INTRODUCTION I. BACKGROUND AND ORIGINS A. Pre-1954 B. The First Invitation: Granville-Smith v. Granville-Smith C. Post-1954 II. A TAXONOMY OF INVITATIONS 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 Court 1 ... at all 2 ... with proper counsel 3 ... due to an anomaly with applying for IFP status III. DID THE COURT ERR IN INVITING AMICI? 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 presented 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 Court IV. A SUMMARY AND h BRIEF PRESCRIPTION CONCLUSION INTRODUCTION
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. Invited amici have included prominent academics, such as Harvard Law School Dean Erwin N. Griswold (7) and University of Utah Professor Paul G. Cassell; (8) a former U.S. Senator, Thomas H. Kuchel of California; (9) future U.S. Attorney General Benjamin R. Civiletti (10) and former Solicitor General Charles Fried; (11) future civic leaders such as Joel I. Klein, (12) recently Chancellor of the New York City schools; attorneys who would go on to become leading appellate litigators, ineluding Stewart A. Baker, (13) David W. DeBruin, (14) Thomas G. Hungar, (15) Michael K. Kellogg, (16) Maureen E. Mahoney, (17) Stephen M. Shapiro, (18) and Thomas C. Walsh; (19) renowned civil rights attorneys, including Mark D. Rosenbaum (20) and William T. Coleman, Jr. (21) (who also had served previously as Secretary of Transportation); and attorneys who have since joined the federal bench, including Judge Rhesa H. Barksdale of the Fifth Circuit, (22) Judge Barrington D. Parker, Jr. of the Second Circuit, (23) Judge Jeffrey S. Sutton of the Sixth Circuit, (24) and Chief Justice John G. Roberts, Jr. (25) Of the forty-three amici, just over half had served previously as law clerks to Justices of the Supreme Court. (26)
There is no question that the representation provided by such highly qualified counsel was superb. But whom were they representing? Why was it necessary to invite them in the first place? More critically, did these uncontested cases run afoul of Article III's limitation of federal jurisdiction to "cases" and "controversies," or the American tradition of adversarial litigation? And, even if the invitations were constitutionally permissible, was it sensible for the Court to make them, rather than waiting for a more typical case to present the same issue? To date, no study has been made of the history, causes, constitutionality, and prudence of inviting an amicus when the respondent (27) fails to defend the judgment below. (28) The Court itself has discussed the practice directly only to state conclusorily that "it is this Court, a part of the Judicial Branch, that must decide whether to exercise its discretion to review the judgment below, and it is well within this Court's authority to appoint an amicus curiae to file briefs and present oral argument in support of that judgment." (29)
This Note challenges that assertion. The Supreme Court is subject to the constraints of Article III and the American adversary system of adjudication no less than any other federal court. In many cases, the Court's role as a neutral arbiter of last resort sits comfortably with, and is even aided by, the assistance of an amicus curiae in support of the judgment below, such as when the lower court's undefended decision concerned its own subject matter jurisdiction--an issue in which courts have an independent interest apart from the litigants, such that the parties cannot "waive" the issue even if they wish to. But in some cases, the invitation of an amicus enables the Court to reach the merits of a legal question that the parties could--and did--choose not to present. Because the Court should have no independent interest in such questions, its decision to construct a way for them to be heard should give us pause. The invitation of amici thus arises at the outer boundary of justiciable "cases" and "controversies" before the Court. Whether, and when, an invitation crosses that line is an important question, because when the Court reaches out to make pronouncements of law and set nationwide precedent on questions that are not properly before it, it undermines the perceived neutrality and legitimacy upon which its authority depends. Therefore, this Note attempts to theorize this practice, to (1) understand whether appointed amici have allowed the Court to exceed those limits in the past, and (2) develop a set of criteria for when it would, and would not, be prudent to employ invited amici in the future. In so doing, I seek also to provide a comprehensive history and description of this peculiar practice. While this Note limits its focus to amicus appointments at the Supreme Court, its reasoning should apply equally to such appointments in the courts of appeals, where the practice is used as well.
This examination proceeds in four Parts. In Part I, I review the origins of the invited-amicus practice in 1954, and I analyze the frequency of its use since then. In Part II, I assemble a detailed taxonomy of amicus invitations, which highlights the various glitches in the traditional adversary system that have given rise to the amici's appointments. Then, in Part III, I evaluate how well the practice fits with the primary goals of the adversary system and with Article III's constraints on federal jurisdiction. I conclude that the practice is justified in many instances, but more troubling in others where it facilitates judicial agenda setting. Finally, in Part IV, I propose a set of criteria based on the evaluation in the previous Part for determining whether an amicus invitation is warranted. Applying those criteria to the forty-three past invitations, I conclude that twenty-eight were justified, but fifteen might not have been appropriate under the circumstances.
BACKGROUND AND ORIGINS
Prior to 1954, the Court had never invited an amicus to appear on behalf of an undefended lower court judgment. This was not, however, for want of respondents failing to defend a judgment below. Rather, the Supreme Court simply heard one-party appeals with some frequency. Marbury v. Madison, for example, was presented only by counsel for Marbury after Secretary Madison resisted the entire proceeding. (30) Later in the nineteenth century, the Court heard forty-five cases between 1870 and 1880 in which "[n]o opposing counsel" appeared, including the significant constitutional voting rights decision in Minor v. Happersett. (31) The Court decided the major Second Amendment case United States v. Miller in 1939 even though only the government filed a brief or appeared at argument. (32) And just one year before the first appointment of an amicus, the Court heard two one-party appeals. (33)
Additionally, the Court had at least once invited an amicus to "enabl[e] the Court to satisfy itself that it has fully considered all that can be said," even though the...