The Supreme Court frequently relies on principles of waiver and forfeiture to limit the scope of its review. But waiver (the voluntarily relinquishment of an argument) and forfeiture (the failure to press an argument) are most naturally at home in traditional litigation that affects only a limited number of parties. In those cases, a court’s main institutional role is to adjudicate the narrow dispute at issue, perhaps without even creating any legal precedent. Think, for instance, of adjudication in a small claims court. By contrast, waiver and forfeiture are in tension with some of the Supreme Court’s most salient institutional goals — namely, to provide correct precedential guidance as to important legal disputes affecting many parties and interests. Several recent cases illustrate how the Court has used waiver and forfeiture while navigating its dual identity as both a traditional adjudicator and a precedential rulemaker.
To find a consequential use of forfeiture, one need only review yesterday’s decision in Argentina v. NML Capital, which spends a surprising amount of time explaining what it is not about. While acknowledging that the oral argument involved extensive discussion of various discovery rules, the Court declined to reach those issues. Instead, the Court focused on what it regarded as the sole issue appealed below and preserved in the petition for cert: whether the Foreign Sovereign Immunities Act barred certain discovery into Argentina’s assets. After explaining that “Argentina has not put [the broader questions] in contention,” the Court noted that Argentina’s reply brief had tried to do just that. The Court’s response was curt: “We will not revive a forfeited argument simply because the petitioner gestures toward it in its reply brief.” NML Capital’s use of forfeiture makes sense because it resembles forfeiture’s traditional application. What made NML Capital so important was that it involved a high-stakes litigation involving a foreign nation. In that kind of case, it’s entirely appropriate to hold the foreign nation to the standards of any of litigant: by resolving the expressly “narrow” question presented in “the rather unusual circumstances of this case,” the Court did not fall down on its responsibility to clarify pressing legal ambiguities.
Contrast that with the Court’s decision in EPA v. EME Homer City, which I blogged about here. EME Homer involved a challenge to an important EPA regulation. As a threshold argument, the EPA argued that the challengers had failed to preserve some of their concerns during the rulemaking. The decision below had squarely rejected that argument and specifically found that the challengers’ objections were adequately preserved in the rulemaking process. The Supreme Court took a different approach. According to the Court, the EPA couldn’t take advantage of its failure-to-preserve argument because it hadn’t “unequivocally” raised that point in the DC Circuit. EME Homer‘s use of forfeiture is odd on its face. When the decision below has squarely ruled on the argument at issue and the parties have subsequently briefed the matter, why should the Supreme Court care whether a party “unequivocally” raised the issue in the lower court? One possibility is that the Court doubted that the challengers’ objections had been adequately preserved in the rulemaking, but nonetheless wanted to issue a merits decision upholding the challenged rule. This unusual deployment of forfeiture principles would reflect the fact that EME Homer wasn’t just a dispute between parties. It was also a declaratory ruling with widespread implications for environmental law.
Finally, consider the Court’s recent decision in Bond v. United States, where the Court used federalism canons to narrowly construe a criminal statute. The major question lurking in Bond was whether the statute, if read more broadly, would be constitutional as an exercise of Congress’s authority to implement treaties. That question was cleanly presented in part because, in the district court below, the United States had waived reliance on Congress’s Commerce Clause authority; moreover, the decision below had relied on that waiver. If Bond were viewed as a traditional dispute, then the government’s waiver would be conclusive. Yet, in the Supreme Court, the government insisted that its Commerce Clause authority applied and that the Court should consider the issue. The government’s waiver created a problem from the standpoint of the Court’s declaratory role, for it raised the possibility that the Court would strike down the implementing statute — and so establish a major precedent — without considering a significant argument for the law’s constitutionality. What is more, some of the treaty-implementation arguments in play were linked to or dependent on Commerce Clause arguments. As Michael Ramsey put it over at Originalism Blog, “everything the Justices say about the threat to the federalism structure from treaty implementation is overwrought (to put it mildly) if Bond could have been prosecuted under Congress’ interstate commerce power.” In light of all this, the Court’s reluctance to reach the constitutional merits may have been linked to its discomfort at enforcing the government’s idiosyncratic waiver decision in a case with such broad implications.
The above examples provide at least some support for the following claim: it’s hard to understand the Court’s use of waiver and forfeiture without thinking about the Court’s institutional role in the particular case at issue. When a case is more like a traditional dispute, waiver and forfeiture rules are most stringently enforced. And when a case is more about declaring widely applicable legal rules, waiver and forfeiture become much more complex in the Court.