The Court often says that it is “a court of final review, not of first view.” But the truth is a good deal more complicated, as evidenced by Michael’s recent post. The crux of Michael’s post is an interesting question: why did Hobby Lobby first conclude that a potentially game-changing argument wasn’t presented, before going on to explain why the argument wasn’t persuasive in any event? The answer may be that the Court’s variable willingness to address unpresented issues and arguments reflects its more general prudential use of waiver and forfeiture. As I’ve suggested in an earlier post, normal principles of waiver and forfeiture sometimes operate differently at the Court because of its a unique role as an expositor of nationwide law.
Here’s the key background passage from Michael’s post, with some cites and quotes omitted:
One of the questions at issue in Hobby Lobby was whether the government had “substantially burdened” the religious beliefs of the plaintiffs by requiring them to offer employer-provided health insurance plans that covered various methods of contraception. …. And on this question, several amici for the government advanced an argument that the government itself had not raised. ….
Justice Alito’s majority opinion [in Hobby Lobby] observed that the government itself had never raised the claim, which in turn militated against any resolution of the issue by the Court. Almost immediately thereafter, however, the Court went on to highlight various shortcomings in the argument itself. But how, you may wonder, did the Court manage to reconcile its stated refusal to reach the issue with its subsequent reaching of the issue? It did so by explaining that: “[E]ven if we were to reach this argument, we would find it unpersuasive.”
One way to understand this situation is that the Hobby Lobby Court violated its oft-repeated maxim, noted above, that “we are a court of review, not of first view.”
But if you search for examples of that zippy maxim (and slight variations), you’ll quickly notice that it’s been oft-repeated not just by majorities, but also by dissents. And, in many instances, the dissent seems to be right: the Court does indeed reach out to address arguments or issues that are newly raised, not passed on below, or even raised only by an amicus. For example, Justice Ginsburg, who has played a critical role in fashioning and repeating the “first view” maxim, arguably transgressed it in Daimler AG v. Bauman—a point that Justice Sotomayor made in dissent. And just a couple weeks ago in T-Mobile South, LLC v. City of Roswell, the Court, per Justice Sotomayor, seemed to act as a court of first view–as the Chief Justice’s s dissenting opinion contended. What explains this apparent inconsistency?
The basic answer is that not all unpresented arguments are created alike. Consider two stylized extremes.
First, some unpresented arguments are ancillary to the Court’s main holding. For instance, the Court might find a constitutional violation based on a new legal precept and then acknowledge an unpresented remedial point not passed on below. In such circumstances, the precedential or practical effect of the Court’s decision wouldn’t turn at all on whether the Court addresses the ancillary argument. Sure, the particular party before the Court might still want to know whether she’s ultimately going to get relief, but in the typical case that’s the kind of thing that district courts and courts of appeals are made to do.
Second, some unpresented issues could—when later addressed—significantly undercut the precedential or practical effect of the Court’s decision. These are often cases where the presented issue is legally dependent on answering the unpresented argument in a particular way. In these situations, leaving the unpresented issue unanswered would cast considerable doubt on the significance of the Court’s holding. A similar problem can arise when it’s of national consequence whether the specific dispute before the Court ultimately comes out in a particular way. The Court might then be reluctant to remand; instead, it might just resolve the entire case in one stroke, without the delay of remand.
You’ve probably already started to think of examples that arguably fall into each of these stylized categories. Let me give some nominations.
In the first category are cases like Zivotofsky v. Clinton, where the Court reversed D.C. Circuit case law on the political question doctrine and then remanded for consideration of the constitutional merits. In kicking the merits back to the D.C. Circuit, the Court’s precedent lost very little punch. The Court had done the work it wanted to do in cleaning up a confused area of law. And the Court could be confident that the constitutional merits would very likely be available for further review in the not-too-distant future. So it’s little surprise that the Court decided to save the merits for the second view.
Hobby Lobby seems more like the second category of case. The point that wasn’t presented was an argument as to whether the challenged federal regulation imposed a substantial burden on religious practice for purposes of the Religious Freedom Restoration Act. If the argument was correct and there was no substantial burden, then the entire rest of the Court’s decision would instantly become moot: the federal regulation could continue to operate as intended, and the legal protections afforded to the plaintiffs would be undone. Accordingly, the Court had reason to resolve the unpresented substantial burden argument, without waiting for a remand. Resting on lack of preservation would have made it seem like the Court’s decision rested on a technicality or an idiosyncratic litigation choice by the government. In major cases, the Court prefers to speak based on deep legal principle.
What’s more, passing on the unresolved issue can allow the Court to have its cake and eat it, too. At step one (finding the issue or argument unpresented), the Court can honor and reassert settled rules of judicial restraint. The unpresented issue is thus clearly labeled as unpresented, without undermining preservation case law. Moreover, this step one can have significant rhetorical advantages. If nobody actually presented a particular point, that fact can be taken as a reason to think that the point has been tacitly rejected by the parties or is otherwise a stretch. Then, at step two (addressing the unpresented issue), the Court can provide reassurances that its holding isn’t just a house of cards potentially waiting to come toppling down. This second step clarifies and confirms the precedential and practical import of the Court’s decision.
True, there is something passing strange about saying that a point isn’t presented, but then deciding it anyway. As Michael pointed out in his post, Hobby Lobby heightens this oddity by transitioning between the two steps with the expression “even if we were to reach this argument,” thereby raising the question of how it’s possible to reach an argument without reaching it. Still, the Court’s second step in such cases can intelligibly be viewed as an in-the-alternative holding, at least so long as the Court has jurisdiction to reach the second step. Waiver and forfeiture, after all, don’t normally implicate jurisdictional concerns. (Notably, Hobby Lobby apparently ignored a jurisdictional issue that had been raised by amici.)
Of course, cases typically fall at various points in-between the two stylized categories outlined above. For example, in Nautilus, Inc. v. Biosig Instruments, Inc., the Court established a new patent principle before remanding to the Federal Circuit for application based on the “first view” maxim. In doing so, the Court clearly and self-consciously adopted a new legal framework, but the practical significance of the Court’s holding would have been considerably clearer if the Court had actually applied it.
Also notably, the fact that a case argument resembles the second stylized category described above is no guarantee that the Court will actually address the unpresented issue. For example, the Court: (i) might feel devotion to traditional principles of judicial restraint, (ii) not really care if the overall effect of its holding were eventually undermined or limited, or (iii) lack confidence in how best to answer the unpresented issue. A possible example of all these points is Genesis Healthcare Corp. v. Symczyk. There, a five-Justice majority first found it conceded below that a plaintiff’s individual claim was moot and then held that the plaintiff couldn’t pursue a collective action under the FLSA. In dissent, Justice Kagan aimed to take full advantage of the Court’s assumption, opening with: “The Court today resolves an imaginary question, based on a mistake the courts below made about this case and others like it.” Justice Kagan then argued that the Court should have addressed the allegedly unpresented issue. But it didn’t.
So what’s true of the “first view” principle is true of waiver and forfeiture more generally: in traditional disputes, waiver and forfeiture rules are most stringently enforced. But in cases that declare widely applicable legal rules, additional factors come into play.
Originally posted on Prawfs.