Justice Ginsburg
© T.J. Kirkpatrick/The New York TimesJustice Ruth Bader Ginsburg in October in Washington, D.C.
In 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