Brian Goldman Weighs in on the Constitutional Questions of SCOTUS Tinkering

Bloomberg BNA Report for Executives | August.11.2015

Brian Goldman, a managing associate in Orrick’s Supreme Court and Appellate group in the San Francisco office and a former Supreme Court clerk, spoke to Bloomberg BNA Report for Executives regarding the U.S. Supreme Court's common practice of modifying questions presented in petitions seeking high court review. Brian and others believe that this practice is often justified, but can occasionally stretch the boundaries of the court’s power to decide only the cases and controversies litigants present it.

Brian told Bloomberg BNA that there are essentially three ways the Supreme Court can reformulate the questions presented, all of which are "common and occur in both ordinary and high-profile cases.”

First, the court may alter existing questions to make them clearer or less argumentative, which is generally not problematic. In fact, these changes often refine the focus of the case.

Second, the court may add entirely new questions to a case, as it did in the 2010 campaign-finance decision, Citizens United. Brian said that adding a question "is quite literally reaching out to decide a question that the parties did not bring to the court and that the lower courts generally never addressed," which, at times, is a cause for concern. "It is the Court taking the case before it and remolding it into something else."

However, Brian added that "if there is a concrete dispute between the parties on the new question," then "the court has the benefit of a truly adversarial presentation that is consistent with the 'case' or 'controversy' requirement." He also noted that "courts generally have a fair amount of flexibility in choosing which aspect of cases to center their decision on."

Adding a question can sometimes be more consistent with our adversarial judicial system, Brian observed. He explained, "Asking the parties to brief (or rebrief) an added question is far preferable to the alternative of deciding a case on a new ground that the parties were never given the opportunity to address.” But sometimes other options are even more sound, he noted. “[T]he Court could, of course, limit itself to only the questions presented by the parties, and perhaps a Justice might then write a concurrence inviting future parties to raise a broader or different question in a new case… That often happens, and it does show more restraint than jumping ahead to decide the question now.”

Third, to avoid wasting time, the court may choose not to hear certain questions raised in petitions seeking review. This third type of alteration is the "least problematic" way for the court to alter the questions presented, Brian said. He pointed out that "just as the Court has the discretion to engage in agenda-setting by choosing which cases to hear, it has the discretion to hear only those aspects of cases that are worthy of review.” Most often, the court limits the questions "simply to clarify what it will (and, by inference, will not) consider, so that the parties do not waste time on other or case-specific details."