Reading the Reviews

“You can have all the rules of what law you want, but until it’s applied to people in cases, there’s no rule of law functioning.” 

Chief Judge Emeritus J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit talks to David F. Levi about his work with chief justices and judiciaries from around the world to strengthen the rule of law.

Judge Wallace is among the longest-serving federal court of appeals judges in history, and at age 93, he still maintains an active caseload. Judge Wallace is the 2022 recipient of the Bolch Prize for the Rule of Law.

* Judgment Calls is a podcast hosted by David F. Levi, director of the Bolch Judicial Institute, former dean of Duke Law, and former Chief Judge of the U.S. District Court for the Eastern District of California. In Judgment Calls, Levi interviews judges about their work, their lives, and the challenges and opportunities they see in their courts.

“Arbitrary control over its own docket is the hallmark of the modern Supreme Court. While the Court’s power to choose its cases is a frequent subject of study, its practice of preselecting questions for review has received almost no attention. This is particularly surprising since the Court openly adds or subtracts questions in some of its most consequential and politicizing cases. Yet despite the significance of this practice, its origins are poorly understood. This Essay uncovers the hidden history of the Court’s question-selection powers and reveals an important—and possibly intractable—conflict between the Court’s legal authority and its practice. 

Scholars usually explain the Court’s agenda control as either a power granted by Congress or a natural component of the judicial power. Tracing the statutory, legislative, and common law histories, this Essay presents a novel challenge to these standard narratives. The Court’s custom of targeting specific questions is not grounded in the history of appellate practice and Congress never intended to, and likely never did, give the Supreme Court the power to select its own questions. This history has profound repercussions for the Court’s appellate jurisdiction. The question-selection power rests uneasily with both statutory law and Article III’s ‘case or controversy’ requirement, risks doing fundamental injustice to litigants, and pulls the Court deeper into politics—all of which put its legitimacy at risk. Abandoning this practice would almost certainly limit the Court’s ability to answer hot-button political questions, but it might also help to preserve the Court’s legitimacy.”

* Assistant Professor, Penn State Law (University Park).

“Our adversarial system of adjudication is characterized by active parties and (relatively) passive judges; the parties identify the issues in dispute, and the judge decides those issues. Sua sponte decision-making—whereby a judge raises and decides new issues not presented by the parties—undermines this adversarial system. For decades, courts and commentators have struggled to explain when sua sponte decision-making may be appropriate. That issue was particularly important to the late Justice Ruth Bader Ginsburg, who has been described as ‘The Great Proceduralist.’ In a series of oral arguments and opinions during her tenure on the Supreme Court, Justice Ginsburg repeatedly invoked the ‘principle of party presentation’—a term used in comparative procedure literature to describe the principle that the parties, not the judge, should determine the issues to be decided in a case—and identified real limits to judicial discretion in raising new issues. One of her last opinions, in United States v. Sineneng-Smith (2020), reaffirmed a robust principle of party presentation and rebuked a court of appeals that raised a new issue without sufficient justification, relegated the parties to a secondary role in the litigation, and ultimately disregarded the issues they presented. In Justice Ginsburg’s opinions, including Sineneng-Smith, litigants and judges alike may find useful guideposts that constrain judicial discretion in deciding whether to raise new issues sua sponte. Judges considering whether to raise a new issue sua sponte should determine whether they are required, forbidden, or permitted to do so; and where permitted, they should explain how specific institutional interests of the judiciary balance or outweigh the parties’ interest in controlling the litigation. If a judge wishes to depart from the principle of party presentation, the judge should explain the specific circumstances and the interests that make the case exceptional—something more than the judge’s having what he or she thinks is a ‘better’ theory of the case.” 

* Assistant Professor of Law and Director, Lawyering and Legal Reasoning Program, Samford University.