A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit

Supreme CourtIn an unanimous opinion, Justice Ruth Bader Ginsburg excoriated the United States Court of Appeals for the Ninth Circuit for “an abuse of discretion” when it brought in third parties to argue the case and ruled on that basis.  That approach “drastically” changed the judicial norms of having the parties present arguments.  The Ninth Circuit opinion was written by A. Wallace Tashima who ruled with Marsha S. Berzon, and Andrew D. Hurwitz.  Hurwitz was brought into the case after Judge Stephen Reinhardt died.

The case involves the conviction of Evelyn Sineneng-Smith for violating a federal law related to encouraging illegal immigration. The Ninth Circuit reversed but not before the court named three amici and invited them to brief and argue the issues. The third added amici were the Federal Defender Organizations of the Ninth Circuit, the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild.”  The Supreme Court cried foul:

“In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in Greenlaw v. United States, 554 U. S. 237 (2008), ‘in both civil and criminal cases, in the first instance and on appeal . . . , we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.’ Id., at 243. In criminal cases, departures from the party presentation principle have usually occurred “to protect a pro se litigant’s rights.”  … But as a general rule, our system “is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.” Id., at 386 (Scalia, J., concurring in part and concurring in judgment).3 In short: “[C]ourts are essentially passive instruments of government.”

Ginsburg added, that “a court is not hidebound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well beyond the pale.”

The Supreme Court sent the case back down the Ninth Circuit “for reconsideration … bearing a fair resemblance to the case shaped by the parties.”

That is just about as clear a spanking as you will find in a remand.

Here is the opinion: United States v. Sineneng-Smith

27 thoughts on “A “Radical Transformation”: Supreme Court Unanimously Overrules The Ninth Circuit”

  1. “Bringing in third parties to argue the case and ruling on that basis”…

    …kind of like Judge Sullivan inviting amicii defamatory of Flynn, Barr, and Trump when he denied requests for amicus brief complimentary if Flynn 24 times before.

    I think Sullivan saw punishing Flynn as a way to personally get vengeance on the bogey man the media portrayed Trump as, and he’s angry that his catharsis (and chance to ingratiate himself on the Obama/Clinton circles) is being denied.

    1. I read that judge Sullivan’s actions are not upheld by the RINALDI decision of SCOTUS & rule 48 (a) fails to conFer “any substantial role” for courts determining whether charges should be dismissed.
      SO this seems to validate your opinions above

  2. “In short: “[C]ourts are essentially passive instruments of government.”
    In short: Courts are PROPERLY passive instruments of government, before whom is set the law and it to be the whole of their food in the service of justice.”

  3. In 2000, Bush had the Congress, Senate and Presidency. Had Bush been an actual Republican, an actual conservative, and not a RINO, he could have impeached and convicted the vast majority of the judicial branch for usurpation, nullification, abuse of power and subversion as “legislating from the bench” and arbitrarily modifying the Constitution without adhering to the constitutional amendment process.

    Were an electoral “Full House” to happen again…

  4. Mr. Turley, I would like to know why the Supremes agreed to accept a supplemental brief from the Dreamers’ attorneys about Dreamers on the frontlines of fighting Covid-19, in the case they are hearing now. What does this last-minute supplemental brief have to do with the merits of the original case? Thank you in advance.

  5. The 9th got used to usurping Congress’ exclusive role in setting Immigration Rules. This case illustrates just how far they thought they could go as alternate legislators, finding a way to decriminalize an abusive, predatory businesswoman. She should be in Federal prison, and hopefully will suffer enormous legal expenses. She should have been made to refund the people she cheated.

    1. I agree, this woman appears predatory of our laws. Her counsel SOLEY has right to represent her to 9th circuit ct.. for a change Judge Ginseng is correct.

  6. Seeing RBG go along with the majority, is a sign to me that she is on her last legs, and wants to go out in a way that gives her legacy a look of fairness.

  7. The judicial branch is distinct from and is not the legislative or executive branch.

    Americans speak English and do not need an interpreter armed with interminable volumes of prevarication.
    ____________________________________________________________________________________

    “…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”

    “[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”

    – Alexander Hamilton

      1. I commend to you that the rights, freedoms, privileges and immunities provided to citizens shall not be nullified by the Congress or the States.

        The 9th furthers those rights, freedoms, privileges and immunities and the 10th allows no denial of them.

        The Article 1, Section 8, immunity or freedom from taxation by Congress for individual or specific welfare, charity or redistribution of wealth extends to the States as do the right to private property and the freedoms of speech, religion, press, assembly, etc.

  8. Paul, the Dems are going to take RBG to a taxidermist and have her mounted sitting at the bench. She’ll be so lifelike.

    1. IB:

      “Things are pretty bad when liberals eat each other!”
      ****************************
      Bad? I’m with Napoleon: “Never interrupt your enemy when he is making a mistake.”

  9. We can only hope that the “new” Ninth with judges appointed by Trump will help straighten out this mess.

  10. You know the 9th has issued so many bad decisions when even RBG has to gag and state the obvious. When will the sheeple on the left realize how far from the ethos of America their leftist ideology has driven them. They are willfully blind to their left turn into inanity.

          1. Willful ignorance IS stupidity. Same / Same.
            We’ve come to a sad point when the bench decides based on ideology and not the four corners of the law. They are not immune to a reset by the people.

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