Reargue or Plow Ahead?

By Mike Dorf

In the excellent back-and-forth among commenters on my posts on the federalism argument in the DOMA case (here and here), the following question was raised:  If the Court is inclined to resolve the case by holding that Congress lacked the affirmative power to adopt DOMA's federal definition of marriage, should it set the case for reargument and give the parties the opportunity to brief and argue the merits of that question?  I wrote in response that in principle the answer is yes, but that the Court's practice has been inconsistent. Here I want to connect that response to some recent developments.

Let's begin with the Supreme Court Rules.  Rule 14.1 states, in relevant part:
The statement of any question presented is deemed to comprise every subsidiary question fairly included therein. Only the questions set out in the petition, or fairly included therein, will be considered by the Court.
As a preliminary matter, one could read these statements as warnings to the parties but not binding on the Court itself.  In fact, however, the Justices consider themselves bound too, or at least they typically say they do.  And for good reason.  The Rule serves both an interest in fairness to the parties--if the Court is going to rule against a party, at least give the party an opportunity to present an argument for a different outcome--and an interest of the public: In an adversary system, we rely on the parties to develop the best arguments for and against any particular ruling, including the rules of law announced by court decisions; if the Court does not have full briefing and argument on some proposition, it is more likely to err with respect to that proposition than if it does.

Thus, so far it looks like the argument for reargument--or at least for supplemental briefing--in Windsor is pretty strong, if the Court plans to rely on the federalism ground for invalidating DOMA. But in fact, as I noted in the comments, recent practice suggests that the Court won't take that route.

Consider Comcast v. Behrend, which was handed down the very day that Windsor was argued, literally minutes before the Windsor argument began.  The original cert petition in Comcast presented the following question, as drafted by Comcast's lawyers:
whether a district court may certify a class action without resolving “merits arguments” that bear on Rule 23’s prerequisites for certification, including whether purportedly common issues predominate over individual ones under Rule 23(b)(3).
The Supreme Court granted the cert petition, but in an order that stated that the grant was limited only to the consideration of the following, different question:
Whether a district court may certify a class action without resolving whether the plaintiff class has introduced admissible evidence, including expert testimony, to show that the case is susceptible to awarding damages on a class-wide basis.
But then when it came time to decide the case, the Court discovered that its reformulated question would not resolve it because the petitioner had failed to preserve the necessary objection to the admissibility of the evidence that seemed to be assumed by the Court's reformulated cert question.  Four Justices therefore wanted to DIG, that is, dismiss the writ as improvidently granted.  But it takes six votes to DIG.  (Since it takes only four votes to grant cert--the so-called "rule of four"--permitting even five votes to accomplish a DIG would undermine the rule of four.)  So the four DIGgers ended up dissenting on the merits.

Meanwhile, the majority decided the case by ruling on the basis of its resolution of the original cert question as posed by the petitioner Comcast.  Justice Scalia (author of the majority opinion) argued (in his footnote 4) that doing so was somehow encompassed by the cert question, but I think his claim is largely unpersuasive.  Certainly the respondent--whom the majority ruled against--didn't have fair notice that the original cert petition question was still in play.

Thus, as far as the parties are concerned, the majority in Comcast played fast and loose with Rule 14.1.  But curiously, so far as the public is concerned, it didn't.  Why not?  Because the Court had full briefing and oral argument on the relation between merits arguments and the question of predominance under Rule 23(b)(3) in another case on the docket: Amgen Inc. v. Connecticut Retirement Plans & Trust Funds.

As I discuss in my latest Verdict column, it is passing strange that the Court addressed the same core issue in Comcast as it had before it in Amgen, yet despite the fact that it decided the two cases within a month of each other, the Court in Comcast appeared unaware of its own decision in Amgen.  In the column I consider the reasons for this schizoid pattern.

But let's return to the issue of the Court deciding issues outside the scope of the cert question.  Although I started out by saying that Supreme Court Rule 14.1 protects parties and the public, I now think that its chief function is to protect the public.  After all, the SCOTUS has repeatedly stated that it doesn't take cases to engage in error correction.  So a party in a case before the SCOTUS has no greater entitlement to make his, her or its arguments than does a non-party who will be subsequently bound by whatever rule of law gets announced.  Thus, so long as somebody makes the best arguments to the Court, there's no real unfairness to either party that comes from resolving an issue outside the scope of the cert question.  In Comcast, the argument for the respondents on the issue the Court actually decided had been presented by the respondent in Amgen.  So no harm, no foul.

However, typically, a decision to go beyond the cert question will not be rendered harmless by the coincidence that the Court also has another case truly presenting the issue the Court is decided.  In the more typical case, the Court simply won't have the benefit of full briefing and argument.  Even if that is not unfair to the losing party, it sacrifices protection for the public.  And yet, as I noted in response to the commenter, the Court quite often honors Rule 14.1 only in the breach.

For example, in Knox v. SEIU Local 1000, decided less than a year ago, we find Justice Sotomayor, joined by Justice Ginsburg, concurring only in the judgment, and complaining that she:

cannot agree with the majority’s decision to address unnecessarily significant constitutional issues well outside the scope of the questions presented and briefing. By doing so, the majority breaks our own rules and, more importantly, disregards principles of judicial restraint that define the Court’s proper role in our system of separated powers.

One finds such statements--and rejoinders that no, the issue really is within the scope of the question presented--dotting the U.S. Reports.  I haven't examined each one in detail, so I don't have a view about whether particular complaints are accurate, but they occur often enough to indicate that the Court frequently plows ahead rather than ordering re-argument or supplemental briefing.  It also appears that there's no real ideological valence to the decision to go beyond the cert question.

So, I stand by my descriptive/predictive bottom line.  If, in Windsor, the Court--or the decisive vote on the Court--is going to be cast on the basis of a question outside the scope of the cert question(s), the "official" course should be to order re-argument or supplemental briefing.  But that probably won't happen.