What should the Court do when the parties refuse to defend the decision below?   That interesting question is addressed by Brian Goldman in his forthcoming Stanford Law Review note, now available on ssrn here.

Pepper v. United States, scheduled for oral argument on December 6, 2010, is just such a case.  At issue in Pepper is whether a federal judge imposing a new sentence after the previous sentence was set aside may take into account a prisoner's good behavior during the interim between the two sentences.  Although the Department of Justice successfully argued below that a judge could not give the prisoner credit for post-sentencing conduct, it has now changed its tune and is siding with Pepper.  DOJ recommended that the Court send the case back to the Eighth Circuit, but the Court chose instead to appoint Adam Ciongoli as amicus curiae to defend the decision below.

Goldman argues that the Court has been too willing to appoint amicus curiae to argue positions abandoned by the parties, keeping alive controversies where none exists.  He reports that the Court has appointed amici forty-three times since 1954"”approximately twice every three terms.  Goldman’s note first traces the history of the practice, then asks whether it is at odds with the Constitution’s "case" or "controversy" requirement, and concludes by addressing whether such amicus appointments are consistent with the adversarial system.  Goldman acknowledges the benefits of amicus appointments in cases that raise issues of independent interest to the courts "“ such as the scope of the federal courts' subject matter jurisdiction "“ but he concludes that sometimes the better practice would be to remand rather than to reach out and decide matters on which the parties agree.

Goldman's note should make us all think twice about the Supreme Court's practice of deciding uncontested issues.  For those who contend that the judiciary’s primary role is to declare the meaning of law, some flexibility in adversary procedure is justified.  But for those who think that courts exist to resolve disputes between the parties, these activities appear to be judicial overreaching.  And for those who believe the courts should do a mix of both, amicus appointments are permissible but should be rare.

These amicus appointments do have one clear benefit, however:  they can jump-start the careers of aspiring appellate attorneys.  As Goldman reports, Chief Justice Roberts is one of many young lawyers appointed to argue such a case early in his career.

Posted in Pepper v. U.S., Academic Round-up

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Nov. 14, 2010, 10:37 PM), http://www.scotusblog.com/2010/11/academic-round-up-61/