In a seemingly inconsequential unanimous decision issued on May 7, the Supreme Court rapped the knuckles of the U.S. Court of Appeals for the Ninth Circuit. A pithy nine-page opinion authored by Justice Ruth Bader Ginsburg harshly condemned the appellate judges because they had abandoned the "principle of party presentation" which, she said, is the foundation of "our adversarial system of adjudication." She quoted a 2008 decision: "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." Because the Ninth Circuit had not been a "neutral arbiter" of the claims of the parties, its decision was unanimously reversed. Was the Court blind to its own history? The Supreme Court itself was guilty of the conduct that it has now denounced. In an even more aggravated violation of "party presentation," a surprising majority opinion issued by Justice Antonin Scalia thirty years ago had the cataclysmic effect of eviscerating the First Amendment’s protection for the free exercise of religion. No party to the litigation or any of the many amici curiae that filed legal briefs in Oregon Employment Division v. Smith had suggested or addressed the […]
