UNITED STATES v. SINENENG-SMITH
No. 19-67
SUPREME COURT OF THE UNITED STATES
May 7, 2020
590 U. S. ____ (2020)
Argued February 25, 2020
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
UNITED STATES v. SINENENG-SMITH
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She assisted clients working without authorization in the United States to file applications for a labor certification program that once provided a path for aliens to adjust to lawful permanent resident status. Sineneng-Smith knew that her clients could not meet the long-passed statutory application-filing deadline, but she nonetheless charged each client over $6,000, netting more than $3.3 million.
Sineneng-Smith was indicted for multiple violations of
Sineneng-Smith essentially repeated the same arguments on appeal to the Ninth Circuit. Again she asserted a right under the First Amendment to file administrative applications on her clients’ behalf, and she argued that the statute could not constitutionally be applied to her conduct. Instead of adjudicating the case presented by the parties, however, the court named three amici and invited them to brief and argue issues framed by the panel, including a question never raised by Sineneng-Smith: Whether the statute is overbroad under the
Held: The Ninth Circuit panel‘s drastic departure from the principle of party presentation constituted an abuse of discretion.
The Nation‘s adversarial adjudication system follows the principle of party presentation. Greenlaw v. United States, 554 U. S. 237, 243. “In both civil and criminal cases, . . . 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.
That principle forecloses the controlling role the Ninth Circuit took on in this case. No extraordinary circumstances justified the panel‘s takeover of the appeal. Sineneng-Smith, represented by competent counsel, had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that
910 F. 3d 461, vacated and remanded.
GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. EVELYN SINENENG-SMITH
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE GINSBURG delivered the opinion of the Court.
This case concerns
Respondent Evelyn Sineneng-Smith operated an immigration consulting firm in San Jose, California. She was indicted for multiple violations of
There was a hindrance to the efficacy of Sineneng-Smith‘s advice and assistance. To qualify for the labor-certification dispensation she promoted to her clients, an alien had to be in the United States on December 21, 2000, and apply for certification before April 30, 2001.
In the District Court, Sineneng-Smith urged unsuccessfully, inter alia, that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First Amendment as applied. See Motion to Dismiss in No. 10-cr-414 (ND Cal.), pp. 7-13, 20-25; Motion for Judgt. of Acquittal in No. 10-cr-414 (ND Cal.), pp. 14-19, 20-25. She was convicted on two counts under
On appeal from the
As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit‘s judgment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel.
I
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.” Id., at 244;
In short: “[C]ourts are essentially passive instruments of government.” United States v. Samuels, 808 F. 2d 1298, 1301 (CA8 1987) (Arnold, J., concurring in denial of reh‘g en banc)). They “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” Ibid.
The party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initiating role for a court is appropriate. See, e.g., Day v. McDonough, 547 U. S. 198, 202 (2006) (federal court had “authority, on its own initiative,” to correct a party‘s “evident miscalculation of the elapsed time under a statute [of limitations]” absent “intelligent waiver“).4 But this case scarcely fits that bill. To explain why that is so, we turn
In July 2010, a grand jury returned a multicount indictment against Sineneng-Smith, including three counts of violating
Before trial, Sineneng-Smith moved to dismiss the
The District Court denied the motion to dismiss, holding that Sineneng-Smith could “encourag[e]” noncitizens to remain in the country, within the meaning of
After a 12-day trial, the jury found Sineneng-Smith guilty on the three
Sineneng-Smith‘s appeal to the Ninth Circuit from the District Court‘s
“1. Whether the statute of conviction is overbroad or likely overbroad under the First Amendment, and if so, whether any permissible limiting construction would cure the First Amendment problem?
“2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First Amendment or the Fifth Amendment, and if so, whether any permissible limiting construction would cure the constitutional vagueness problem?
“3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any serious constitutional problems the Court might determine existed?” Ibid.
Counsel for the parties were permitted, but “not required,” to file supplemental briefs “limited to responding to any and all amicus/amici briefs.” Id., at 123 (emphasis added). Invited amici and amici not specifically invited to file were free to “brief such further issues as they, respectively, believe the law, and the record calls for.” Ibid. The panel gave invited amici 20 minutes for argument, and allocated only 10 minutes to Sineneng-Smith‘s counsel. Reargument Order in No. 15-10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that
True, in the redone appeal, Sineneng-Smith‘s counsel
II
No extraordinary circumstances justified the panel‘s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that
As earlier observed, see supra, at 4, 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.
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For the reasons stated, we vacate the Ninth Circuit‘s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties.
It is so ordered.
Addendum of cases, 2015-2020, in which this Court called for supplemental briefing or appointed amicus curiae
This Court has sought supplemental briefing: to determine whether a case presented a controversy suitable for the Court‘s review, Trump v. Mazars USA, LLP, post, p. ____ (ordering briefing on application of political question doctrine and related justiciability principles); Frank v. Gaos, 586 U. S. ____ (2018) (ordering briefing on Article III standing); Wittman v. Personhuballah, 576 U. S. 1093 (2015) (same); Docket Entry in Gloucester County School Bd. v. G. G., O. T. 2016, No. 16-273 (Feb. 23, 2017) (ordering briefing on intervening Department of Education and Department of Justice guidance document); Kingdomware Technologies, Inc. v. United States, 577 U. S. 970 (2015) (ordering briefing on mootness); to determine whether the case could be resolved on a basis narrower than the question presented, Zubik v. Burwell, 578 U. S. ____ (2016) (ordering briefing on whether the plaintiffs could obtain relief without entirely invalidating challenged federal regulations); and to clarify an issue or argument the parties raised, Google LLC v. Oracle America, Inc., post, p. ____ (ordering further briefing on the parties’ dispute over the standard of review applicable to the question presented); Babb v. Wilkie, 589 U. S. ____ (2020) (ordering briefing on an assertion counsel made for the first time at oral argument about alternative remedies available to the plaintiff); Sharp v. Murphy, reported sub nom. Carpenter v. Murphy, 586 U. S. ____ (2018) (ordering briefing on the implications of the parties’ statutory interpretations).
In rare instances, we have ordered briefing on a constitutional issue implicated, but not directly presented, by the question on which we granted certiorari. See Jennings v. Rodriguez, 580 U. S. ____ (2016) (in a case about availability of a bond hearing under a statute mandating detention of
We have appointed amicus curiae: to present argument in support of the judgment below when a prevailing party has declined to defend the lower court‘s decision or an aspect of it, Seila Law LLC v. Consumer Financial Protection Bureau, 589 U. S. ____ (2019); Holguin-Hernandez v. United States, 588 U. S. ____ (2019); Culbertson v. Berryhill, 584 U. S. ____ (2018); Lucia v. SEC, 583 U. S. ____ (2018); Beckles v. United States, 579 U. S. ____ (2016); Welch v. United States, 577 U. S. 1098 (2016); McLane Co. v. EEOC, 580 U. S. ____ (2016); Green v. Brennan, 576 U. S. 1087 (2015); Reyes Mata v. Lynch, reported sub nom. Reyes Mata v. Holder, 574 U. S. 1118 (2015); and to address the Court‘s jurisdiction to decide the question presented, Montgomery v. Louisiana, 575 U. S. 933 (2015).
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. EVELYN SINENENG-SMITH
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
JUSTICE THOMAS, concurring.
I agree with the Court that the Ninth Circuit abused its discretion in reaching out to decide whether
I
This Court‘s overbreadth jurisprudence is untethered from the text and history of the First Amendment. It first
Since then, the Court has invoked this rationale to facially invalidate a wide range of laws, from statutes enacted by Congress, see, e.g., Ashcroft v. Free Speech Coalition, 535 U. S. 234 (2002), to measures passed by city officials, see, e.g., Board of Airport Comm‘rs of Los Angeles v. Jews for Jesus, Inc., 482 U. S. 569 (1987). These laws covered a variety of subjects, from nudity in drive-in movies, Erznoznik v. Jacksonville, 422 U. S. 205 (1975), to charitable solicitations, Schaumburg v. Citizens for Better Environment, 444 U. S. 620 (1980), to depictions of animal cruelty, Stevens, supra, at 460. And all these laws were considered unconstitutional not because they necessarily violated an individual‘s First Amendment rights but “because of a judicial prediction or assumption that the statute‘s very existence may cause [some citizens] to refrain from constitutionally protected [activity].” Broadrick v. Oklahoma, 413 U. S. 601, 612 (1973) (emphasis added); see also Erznoznik, supra, at 216.
Notably, this Court has not attempted to ground its void-for-overbreadth rule in the text or history of the First
In order to protect this “transcendent” right, ibid., the Court will deem a statute unconstitutional when, in “the judgment of this Court[,] the possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted and perceived grievances left to fester because of the possible inhibitory effects of [the] statut[e].”
Perhaps unsurprisingly, the overbreadth doctrine shares a close relationship with this Court‘s questionable vagueness doctrine. See Johnson v. United States, 576 U. S. 591, 611-623 (2015) (THOMAS, J., concurring in judgment). In fact, it appears that the Court‘s void-for-overbreadth rule developed as a result of the vagueness doctrine‘s application in the First Amendment context. For example, this Court‘s decision in Thornhill, which is recognized as “the fountainhead of the overbreadth doctrine,” Monaghan, Overbreadth, 1981 S. Ct. Rev. 1, 11, cited a vagueness precedent in support of its overbreadth analysis. 310 U. S., at 96 (citing Stromberg v. California, 283 U. S. 359, 367 (1931)). And the decision expressed concerns regarding the antipicketing statute‘s “vague” terms with “no ascertainable meaning” and their resulting potential for “discriminatory enforcement.” Thornhill, supra, at 97-98, 100-101; cf. Chicago v. Morales, 527 U. S. 41, 56 (1999) (opinion of Stevens, J.). As the overbreadth doctrine has developed, it has “almost wholly merged” with the vagueness doctrine as applied to “statutes covering [F]irst [A]mendment activities.” Sargentich, Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844, 873 (1970). Given the dubious
II
In addition to its questionable origins, the overbreadth doctrine violates the usual standard for facial challenges. Typically, this Court will deem a statute unconstitutional on its face only if “no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U. S. 739, 745 (1987). But the overbreadth doctrine empowers courts to hold statutes facially unconstitutional even when they can be validly applied in numerous circumstances, including the very case before the court.
By lowering the bar for facial challenges in the First Amendment context, the overbreadth doctrine exacerbates the many pitfalls of what is already a “disfavored” method of adjudication. Washington State Grange, 552 U. S., at 450. “[U]nder our constitutional system[,] courts are not roving commissions assigned to pass judgment on the validity of the Nation‘s laws.” Broadrick, 413 U. S., at 610-611. But when a court entertains—or in this case, seeks out—an overbreadth challenge, it casts aside the “judicial restraint” necessary to avoid “‘premature’ and ‘unnecessary pronouncement[s] on constitutional issues.‘” Washington State Grange, supra, at 450 (quoting United States v. Raines, 362 U. S. 17, 22 (1960)). This principle of restraint has long served as a fundamental limit on the scope of judicial power. See Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). “[T]here is good evidence that courts [in the early Republic] understood judicial review to consist [simply] ‘of a refusal to give a statute effect as operative law in resolving a case’ once that statute was determined to be unconstitutional.” Johnson, supra, at 615 (opinion of THOMAS, J.) (quoting Walsh, Partial Unconstitutionality, 85 N. Y. U. L.
Moreover, by relaxing the standard for facial challenges, the overbreadth doctrine encourages “speculat[ion]” about “‘imaginary’ cases,” Washington State Grange, supra, at 450 (quoting Raines, supra, at 22), and “summon[s] forth an endless stream of fanciful hypotheticals,” United States v. Williams, 553 U. S. 285, 301 (2008). And, when a court invalidates a statute based on its theoretical, illicit applications at the expense of its real-world, lawful applications, the court “threaten[s] to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Washington State Grange, supra, at 451.
Collaterally, this Court has a tendency to lower the bar for facial challenges when preferred rights are at stake. See, e.g., Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992). This ad hoc approach to constitutional adjudication impermissibly expands the judicial power and “reduc[es] constitutional law to policy-driven value judgments.” Whole Woman‘s Health v. Hellerstedt, 579 U. S. ____, ____ (2016) (THOMAS, J., dissenting) (slip op., at 16). We ought to “abid[e] by one set of rules to adjudicate constitutional rights,” ibid., particularly when it comes to the disfavored practice of facial challenges.
III
Finally, by allowing individuals to challenge a statute based on a third party‘s constitutional rights, the over-
The overbreadth doctrine‘s disregard for the general rule against third-party standing is especially problematic in light of the rule‘s apparent roots in Article III‘s case-or-controversy requirement. Although the modern Court has characterized the rule as a prudential rather than jurisdictional matter, see Craig v. Boren, 429 U. S. 190, 193 (1976), it has never provided a substantive justification for that assertion. And the Court has admitted that this rule against third-party standing is “not always clearly distinguished from the constitutional limitation[s]” on standing, Barrows v. Jackson, 346 U. S. 249, 255 (1953); is “closely related to Art[icle] III concerns,” Warth v. Seldin, 422 U. S. 490, 500 (1975); and even is “grounded in Art[icle] III limits on the
These statements find support in a historical understanding of Article III. To understand the scope of the Constitution‘s case-or-controversy requirement, “we must ‘refer directly to the traditional, fundamental limitations upon the powers of common-law courts.‘” Spokeo, Inc. v. Robins, 578 U. S. ____, ____ (2016) (THOMAS, J., concurring) (slip op., at 2) (quoting Honig v. Doe, 484 U. S. 305, 340 (1988) (Scalia, J., dissenting)). “Common-law courts imposed different limitations on a plaintiff‘s right to bring suit depending on the type of right the plaintiff sought to vindicate.” Spokeo, 578 U. S., at ____ (THOMAS, J., concurring) (slip op., at 2). “In a suit for the violation of a private right, courts historically presumed that the plaintiff suffered a de facto injury [if] his personal, legal rights [were] invaded.” Ibid. Personal constitutional rights, such as those protected under the First Amendment, are “private rights” in that they “‘belon[g] to individuals, considered as individuals.‘” Ibid. (quoting 3 W. Blackstone, Commentaries on the Laws of England *2); see also Ferber, supra, at 767 (recognizing “the personal nature of constitutional rights” as a “cardinal principl[e] of our constitutional order“); Hessick, Standing, Injury in Fact, and Private Rights, 93 Cornell L. Rev. 275, 287 (2008) (listing “First Amendment rights” as examples of private rights provided by the Constitution). Thus, when a litigant challenges a statute on the grounds that it has violated his First Amendment rights, he has alleged an injury sufficient to establish standing for his claim, regardless of the attendant damages or other real-world harms he may or may not have suffered.
Overbreadth doctrine turns this traditional common-law rule on its head: It allows a litigant without a legal injury to assert the First Amendment rights of hypothetical third parties, so long as he has personally suffered a real-world injury. See Broadrick, 413 U. S., at 612. In other words,
Here, the overbreadth challenge embraced by respondent on appeal relied entirely on the free speech rights of others—immigration lawyers, activists, clergy, and even grandmothers. This is not terribly surprising given that the overbreadth arguments were developed by amici organizations that represent some of these third parties, not by respondent herself. See ante, at 7-8. Although it appears respondent lacked standing on appeal to assert the rights of individuals not before the court, she did have standing to seek relief for alleged violations of her own constitutional rights, which she raised before the Ninth Circuit commandeered her appeal. On remand, the Court of Appeals will be well within the bounds of its Article III jurisdiction in considering these narrower arguments.
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The overbreadth doctrine appears to be the handiwork of judges, based on the misguided “notion that some constitutional rights demand preferential treatment.” Whole Woman‘s Health, 579 U. S., at ____ (THOMAS, J., dissenting) (slip op., at 14). It seemingly lacks any basis in the text or history of the First Amendment, relaxes the traditional standard for facial challenges, and violates Article III principles regarding judicial power and standing. In an appropriate case, we should consider revisiting this doctrine.