to modify or amend the question presented, the question presented in these cases is amended as follows: Whether the State of Alabama's 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Merrill v. Caster, 142 S. Ct. 1357 (2022).
• The order granting the petition for writ of certiorari is amended as follows: Petition for writ of certiorari is granted limited to Question 1 presented by the petition. Thacker v. Tennessee Valley Auth., 585 U.S. 1058 (2018).
• The order noting probable jurisdiction is amended as follows: In this case probable jurisdiction is noted limited to Questions 1 and 2 presented by the statement as to jurisdiction. Harris v. Arizona Indep. Redistricting Comm'n, 576 U.S. 1083 (2015).
• The order entered September 25, 2001, is amended as follows: "Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted limited to the following question: Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?" Atkins v. Virginia, 534 U.S. 809 (2001).
• The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." Olmstead v. L.C., 525 U.S. 1062(1998).
• The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: "The petition for a writ of certiorari is granted limited to Question 1 presented by the petition." Olmstead v. L.C., 525 U.S. 1062, 119 S. Ct. 633, 142 L. Ed. 2d 571 (1998).
• The order granting the petition for writ of certiorari is amended as follows: The petition for writ of certiorari is granted limited to the following question:
  Is interest earned on client trust funds held by lawyers in IOLTA accounts a property interest of the client or lawyer, cognizable under the Fifth Amendment of the United States Constitution, despite the fundamental precept of IOLTA that such funds, absent the IOLTA program, could earn interest for the client of lawyer Phillips v. Washington Legal Found., 521 U.S. 1117 (1997).

I found one order in which Justices Blackmun and Stevens dissented from amending the QP:

• The order of December 16, 1991, granting the petition for a writ of certiorari, is amended as follows: The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are requested to brief and argue the following question: In determining whether to grant a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, should a federal court give deference to the state court's application of law to the specific facts of the petitioner's case or should it review the state court's determination de novo ? Justice BLACKMUN and Justice STEVENS dissent. Wright v. West, 502 U.S. 1021 (1991).

Comments

[F.D. Wolf]

"Never answer the question that is asked of you. Answer the question that you wish had been asked of you." - Robert McNamara

[ReaderY]

Seems straightforward. Q1 is really the main question. And if it’s answered in the negative, there’s no need to bother with Q2.

I donmt see answering fewer than all the questikns presented as amending a question. It seems consistent with the concept of discretionary review. If an appellant presents a hundred questions, is the Court really required to answer all of them if they want to answer any of them? If so one could easily see logrolling and similar tactics used in a judicial as well as a legislative context when important cases the parties suspect the Court will want to address come up.

[David Nieporent]

Why is Prof. Blackman conflating amending the grant with amending the Q.P.? Rewriting what the petitioner is asking the court is very different than saying "We granted cert on two QPs, but upon reflection we've decided we only want to answer one of them." It's, after all, utterly routine for the court to grant cert on fewer than all the QPs.

[JoeFromtheBronx]

Perhaps, his desire to be FIRST! leads him not to think things through properly.

[ReaderY]

On the merits of Q1, while there may indeed be cases where a for-profit proprietor is runnning what is essentially a fraud, an ordinary business with a patina of religiousity to take advantage of tax and regulatory advantages religious organizations get, this particular case would seem very far from it. Catholic Charities appears to be engaging in work that the Catholic Church, and indeed many religious organizations, have been doing for hundreds and indeed thousands of years.

To say that it’s not religious because an ordinary secular business could do the same thing is like treating a stay-at-home spouse as a commercial business on grounds a prostitute, surrogate fertility services, a housekeeper, a chauffer, and a nanny together can do the same thing. Even when externally it’s the same physical act, it’s not the same thing.

[Lee Moore]

This whole business seems a bit odd to me.

Their job is to decide the case or controversy in question. So they need to answer all the questions that need to be resolved to decide the case. So isn’t the question requiring their attention always and necessarily “Does A win or does B win ?”

So if they announce up front that they only need briefing on one question, that presumably means they have already decided that all the other questions which might need to be answered to resolve the case have already been answered correctly by the lower court, or so obviously wrongly that they’ve already decided their wrongness.

Seems like a lot of work to put in up front, and makes you wonder why they ever need to hear counsel on any point.
Why not just read the opinions in the courts below and issue a judgement ?

[Lee Moore]

I see that I am not the first to think this is a bit odd :

https://reason.com/volokh/2022/05/12/the-supreme-courts-olmstead-power-grab/?itm_source=parsely-api

[Lee Moore]

Ooo ! A fifteen monosyllable sentence.

[Vandalia]

It is comparing apples and pears, but at least for state supreme courts, it seems more the rule than the exception that when a certified question is presented - either by a federal court or a lower state court - the certified question is reformulated by the state court.

The "certified question" is probably the closest state analog to cases heard by the U.S. Supreme Court.

[David Nieporent]

When the federal courts certify questions to state courts, they generally say something like "Please tell us whether X or Y is the correct interpretation of this statute… or answer anything else you feel is appropriate." (I'm paraphrasing.)