Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices

Abstract

Although the United States Supreme Court sits atop our nation’s adversarial legal system, litigation in the Court increasingly fails to reflect the ideals of procedural justice embedded in that system. Parties and their attorneys play a shrinking role in actually shaping the direction of the law. Capital punishment litigation in recent terms exemplifies how modern Supreme Court Justices exercise top-down control of the direction of new doctrine to the exclusion of the parties themselves. Too often, Justices reach beyond the immediate dispute to invite appeals on related topics that they believe future litigants ought to raise.

Such invited appeals come in two forms of varying normative desirability. First are “soft invitations,” which are simply-phrased, open questions to the bar that a Justice thinks future litigants should answer. Second are “opinion-briefs,” which perniciously offer detailed analytical answers to the Justices’ own questions.

In this Article, I argue that opinion-briefs are extremely dangerous 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. Though opinion-briefs and a top-down style of jurisprudence might seem attractive for a Court that has become the primary policy-making body in our federal government, significant theoretical justifications for opinion-briefs and other forms of top-down decision making would be necessary to overcome the institutional threats that they create. Second, opinions-briefs undermine many traditional notions of appellate jurisprudence. The author of an opinion-brief appears far from neutral, disregards any sense of judicial humility, and often calls for trimming or reversing longstanding bodies of precedent. Opinion-briefs also tempt the Justices to misallocate their limited resources by wading into a morass of policymaking better left to coordinate branches of government.