Supreme Court Laments ‘Mini Epidemic’ of Shifting Arguments

Several US Supreme Court justices this term have lamented perceived post-grant bait and switches by the parties, with advocates advancing new rationales for their sides or urging the court to decide new issues they didn’t agree to take up.

The phenomenon isn’t new, but in a habeas case on Monday, Justice Samuel Alito suggested that it’s particularly acute this term.

“We’ve had a mini epidemic of cert petitions that have convinced us to take a case because there’s supposedly a conflict on a certain issue,” Alito said. Once the case is granted, “the argument that is advanced by the petitioners, is quite a bit different from what we were sold at the petition stage.”

“Is this another outbreak of the same disease?” he asked the petitioner in Rivers v. Guerrero.

It isn’t obvious why arguments have been so amorphous this term.

The critiques from the justices have come from across the ideological spectrum and in all sorts of cases, including securities litigation, excessive police force, employment discrimination and intellectual property.

But it’s led to narrow rulings, unanswered questions, and possibly prompted the court to dismiss disputes after they’ve been argued.

Haynes and Boone partner Daniel Geyser said it’s understandable why such switches would trouble the court, which grants a case to decide a specific question, “not just anything the parties feel like briefing.”

Shrinking Docket

Hogan Lovells partner Sean Marotta said that the court’s decision to hear fewer case might be behind the late-breaking changes in position.

The court’s caseload has dropped dramatically since the 1980s, when the justices decided well over 100 cases. This term, the justices are on pace to resolve 59 disputes after briefing and argument.

With the court’s shrinking docket, the parties “have access to expert Supreme Court counsel that will tailor their merits-stage arguments to what they think are most likely to resonate” with the justices, Marotta said. Even “if it’s not exactly what was argued in the petition or brief in opposition.”

And Geyser said the switch can happen on both sides of a case.

For petitioners, it happens when a party “tees up” a circuit split to get the court’s attention, but then “pivots” to a slightly different issue to secure greater—or any—relief.

In the securities case Facebook, Inc. v. Amalgamated Bank, Justice Sonia Sotomayor accused the petitioner of switching up the question granted. “That’s a different issue,” she said. “That’s not what we granted cert on.”

On the flip side, Geyser said respondents may switch up the arguments when they “realize it’s harder to defend the actual QP than retreat to alternative grounds,” referring to the question presented or “QP.”

In the excessive force case Barnes v. Felix, Justice Ketanji Brown Jackson said she was “surprised” by the respondent’s seemingly new argument.

“What we did not take cert on is the question that you’re raising, a very important question, probably one on which there is some confusion, wouldn’t be a surprise to me, but definitely not the question in this case,” Jackson said. It “does not seem to me we’re well-positioned in this case to discuss.”

Geyser said the respondent might urge the justices to address an issue that could set them up better for success on remand.

That’s seemingly what happened in the employment discrimination case Ames v. Ohio Department of Youth Services, with Justice Brett Kavanaugh noting that arguments were “pretty far afield from the question presented.”

Justice Elena Kagan said the issues pushed by the respondents were “orthogonal to the question we took.” Why would the court use this case, which is about a narrow question, “to opine on a range of things that have nothing to do with that question?” Kagan asked.

In addition to creating frustration for the justices, the changed positions can result in narrow rulings and even unanswered questions.

Although the court didn’t explain its reason for doing so, the justices ultimately dismissed the Facebook case, saying it never should have been granted in the first place.

The court similarly dismissed the securities case NVIDIA Corp. v. E. Ohman J:or Fonder AB. “It does strike me that there’s some delta between what you’re asking us to do today and what your QP says,” Justice Neil Gorsuch said during arguments.

In the trademark case Dewberry Group, Inc. v. Dewberry Engineers Inc., Justice Amy Coney Barrett said there was “vehement agreement on the narrow QP” that the court agreed to decide. She suggested the court leave for another day the harder questions the parties had advocated during arguments.

The court did just that in its Feb. 26 ruling. “In remanding this case for a new award proceeding, we leave a number of questions unaddressed.”