Check the invitation: The trouble with appeals invited by Supreme Court Justices.

• Author: Gentithes, Michael

1. INTRODUCTION

   The U.S. Supreme Court sits atop the nation's adversarial system of law, one premised upon the idea that the most just results will be achieved through party presentation of the issues in the crucible of the litigation process. (1) But litigation in the Court increasingly fails to reflect the ideals of procedural justice embedded in that system. Parties and their attorneys play an ever-diminishing role in actually shaping the direction of the law in the nation's highest court. (2) Instead, modern Supreme Court Justices exercise top-down control of the direction of new doctrine to the exclusion of the parties themselves. While the demands of their discretionary docket have decreased, Justices have vastly increased the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties' briefs than ever before. (3) At the same time, oral arguments are no longer a genuine opportunity for the parties to be heard. They instead resemble a cocktail party amongst the Justices, where the attorney at the lectern is little more than a straight man in the Justice's repartee over the appropriate direction for the law's next evolution. (4)

   A microcosm of the trend of top-down lawmaking in the Supreme Court can be seen in the way Justices frequently reach beyond the immediate dispute to invite appeals on related topics that they believe future litigants ought to raise. The line of cases concerning the constitutionality of capital punishment demonstrates this trend. As this Article details, invited appeals often come in the form of what I call soft invitations. Simply phrased, those are open questions to the bar that a Justice thinks future litigants should answer, such as Justice Golderg's dissent in Rudolph v. Alabama inviting briefing on three specific questions related to the constitutionality of capital punishment. (5) Increasingly, invited appeals perniciously offer detailed analytical answers to their own questions in what I call opinion-briefs. one example of this phenomenon is Justice Breyer's detailed forty-four-page dissent in Glossip v. Gross explaining the four specific arguments he would find persuasive for ruling the death penalty unconstitutional, including reams of social science data and dense string cites. (6) Such opinion-briefs are more akin to persuasive advocacy than neutral resolution of a legal dispute; they reach issues the parties never raised in great detail nor with great conviction. This Article critiques opinion-briefs, used by both liberal and conservative Justices to transparently ghostwrite their favored reasoning in a long-standing doctrinal debate, (7) for two reasons.

   First, the frequent use of opinion-briefs expands the rift between our legal system's faith in adversary procedure and the actual process of litigation in our nation's highest court. Adversarial litigation is our legal way of life, one reflected in the structure of our legal system from top to bottom. (8) This Article begins by describing the Court's departure from traditional adversarial litigation that is driven in part by Justices' frequent use of opinion-briefs. The Article then normatively analyzes that departure from the adversarial ideal. Though opinion-briefs and a top-down style of jurisprudence might seem attractive for a Court that has become the primary policymaking body in our federal government, this Article suggests that, at first blush, opinion-briefs are undesirable. Significant theoretical justifications for opinion-briefs and other forms of top-down decision-making would be necessary to overcome the institutional threats within them that this Article identifies.

   Second, opinion-briefs are troubling given their tendency to undermine many traditional notions of appellate jurisprudence. The author of an opinion-brief appears far from neutral, suggesting that both she and perhaps the Court as a whole have decided in advance an issue that the parties have not yet raised and argued. Opinion-briefs likewise disregard any sense of judicial humility; the opinion-brief's author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions that the bar might muster. opinion-briefs frequently call for trimming or reversing longstanding bodies of precedent, offending notions of stare decisis inherent in appellate judging. (9) Additionally, opinion-briefs tempt the Justices to misallocate their limited resources by wading into the morass of policy debates with resolutions likely to be driven by massive social science research efforts. (10)

   This Article proceeds in four Parts. First, it categorizes invited appeals into the two species discussed above, soft invitations and opinion-briefs, providing a growing catalogue of the latter. In the next two Parts, the Article normatively analyzes those invited appeals, concluding that, while soft invitations have many laudable qualities, opinion-briefs are extremely troubling. Lastly, the Article offers specific advice for practitioners who encounter opinion-briefs, like death penalty abolitionists determining their next move in the wake of Breyer's Glossip opinion, arguing that they should not accept the authoring Justice's invitation. (11) Patience is more prudent than accepting an opinion-brief's request for specific arguments.

2. CATEGORIZING INVITED APPEALS

   Concurring and dissenting Justices often describe not only the outcome they believe to be correct, but also the repercussions that ought to flow from that outcome or the questions that remain open in light of that ruling. Though perhaps unnecessary, expansive obiter dicta is an accepted part of the judicial process, a sign of inquisitive and forthright jurists considering all relevant factors while seeking the legally correct outcome. This Article's focus, however, is not those relatively innocuous and meandering judicial musings. Instead, I focus on what I call invited appeals, which I further subdivide into two species: (1) soft invitations and (2) opinion-briefs.

   1. Soft Invitations

      When Justice Goldberg became interested in the constitutionality of capital punishment in the early 1960s, he circulated an open memo to his fellow Justices asking whether the Court "should now request argument and explicitly consider this constantly recurring issue." (12) Though rebuffed by his colleagues, who did not agree that an invitation for argument on that ultimate question was appropriate, Goldberg decided to issue a generalized invitation for future litigants to answer questions about the death penalty's constitutionality. (13) Goldberg's dissent in Rudolph is a prime example of a soft invitation for an appeal. (14) Without thoroughly researching or prejudging an issue that had not received adequate attention from the Court, Goldberg simply posed three open questions to the bar. First, he asked whether the punishment of death for the crime of rape violated the Eighth Amendment; second, whether the taking of a life for a crime other than murder was impermissibly disproportionate to the offense; and third, whether the permissible aims of punishment, such as deterrence, isolation, and rehabilitation, might be served by penalties less severe than death. (15)

      An opinion such as Goldberg's is a form of judicial advocacy, and it certainly constitutes judging with an eye toward controversies beyond the immediate case. However, it is not reminiscent of express advocacy by the party to that future appeal. These soft invitations do not suggest how the author is leaning in answering the questions posed (at least not explicitly), and they do not provide a roadmap for the future litigants to follow in order to succeed on one side of that question. They are inquiries offered without an answer, genuine requests for deeper consideration.

      A more modern example of a soft invitation can be found in Justice Alito's concurring opinion in Federal Election Commission v. Wisconsin Right to Life, Inc. (WRTL II), (16) which preceded the Court's incessantly criticized, and even presidentially discredited, decision in Citizens United v. Federal Election Commission. (17) In WRTL II, Alito used a single-paragraph concurrence to indicate the possibility that the Court would address the constitutionality of McConnell v. Federal Election Commission (18) in a future case, without setting out the arguments or the likely outcome: "If it turns out that the implementation of the as-applied standard set out in the principal opinion impermissibly chills political speech, we will presumably be asked in a future case to reconsider the holding in McConnell v. Federal Election Comm'n, that [section] 203 is facially constitutional." (19) That kind of generalized invitation may have come with a hint of foreshadowing toward Alito's eventual opinion on the topic, but it was at least phrased as an opportunity for advocates on both sides of the question of McConnell's holding to make their cases. Even commentators who favor campaign finance reform have noted that Alito's opinion merely "signal[s] to a litigant that now is a good time to ask for the overturning of precedent," rather than dictating exactly how and why that precedent should be discarded. (20) Prima facie, soft invitations are nothing more than genuine requests for further investigation by those litigants most interested in the topic highlighted by the opinion. (21)

   2. Opinion-Briefs

      Standing in contrast to his former mentor's soft invitation in Rudolph is Justice Breyer's recent dissenting opinion in Glossip. There, Justice Breyer began by similarly posing several topics for discussion: whether capital punishment had become seriously unreliable, whether its application was too arbitrary, whether the delays in carrying out that punishment were unconscionable, and whether the tide of public opinion was turning against such penalties. (22) But Breyer was not...