Should the supreme court stop inviting amici curiae to defend abandoned lower court decisions?

Stanford Law Review

Volumn 63, Issue 4, 2011, Pages 907-972

  Goldman, Brian P ^a  

^a YALE UNIVERSITY   (United States)

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EID: 79955867232     PISSN: 00389765     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (351)

1. See United States v. Carter, 481 F.3d 601, 604 (8th Cir. 2007), rev'd sub nom. Greenlaw v. United States, 554 U.S. 237 (2008).
2. See Greenlaw, 554 U.S. at 240.
3. Transcript of Oral Argument at 34, Greenlaw, 554 U.S. 237 (No. 07-330).
4. Greenlaw v. United States, 552 U.S. 1135 (2008) (mem.);
5. Tony Mauro, Supreme Court Justices Turn to Ex-Clerks for Unusual Role, Legal Times, Apr. 14, 2008, http://www.law.com/jsp/article.jsp?id=1207904904951.
6. Irizarry v. United States, 553 U.S. 708, 712-13 (2008); Brief for the United States, Irizarry, 553 U.S. 708 (No. 06-7517) (agreeing with the petitioner that there was procedural error, but arguing that the error was harmless so the judgment should be affirmed).
7. Irizarry v. United States, 552 U.S. 1135 (2008) (mem.); see also Mauro, supra note 4.
8. See Granville-Smith v. Granville-Smith, 348 U.S. 885 (1954) (mem.).
9. See Dickerson v. United States, 528 U.S. 1045 (1999) (mem.).
10. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 404 U.S. 813 (1971) (mem.).
11. See Kokoszka v. Belford, 415 U.S. 956 (1974) (mem.).
12. See Alabama v. Shelton, 534 U.S. 987 (2001) (mem.).
13. See O'Connor v. Ortega, 475 U.S. 1006 (1986) (mem.).
14. See Becker v. Montgomery, 531 U.S. 1110 (2001) (mem.).
15. See Clay v. United States, 536 U.S. 974 (2002) (mem.).
16. See Ogbomon v. United States, 519 U.S. 805 (1996) (mem.), cert. dismissed as improvidently granted, 519 U.S. 1073 (1997).
17. See Gutierrez de Martinez v. Lamagno, 513 U.S. 1010 (1994) (mem.).
18. See Mackey v. Lanier Collection Agency & Serv., 484 U.S. 809 (1987) (mem.).
19. See Keeton v. Hustler Magazine, Inc., 464 U.S. 958 (1983) (mem.).
20. See Bousley v. United States, 522 U.S. 990 (1997) (mem.).
21. See Kolender v. Lawson, 459 U.S. 964 (1982) (mem.).
22. See Bob Jones Univ. v. United States, 456 U.S. 922 (1982) (mem.).
23. See Thigpen v. Roberts, 464 U.S. 1006 (1983) (mem.).
24. See New York v. Harris, 492 U.S. 934 (1989) (mem.).
25. See Hohn v. United States, 522 U.S. 944 (1997) (mem.).
26. See United States v. Halper, 488 U.S. 906 (1988) (mem.).
27. In addition to Jorgensen and Rutledge, these include Cassell (Burger), Fried (Har-lan), Klein (Powell), Baker (Stevens), DeBruin (Stevens), Hungar (Kennedy), Kellogg (Rehnquist), Mahoney (Rehnquist), Barksdale (White), Sutton (Powell and Scalia), and Roberts (Rehnquist). The remainder were invited as amici in: Bond v. United States, 131 S. Ct. 589 (2010) (mem.) (Stephen R. McAllister (White and Thomas)); Pepper v. United States, 131 S. Ct. 32 (2010) (mem.) (Adam G. Ciongoli (Alito)); Kucana v. Holder, 130 S. Ct. 30 (2009) (mem.) (Amanda C. Leiter (Stevens)); Reed Elsevier, Inc. v. Muchnick, 129 S. Ct. 1693 (2009) (mem.) (Deborah Jones Merritt (O'Connor and then-Judge Ginsburg)); Great-West Life & Annuity Ins. Co. v. Knudson, 532 U.S. 917 (2001) (mem.) (Richard G. Taranto (O'Connor)); Forney v. Apfel, 522 U.S. 1088 (1998) (mem.) (Allen R. Snyder (Harlan and Rehnquist)); Ornelas v. United States, 516 U.S. 1008 (1995) (mem.) (Peter D. Isakoff (Stevens)); United States v. Fausto, 480 U.S. 904 (1987) (mem.) (John M. Nannes (Rehnquist)); Verlinden B.V. v. Cent. Bank of Nigeria, 459 U.S. 964 (1982) (mem.) (Stephen N. Shulman (Harlan)); and Cheng Fan Kwok v. INS, 390 U.S. 918 (1968) (mem.) (William H. Dempsey, Jr. (Warren)).
28. A few cases in which amici were invited were direct appeals from the district court under the Supreme Court's now nearly abolished mandatory appellate jurisdiction. See, e.g., 16B Charles Alan Wright et al., Federal Practice and Procedure § 4002 (2d ed. 1996). The responding parties in such cases are appellees, not respondents. For purposes of simplicity, however, the term "respondent" is used throughout this Note to refer generically to responding parties in the Supreme Court. Where a particular case is discussed that arose on direct appeal, the responding party will properly be called an "appellee." Additionally, in a single case, discussed in note 146 and accompanying text, an amicus was appointed to support the petitioner's initial position that was subsequently abandoned.
29. The existing literature contains discussions of only specific instances in which an amicus was invited.
30. Erwin Chemerinsky, The Court Should Have Remained Silent: Why the Court Erred in Deciding Dickerson v. United States, 149 U. Pa. L. Rev. 287 (2000) (discussing Dickerson only);
31. Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447-67 (2009) (discussing Bob Jones University v. United States and Irizarry v. United States). Treatises offer similarly sparse discussion.
32. Eugene Gressman et al., Supreme Court Practice 753-54 (9th ed. 2007) (describing the practice briefly and citing a few of the invitation cases);
33. Wright et al., supra note 27, § 3530, at 702 n.42 (3d ed. 2008) (collecting fourteen cases). Even where the Court has itself highlighted the practice, it has only cited a few of the cases in which it has been employed. See, e.g., Cardinal Chem. Co. v. Morton Int'l, Inc., 508 U.S. 83, 104 (1993) (Scalia, J., concurring).
34. United States v. Providence Journal Co., 485 U.S. 693, 703-04 (1988) (citing Bob Jones Univ. v. United States, 456 U.S. 922 (1982) (mem.); United States v. Fausto, 480 U.S. 904 (1987) (mem.)).
35. See 5 U.S. (1 Cranch) 137, 139, 154 (1803).
36. 88 U.S. 162, 164 (1875). The case's landmark holding that the Fourteenth Amendment did not guarantee women the right to vote galvanized the suffrage movement to lobby for what would become the Nineteenth Amendment.
37. Reva B. Siegel, She the People: The Nineteenth Amendment, Sex Equality, Federalism, and the Family, 115 Harv. L. Rev. 947-974 (2002).
38. See 307 U.S. 174, 175 (1939); see also District of Columbia v. Heller, 554 U.S. 570, 623 (2008) ("The defendants made no appearance in [Miller], neither filing a brief nor appearing at oral argument; the Court heard from no one but the Government (reason enough, one would think, not to make that case the beginning and the end of this Court's consideration of the Second Amendment).").
39. See United States v. Gilbert Assocs., 345 U.S. 361, 361 (1953); Local Union No. 10, United Ass'n of Journeymen Plumbers v. Graham, 345 U.S. 192, 196 (1953).
40. Myers v. United States, 272 U.S. 52, 177 (1926).
41. See Myers v. United States, 58 Ct. Cl. 199 (1923); see also Myers, 272 U.S. at 107.
42. See Myers, 272 U.S. at 56, 176.
43. See 349 U.S. 1, 2, 4 (1955).
44. Id. at 3.
45. As Dean Griswold had explained a few years prior, [I]n nearly all of these [problematic Nevada] divorce matters there is no contest. Either the defendant is not present and not served, or he appears but does not oppose the petition, and takes no appeal. The trial court hears the evidence of the plaintiff. That evidence is ordinarily sufficient to establish domicil in Nevada. The court thereupon makes a finding of domicil based upon this evidence, and the decree is in due course granted. The volume of divorce cases in the county courts of Nevada is rather great. The number of appeals taken to the Supreme Court of Nevada is very small.
46. Erwin Griswold, Divorce Jurisdiction and Recognition of Divorce Decrees-A Comparative Study, 65 Harv. L. Rev. 193-212 (1951);
47. see also id. at 212 n.56 ("Divorces may be obtained on almost identical terms in a number of other states, including Idaho, Arkansas and Florida. Recently the Virgin Islands has become a fairly popular place for the more well-to-do divorce seekers.").
48. Granville-Smith, 349 U.S. at 2.
49. See id. at 3-4.
50. Granville-Smith v. Granville-Smith, 214 F.2d 820 (3d Cir. 1954) (en banc) (per curiam).
51. See Alton v. Alton, 207 F.2d 667, 677 (3d Cir. 1953) (en banc) ("Domestic relations are a matter of concern to the state where a person is domiciled. An attempt by another jurisdiction to affect the relation of a foreign domiciliary is unconstitutional even though both parties are in court and neither one raises the question.... [I]f the jurisdiction for divorce continues to be based on domicile, as we think it does, we believe it to be lack of due process for one state to take to itself the readjustment of domestic relations between those domiciled elsewhere."), vacated as moot, 347 U.S. 610 (1954).
52. Alton, 207 F.2d at 672.
53. See Alton v. Alton, 347 U.S. 610 (1954).
54. See Respondent's Statement, Granville-Smith, 349 U.S. 1 (No. 261) (on file with the Felix Frankfurter Papers, Harvard Law School) ("Respondent agrees that the question is novel and important and that it warrants review by this Court. Respondent appeared in both lower courts and did not raise any objection either to the jurisdiction of the court or to the granting of a decree.").
55. See id. ("Respondent is willing to submit his case for decision on the merits on the basis of the briefs and argument in Alton vs Alton."); Letter from Abe Fortas, Att'y for Petitioner, to Harold B. Willey, Clerk, Supreme Court of the United States (Nov. 8, 1954) (on file with the Felix Frankfurter Papers, Harvard Law School); Telegram from Warren Young, Att'y for Respondent, to Clerk, U.S. Supreme Court (on file with the Felix Frankfurter Papers, Harvard Law School).
56. Memorandum from Chief Justice Earl Warren (1953) (on file with the Felix Frankfurter Papers, Harvard Law School).
57. Memorandum on Granting Certiorari in Granville-Smith v. Granville-Smith (No. 261) at 3 (1954) (on file with the Earl Warren Papers, Library of Congress). At the time of the Alton argument in April 1954, Justice Jackson was hospitalized.
58. Bernard Schwartz, Chief Justice Rehnquist, Justice Jackson, and the Brown Case, 1988 Sup. Ct. Rev. 245-264. It is not clear why Justice Douglas did not participate.
59. Memorandum from Chief Justice Earl Warren (1954) (on file with the Earl Warren Papers, Library of Congress).
60. Letter from Justice Felix Frankfurter to Chief Justice Earl Warren (Nov. 18, 1954) (on file with the Earl Warren Papers, Library of Congress).
61. Galloway v. Galloway, [1954] P. 312 at 322 (Eng.).
62. Letter from Justice Felix Frankfurter to Chief Justice Earl Warren, supra note 51.
63. Id.
64. See Notes of Justice William Douglas (Nov. 20, 1954) (on file with the William O. Douglas Papers, Library of Congress).
65. See Granville-Smith v. Granville-Smith, 348 U.S. 885 (1954) (mem.).
66. See Griswold, supra note 39;
67. Felix Frankfurter Dies; Retired Judge Was 82, Harv. Crimson, Feb. 23, 1965, available at http://www.thecrimson.com/article/1965/2/23/felix-frankfurter-dies-retir ed-judge-was.
68. So friendly were the two that in December 1954, while the case was pending, Griswold mentioned casually at the end of a letter addressed to "Felix," "I am deep in the law of divorce. It is going to be a busy vacation." Letter from Erwin Griswold to Justice Felix Frankfurter (Dec. 20, 1954) (on file with the Felix Frankfurter Papers, Harvard Law School).
69. See Granville-Smith v. Granville-Smith, 349 U.S. 1 (1955).
70. Id. at 4 (quoting Granville-Smith v. Granville-Smith, 348 U.S. 885 (1954) (mem.)).
71. David M. O'Brien, Managing the Business of the Supreme Court, 45 Pub. Admin. Rev. 667-672 (1985).
72. Memorandum from William McKinnie, Legal Officer, U.S. Supreme Court 5 (Oct. 4, 1988) (on file with the Harry Blackmun Papers, Library of Congress); see also, e.g., Memorandum from William McKinnie, Legal Officer, U.S. Supreme Court 6 n.1 (May 26, 1989) (on file with the Harry Blackmun Papers, Library of Congress) (recommending, as an alternative, appointing an amicus in New York v. Harris); Memorandum from Richard Schickele, Legal Officer, U.S. Supreme Court 4-5 (June 13, 1988) (on file with the Harry Blackmun Papers, Library of Congress) (recommending appointing an amicus in Bonito Boats, Inc. v. Thunder Craft Boats, Inc.); cf. Letter from Francis J. Lorson, Chief Deputy Clerk, Supreme Court of the United States, to Chief Justice William Rehnquist (Sept. 14, 1987) (on file with the Harry Blackmun Papers, Library of Congress) (recommending appointing an amicus in Mackey v. Lanier Collections Agency & Service, Inc.).
73. To better understand what drove the decision to appoint an amicus in each case, I consulted the relevant case files in the papers of Chief Justice Warren and Justices Douglas, Frankfurter, Marshall, and Blackmun, which contained certiorari-stage memoranda, notes from law clerks, memoranda from the Legal Office, and other internal communications discussing the reasons an amicus might be necessary. These files cover the twenty-six cases from Granville-Smith to Toibb v. Radloff, the last invited-amicus case prior to Justice Blackmun's retirement. The impetus for each of the remaining seventeen invitations is derived only from the opinion of the Court and the briefs.
74. David M. Rosenzweig, Note, Confession of Error in the Supreme Court by the Solicitor General, 82 Geo. L.J. 2079-2080 (1994);
75. see also 28 U.S.C. § 518(a) (2006).
76. Eric Schnapper, Becket at the Bar-The Conflicting Obligations of the Solicitor General, 21 Loy. L.A. L. Rev. 1187-1203 (1988) ("[T]he relationship between the Solicitor General and the Court is not a one-case-stand, but a permanent, indissoluble marriage; as passionately as the Solicitor General may desire a particular result, he must also worry about whether the Court will still respect him when the case is over.").
77. Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law 9 (1987) ("[W]hen the government wins on grounds that strike the Solicitor General as unjust, he may 'confess error' and recommend that the Supreme Court overturn the flawed decision.").
78. Cf. Role of the Solicitor General, 1 Op. O.L.C. 228, 230 (1977) ("[I]t has been thought to be desirable, generally, for the Government to adopt a single, coherent position with respect to legal questions that are presented to the Supreme Court. Because it is not uncommon for there to be conflicting views among the various offices and agencies within the executive branch, the Solicitor General, having the responsibility for presenting the views of the Government to the Court, must have power to reconcile differences among his clients, to accept the views of some and to reject others, and, in proper cases, to formulate views of his own.").
79. Compare, for example, the government's supplemental letter brief in the Third Circuit in United States v. Bond, 581 F.3d 128 (3d Cir. 2009), see infra note 91, which was signed by the local U.S. Attorney's Office in Philadelphia, with the government's brief in response to the petition for certiorari, see infra note 92, which was signed by the Acting Solicitor General and attorneys from the main office of the Justice Department's Criminal Division in Washington, D.C.
80. See 28 C.F.R. § 0.20(b) (2010).
81. In general, however, the Solicitor General has resisted swings in position as a new political party takes control of the government in order to maintain its reputation as a neutral, honest broker before the Court. See, e.g., Schnapper, supra note 64, at 1192 ("[One commentator notes] that the Solicitor General traditionally has not been, and ought not become, a 'mouthpiece' for the President or an 'ideological cheerleader for the administration.'"). But not all Solicitors General have approached the position with such a spirit of nonpartisanship. President Reagan's second Solicitor General, Charles Fried, stirred controversy by adopting positions reflecting where the administration sought to see the law move, as opposed to where it was.
82. Nancy Blodgett, Solicitor General: Has Office Been Politicized?, A.B.A. J., May 1, 1986, at 20.
83. See, e.g., Leonard v. United States, 378 U.S. 544, 544-45 (1964) (per curiam).
84. See, e.g., Frankel v. United States, 130 S. Ct. 72, 72 (2009) (mem.); Brief for the United States at 19, Frankel, 130 S. Ct. 72 (No. 08-10150), 2009 WL 3236337 ("[T]he denial of counsel on direct appeal is a sufficiently drastic and serious matter as to warrant additional proceedings. In the government's view, the appropriate course would be to grant the petition, vacate the judgment below, and remand the case for further proceedings in the court of appeals.").
85. See, e.g., Gay v. United States, 411 U.S. 974, 974-75 (1973) (Douglas, J., dissenting from denial of certiorari) (objecting to the denial despite the Solicitor General's confession of error where one of the lower court judges should have recused himself due to a conflict of interest).
86. See Gutierrez de Martinez v. Lamagno, 515 U.S. 417, 419-20 (1995).
87. Id. at 420 (alteration in original) (citing 28 U.S.C. § 2680(k) (1994)).
88. See id. at 422-23.
89. Compare Brief for the United States at 7-8, Gutierrez de Martinez v. Lamagno, 513 U.S. 998 (1994) (No. 94-167), with Brief for the United States at 15-22, Gutierrez de Martinez v. Lamagno, 23 F.3d 402 (4th Cir. 1994) (No. 93-1573), 1994 WL 728562.
90. Brief for the United States, supra note 76, at 8 n.6; see Gutierrez de Martinez v. Lamagno, 513 U.S. 1010 (1994) (mem.) (inviting an amicus). The Court would have had the benefit of an adversarial presentation even without the amicus, however, since the individual federal employee obtained his own counsel to represent his interests at the Supreme Court. See Gutierrez de Martinez, 515 U.S. at 419.
91. See Brief for the United States at 11-12, Bousley v. United States, 521 U.S. 1152 (1997) (No. 96-8516).
92. See Bousely v. Brooks, 522 U.S. 990 (1997) (mem.).
93. See Brief for the United States at 13-15, Pepper v. United States, 130 S. Ct. 3499 (2010) (No. 09-6822).
94. See Pepper v. United States, 131 S. Ct. 32 (2010) (mem.); Brief for the United States, supra note 80.
95. See 461 U.S. 574 (1983).
96. Id. at 579-82 (alteration in original).
97. See Bob Jones Univ. v. United States, 639 F.2d 147, 149-51 (1980); Bob Jones Univ. v. United States, 468 F. Supp. 890, 896 (1978).
98. See Memorandum on Granting Certiorari in Bob Jones University v. United States (No. 81-3) at 5-6 (Sept. 18, 1981) (on file with the Harry Blackmun Papers, Library of Congress).
99. See Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 2 (Feb. 26, 1982) (on file with the Harry Blackmun Papers, Library of Congress). In the brief, the Acting Solicitor General expressly disavowed this change of position, noting that the "brief sets forth the position of the United States," but that "[h]is views" on the statutory question were reflected in the brief in opposition. Schnapper, supra note 64, at 1187 n.3 (quoting Brief for the United States at 1, Bob Jones Univ. v. United States, 461 U.S. 574 (1983) (No. 81-3)).
100. See Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 1 (Mar. 4, 1982).
101. Bob Jones Univ. v. United States, 456 U.S. 922, 922 (1982) (mem.).
102. See Bob Jones Univ., 461 U.S. at 576-77 (listing amicus curiae briefs filed).
103. Id. at 605.
104. See Supplemental Letter Brief for the United States, United States v. Bond, 581 F.3d 128 (3d Cir. 2009) (No. 08-2677). The government had not objected to the defendant's standing at first, but following oral argument the Third Circuit requested sua sponte that the parties brief the question. See Bond, 581 F.3d at 135-36 & n.5. The case is therefore similar in many respects to the next category of cases, in which the lower court raises an issue on its own. Unlike in those cases, however, here the parties took adverse positions when asked for their views by the court. It was only when the Solicitor General reversed the government's position that an amicus became necessary.
105. Brief for the United States at 6, Bond v. United States, 131 S. Ct. 455 (2010) (No. 09-1227).
106. Id. at 17.
107. See Bond, 131 S. Ct. 455 (granting certiorari); Bond v. United States, 131 S. Ct. 589 (2010) (mem.) (inviting amicus).
108. See Caplan, supra note 65, at 9. This generalization is not always true of private respondents, of course, as Granville-Smith demonstrated: the husband did not want to "win" by having his wife's suit dismissed for want of jurisdiction; he wanted an adjudication on the merits that would result in a divorce decree.
109. 130 S. Ct. 827 (2010).
110. Kucana v. Mukasey, 533 F.3d 534, 537 (7th Cir. 2008), rev'd sub nom. Kucana v. Holder, 130 S. Ct. 827 (2010).
111. Brief for the Respondent Supporting Petitioner at 35, 36, Kucana, 130 S. Ct. 827 (No. 08-911).
112. See Kucana, 533 F.3d at 536-39.
113. See Brief for the Respondent in Opposition at 9-11, Kucana v. Holder, 129 S. Ct. 2075 (2009) (No. 08-911). The Solicitor General argued that review was unwarranted despite the error, however, because "review would be premature" and the "petitioner could not ultimately succeed on the merits of his challenge to the removal order" even if the court were to review it. Id. at 9.
114. Kucana v. Holder, 130 S. Ct. 30 (2009) (mem.).
115. See Becker v. Montgomery, 532 U.S. 757, 761-62 (2001); Forney v. Apfel, 524 U.S. 266, 268 (1998); Cheng Fan Kwok v. INS, 392 U.S. 206, 207-08, 210 n.9 (1968). In Becker, for example, the Sixth Circuit had ruled it lacked jurisdiction to hear the appeal of a pro se plaintiff's § 1983 claim because he failed to hand sign the notice of appeal. See 532 U.S. at 759-60. In response to Becker's petition for certiorari, the Ohio Attorney General urged the Court to reverse, noting, "We cannot honestly claim any uncertain[t]y about petitioner Becker's intention to pursue an appeal once he filed his timely, though unsigned, notice of appeal in the district court. We never objected to the lack of a signature on his notice of appeal, and fully expected the court of appeals to address his appellate arguments on the merits." Id. at 762 (alteration in original) (quoting Brief in Response to Petition for Certiorari at 1, Becker v. Montgomery, 531 U.S. 1069 (2001) (No. 00-6374)).
116. In Forney, after the Ninth Circuit gave notice of its intent to address its own jurisdiction, counsel for the government argued against the court's jurisdiction at oral argument, contravening its brief in the case. See Brief for the Respondent in Support of Reversal at 6 n.4, Forney, 524 U.S. 266 (No. 97-5737). In its brief on the merits, the Solicitor General noted that this momentary change in position had been changed back. Id. The case is better thought of as resulting from a sua sponte decision than a change of position because the government's initial and ultimate positions were the same, and the brief reversal in between came about only after the court raised the jurisdictional question itself.
117. See supra note 46 and accompanying text.
118. 534 U.S. 204 (2002).
119. See id. at 208-09.
120. Great-W. Life & Annuity Ins. Co. v. Knudson, No. 98-56472, 2000 WL 145374, at *1 (9th Cir. Feb. 7, 2000), aff'd, 534 U.S. 204.
121. See id. The decision is inconclusive as to whether the noncognizability of the claim for relief is a jurisdictional defect or a decision on the merits. See id. at *1 n.5.
122. See Petition for a Writ of Certiorari, Great-W. Life & Annuity Ins. Co. v. Knud-son, 531 U.S. 1124 (2001) (No. 99-1786).
123. See Great-W. Life Ins., 534 U.S. at 226 n.1 (Ginsburg, J., dissenting); Brief in Opposition at 8-9, Great-W. Life Ins., 531 U.S. 1124 (No. 99-1786).
124. Great-W. Life & Annuity Ins. Co. v. Knudson, 532 U.S. 917 (2001) (mem.).
125. See 130 S. Ct. 1237, 1242-43 (2010).
126. See id. at 1242.
127. Reed Elsevier, Inc. v. Muchnick, 129 S. Ct. 1693 (2009).
128. See United States v. Carter, 481 F.3d 601, 607-08 (8th Cir. 2007), rev'd sub nom. Greenlaw v. United States, 554 U.S. 237 (2008); see also text accompanying notes 1-3.
129. Carter, 481 F.3d at 608 (citing Fed. R. Crim. P. 52(b), which says that "[a] plain error that affects substantial rights may be considered even though it was not brought to the court's attention").
130. Brief for the United States at 42-43, Greenlaw v. United States, 552 U.S. 1087 (2008) (No. 07-330). The Solicitor General admonished: "That determination, which often involves diverse reasons unrelated to the merits of a decision, is not well suited to second-guessing by the courts." Id. at 43 (citation and internal quotation marks omitted).
131. Greenlaw v. United States, 552 U.S. 1135 (2008) (mem.).
132. See Clay v. United States, 537 U.S. 522 (2003); Brief for the United States in Opposition at 4, Clay v. United States, 536 U.S. 957 (2002) (No. 01-1500).
133. Brief for the United States in Opposition, supra note 118, at 11-12. Similarly, in Toibb v. Radloff, the bankruptcy court acted sua sponte on a defense that had been waived by the respondent-trustee-in-bankruptcy: that the petitioner-debtor had failed to state a claim upon which relief could be granted. The debtor, an individual, had sought to convert his case under Chapter 7 of the Bankruptcy Code (liquidation) to a Chapter 11 case (reorganization) when he discovered that his estate contained more assets than he had realized. The bankruptcy court, and subsequent courts on appeal, had held that an individual debtor not engaged in business was ineligible to reorganize under Chapter 11. See 501 U.S. 157, 157, 160 (1991). As the case reached the Court, the United States Trustee had stepped in to replace the trustee, who had been dismissed. See id. at 160 n.4. Representing the Trustee, the Solicitor General suggested that the question was important and worthy of certiorari because the courts of appeals were divided, and noted its agreement with the petitioner that he was eligible to seek relief under Chapter 11 of the Bankruptcy Code. See Brief for the Respondent at 6, 8, Toibb v. Radloff, 498 U.S. 1060 (1991) (No. 90-368). The Solicitor General suggested that the Court "might wish to appoint counsel to defend the judgment below," id. at 9, which it did, Toibb v. Radloff, 498 U.S. 1065 (1991) (mem.).
134. See generally Chemerinsky, supra note 28.
135. See 166 F.3d 667, 692 (4th Cir. 1999), rev'd, 530 U.S. 428 (2000).
136. Eric D. Miller, Comment, Should Courts Consider 18 U.S.C. § 3501 Sua Sponte?, 65 U. Chi. L. Rev. 1029-1035 (1998).
137. See Brief for the United States at 26-29, 31-38, Dickerson v. United States, 528 U.S. 1045 (1999) (No. 99-5525); see also Miller, supra note 122, at 1036-37.
138. See Brief for the United States, supra note 123, at 50.
139. Dickerson, 528 U.S. 1045; see Brief of the Washington Legal Foundation and Safe Streets Coalition as Amici Curiae, United States v. Dickerson, 166 F.3d 667 (4th Cir. 1999) (No. 97-4750).
140. See Brief of Appellee at 18, United States v. Irizarry, 458 F.3d 1208 (11th Cir. 2006) (No. 05-11718-DD).
141. See Irizarry, 458 F.3d 1208, aff'd, 553 U.S. 708 (2008); Brief for the United States in Opposition at 10, 13, Irizarry v. United States, 552 U.S. 1086 (2008) (No. 06-7517).
142. Irizarry v. United States, 552 U.S. 1135 (2008) (mem.).
143. See Brief for the United States at 11, Ogbomon v. United States, 518 U.S. 1056 (1996) (No. 95-8736). After the petitioner's supervised release was revoked, the deportation condition imposed on that term of release was lifted as well, so the case became moot. See Suggestion of Mootness at 2, Ogbomon v. United States, 519 U.S. 1073 (1997) (No. 95-8736). The Court then dismissed the writ as improvidently granted. Ogbomon, 519 U.S. 1073.
144. See 517 U.S. 690, 695 n.4 (1996); Brief for the United States at 12, Ornelas, 517 U.S. 690 (No. 95-5257) ("The advantages that normally justify de novo appellate review are fully applicable here. First, the exposition of the Fourth Amendment standard of reasonableness depends on the process of case-by-case elaboration in the appellate courts. Second, the development of the law at the appellate level gives guidance to law enforcement officers and promotes consistent outcomes in the trial courts. Third, the considerations favoring de novo review have special force where, as here, a constitutional right is concerned.").
145. See United States v. Spears, 965 F.2d 262, 269 (7th Cir. 1992).
146. See United States v. Ornelas-Ledesma, 16 F.3d 714, 719 (7th Cir. 1994), vacated sub nom. Ornelas v. United States, 517 U.S. 690 (1996).
147. Ornelas v. United States, 516 U.S. 1008 (1995) (mem.).
148. See 423 U.S. 261, 263-65 (1976).
149. See id. at 265.
150. Memorandum from Chief Justice Warren Burger to the Conference (May 21, 1975) (on file with the Harry Blackmun Papers, Library of Congress) ("Respondent Weber who is proceeding pro se has no interest in this issue.... [Respondent] has advised the Clerk that he will not appear here.").
151. Weinberger v. Weber, 421 U.S. 985 (1975) (mem.).
152. See, e.g., Nat'l Ass'n of Home Builders v. Defenders of Wildlife, 549 U.S. 1105 (2007) (mem.) ("In addition to the questions presented by the petitions, the parties are requested to brief and argue the following questions...."); Feltner v. Columbia Pictures Television, Inc., 521 U.S. 1151 (1997) (mem.); Arizonans for Official English v. Arizona, 517 U.S. 1102 (1996) (mem.).
153. See, e.g., Citizens United v. FEC, 129 S. Ct. 2893 (2009) (mem.) ("This case is restored to the calendar for re-argument. The parties are directed to file supplemental briefs addressing the following question...."); Patterson v. McLean Credit Union, 485 U.S. 617, 617 (1988) (per curiam); New Jersey v. T.L.O., 468 U.S. 1214 (1984) (mem.).
154. See 522 U.S. 944, 944-45 (1997) (mem.).
155. See Hohn v. United States, 524 U.S. 236, 239-40 (1998).
156. See id. at 240.
157. See id.
158. Id. at 240-41 (quoting 28 U.S.C. § 1254 (1994)).
159. Id. at 241 (citation omitted).
160. 534 U.S. 987 (2001) (mem.) (emphasis added).
161. See Alabama v. Shelton, 535 U.S. 654, 657-61 (2002).
162. Petition for a Writ of Certiorari at i, Alabama v. Shelton, 532 U.S. 1018 (2001) (No. 00-1214) (internal citations omitted).
163. Shelton, 535 U.S. at 661.
164. Id. (quoting Shelton, 534 U.S. at 987); see also id. at 673 n.13 ("Not until its reply brief did the State convey that, as it comprehends Argersinger and Scott, there is no possibility that Shelton's suspended sentence will be activated if he violates the terms of his probation. Before the Supreme Court of Alabama, the State's position coincided with the position now argued by amicus." (citations and internal quotation marks omitted)).
165. Robert T. Lasky, Law Clerk, U.S. Supreme Court, to Chief Justice Earl Warren 2 (Nov. 30, 1968) (on file with the Earl Warren Papers, Library of Congress).
166. See Comm'r v. Stidger, 386 U.S. 287 (1967); Memorandum from Phillip E. Johnson, Law Clerk, U.S. Supreme Court, to Chief Justice Earl Warren 1 (Oct. 19, 1966) (on file with the Earl Warren Papers, Library of Congress).
167. Memorandum from Phillip E. Johnson to Chief Justice Earl Warren, supra note 152, at 1-2 (referencing suggestion of Clerk of the Court John F. Davis).
168. See Daniel v. Paul, 395 U.S. 298, 300 n.2 (1969); Memorandum from Robert T. Lasky to Chief Justice Earl Warren, supra note 151, at 1 (noting that in response to the Court's call for a response to the certiorari petition in the case, respondent's counsel sent a letter "stating that his clients do not wish to expend any more money on this litigation," and that if the court were to reverse the respondent would "simply cease operations"). This rationale is perhaps confusing, since nothing is unusual about a defendant corporation facing the risk of bankruptcy if it loses in litigation, and that specter would presumably provide greater incentive to litigate zealously in defense of the judgment in its favor below, not less.
169. See Kokosza v. Belford, 417 U.S. 642 (1974); Memorandum from James Ginty, Legal Officer, U.S. Supreme Court, to Harry Blackmun 1-2 (Feb. 13, 1974) (on file with the Harry Blackmun Papers, Library of Congress) ("Resp[ondent] trustee states that there are no assets in the bankruptcy estate with which to compensate him or with which to engage the services of an attorney to pursue this litigation. He requests that the Court consider resp[ondent]'s case on the basis of the decision and judgment below.").
170. Mackey: Mackey v. Lanier Collection Agency & Serv., Inc., 486 U.S. 825 (1988); see Letter from Carl S. Pedigo, Jr., Att'y for Respondent, to Sandy Nelsen, Assistant Clerk, Supreme Court of the United States (Sept. 1, 1987) (on file with the Harry Blackmun Papers, Library of Congress) ("[D]ue to the financial burdens of this proceeding, Lanier has instructed me... to cease all work on this case."). Brown: Brown v. Hartlage, 456 U.S. 45 (1982); see Letter from Victor L. Baltzell, Jr., Counsel for Respondent, to Alexander L. Ste-vas, Clerk, Supreme Court of the United States (July 13, 1981) (on file with the Harry Blackmun Papers, Library of Congress) ("I have been advised and instructed by my client to proceed no further in the preparation, printing and filing of a brief on the merits.... Mr. Hartlage has advised me that he does not possess, at this time, the financial capabilities to proceed further with a written response."). Flair Builders: Int'l Union of Operating Eng'rs, Local 150 v. Flair Builders, Inc., 406 U.S. 487 (1972);
171. Michael A. LaFond, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun 1 (Mar. 2, 1972) (on file with the Harry Blackmun Papers, Library of Congress) ("Respondent has refused to authorize the attorneys to file a brief on the merits or to participate in oral argument. Evidently respondent does not want to incur the expense-the attorneys assert that the financial condition of respondent would not justify filing a motion for leave to proceed IFP.").
172. The two cases were Daniel and Flair Builders. See Memorandum from Michael A. LaFond to Justice Harry Blackman, supra note 156, at 1 ("The attorneys assert that they are willing to prepare a brief and to participate in oral argument at their own expense."); Memorandum from Robert T. Lasky, Law Clerk, U.S. Supreme Court, to Chief Justice Earl Warren 12 n.3 (Mar. 19, 1969) (on file with the Earl Warren Papers, Library of Congress). Compare Int'l Union of Operating Eng'rs, Local 150 v. Flair Builders, Inc., 440 F.2d 557, 557 (7th Cir. 1971) ("J. Robert Murphy... for defendant-appellee"), with Flair Builders, 406 U.S. at 487 (1972) ("J. Robert Murphy,... as amicus curiae, in support of the judgment below").
173. See New York v. Harris, 495 U.S. 14 (1990); Memorandum from Joseph F. Spa-niol, Jr., Clerk of the Court, U.S. Supreme Court, to Justice Thurgood Marshall (Aug. 8, 1989) (on file with the Harry Blackmun Papers, Library of Congress) (noting that respondent, who had proceeded pro se in his state criminal proceedings, had not responded to multiple communications from the Court). Harris's motion to proceed IFP had been granted, but then he did not respond to the Court's request that he name counsel to appoint for him. See New York v. Harris, 490 U.S. 1105 (June 12, 1989) (mem.); Letter from Joseph F. Spaniol, Jr., Clerk of the Court, U.S. Supreme Court, to Bernard Harris, Respondent (July 12, 1989) (on file with the Harry Blackmun Papers, Library of Congress). The claimant in a forfeiture action by the government also ceased responding to requests from the Court during the direct appeal of his successful First Amendment defense in the district court. See United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973); Memorandum from Robert E. Gooding, Jr., Law Clerk, U.S. Supreme Court (Feb. 22, 1971) (on file with the Harry Blackmun Papers, Library of Congress) (reporting that after appellee submitted a unilateral stipulation of facts and a copy of his motion to dismiss before the lower court, "no answer was received" by the Court to multiple requests for proper responsive filings).
174. See Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141 (1989); Memorandum from Richard Schickele, Legal Officer, U.S. Supreme Court 3 (June 13, 1988) (on file with the Harry Blackmun Papers, Library of Congress) (noting that respondent's new counsel had "advised that our client... will not participate further in this proceeding" and instead "submits the issues in this case to the judgment of the court"); Memorandum from Richard Schickele, Legal Officer, U.S. Supreme Court 2-3 (May 9, 1988) (on file with the Harry Blackmun Papers, Library of Congress) (explaining that after the Court had called for a response to the petition for certiorari, counsel "informed his client of its obligation to file a response, [but] the client had not authorized him to file a response and had discharged his law firm"). Counsel was similarly instructed in Verlinden, B.V. v. Central Bank of Nigeria, 461 U.S. 480 (1983). See Memorandum from Alexander L. Stevas, Clerk, Supreme Court of the United States, to Chief Justice Warren Burger (Oct. 8, 1982) (on file with the Thurgood Marshall Papers, Library of Congress) ("Counsel for the respondent has informed me that he has been instructed by his client not to proceed further in this case and hence no brief will be forthcoming for the respondent, unless the Court appoints an amicus curiae to file such brief.").
175. See Gomez v. Perez, 409 U.S. 535 (1973) (per curiam). The appellant challenged the constitutionality of a Texas law providing that fathers have no legal obligation to support their illegitimate children. Id. at 536. In the Texas courts, the father appeared early on to file a general denial only, but he "did not appear [at] trial, either personally or by attorney." G-- v. P--, 466 S.W.2d 41, 41 (Tex. Civ. App. 1971). When appellant appealed to the Supreme Court, the Court called for the view of the Attorney General of Texas, apparently in lieu of pursuing a response from the father. See Memorandum for the State of Texas as Ami-cus Curiae 1, Gomez v. Perez, 408 U.S. 920 (1972) (No. 71-575). On the merits, however, the Court invited a private amicus to defend the judgment below. Gomez v. Perez, 408 U.S. 942 (1972) (mem.).
176. See Thigpen v. Roberts, 464 U.S. 1006, 1006 (1983) (mem.) ("It appearing that respondent is not represented by a member of the Bar of this Court, it is ordered that Rhesa H. Barksdale, Esquire, of Jackson, Miss., is invited to present oral argument as amicus cu-riae in support of the judgment below."). Barksdale, a former clerk to Justice White who practiced in Mississippi, where the respondent habeas petitioner was imprisoned, was invited to deliver oral argument one month after the Court received the respondent's brief on the merits. He opted to submit a brief of his own, which at sixty-five pages provided the Court with a much more detailed argument for affirmance than the respondent's ten-page brief. Compare Brief of Amicus Curiae Supporting Oral Argument to Be Presented on Invitation from the Court in Support of the Judgment Below in Support of Affirmance, Thigpen v. Roberts, 468 U.S. 27 (1984) (No. 82-1330), with Brief for Respondent, Thigpen, 468 U.S. 27 (No. 82-1330). Indeed, though the historical record is silent on this point, given the poor quality of the respondent's brief and the timing of inviting the amicus after that brief had been received, it seems plausible that the Court was actually motivated to appoint an amicus in this case in order to secure more effective representation of counsel at the Court. In a small hint that the respondent's brief did not impress the Court, the bench memo in the case written to Justice Blackmun by his law clerk provides only minimal discussion of the brief as compared to the discussion of Barksdale's brief. See Memorandum from Anna L. Durand, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun 5-6 (April 20, 1984) (on file with the Harry Blackmun Papers, Library of Congress).
177. See United States v. Cores, 356 U.S. 405 (1958). The Court discussed the "[r]epresentation of appellee" on November 22, 1957, two weeks before the amicus was appointed, but available materials do not explain what was at issue. See Docket Sheet, Cores, 356 U.S. 405 (No. 455) (on file with the William O. Douglas Papers, Library of Congress).
178. See United States v. Fausto, 480 U.S. 904 (1987) (mem.) (granting respondent's motion to file a brief pro se, denying his motion to argue pro se, and inviting an amicus to brief and argue the case); O'Connor v. Ortega, 474 U.S. 1048 (1986) (mem.) (denying both leave to proceed IFP and appointment of counsel); Keeton v. Hustler Magazine, Inc., 464 U.S. 958 (1983) (mem.) (denying the "motion of Larry Flynt for leave to present oral argument pro se" and inviting an attorney who had filed an amicus brief on behalf of a business association "to present oral argument as amicus curiae in support of the judgment below"); Kolender v. Lawson, 459 U.S. 964 (1982) (mem.) (denying leave to present oral argument pro se and appointing the counsel of record from appellee's brief to argue as amicus); Memorandum from Chief Justice Warren Burger to the Conference (Oct. 27, 1982) (on file with the Harry Blackmun Papers, Library of Congress) (discussing the offer from "respondent's former counsel" in Kolender "to assist the Court 'in the consideration of this appeal in any way the Court may find helpful and appropriate'").
179. Letter from Beth Heifetz, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun 2 (Jan. 8, 1986) (on file with the Harry Blackmun Papers, Library of Congress).
180. Letter from James Fanto, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun (Oct. 4, 1986) (on file with the Harry Blackmun Papers, Library of Congress); see Letter from Magno J. Ortega to Supreme Court and Attorney General staff (Sept. 30, 1986) (on file with the Harry Blackmun Papers, Library of Congress).
181. Letter from Magno J. Ortega to Clerk of the Supreme Court (Jan. 12, 1986) (on file with the Harry Blackmun Papers, Library of Congress); see, e.g., Memorandum from Richard Schickele, Legal Officer, U.S. Supreme Court 3 (Jan. 6, 1986) (on file with the Harry Blackmun Papers, Library of Congress); Memorandum from Chief Justice Warren Burger to the Conference 2 (Jan. 28, 1986) (on file with the Harry Blackmun Papers, Library of Congress) ("I seriously doubt that I would sit to hear a pro se oral argument from this respondent.").
182. See Memorandum from Chief Justice Warren Burger to the Conference, supra note 166, at 2 ("Under the circumstances, I cannot fault Mr. Klein for 'firing' his client.").
183. Letter from Mark D. Rosenbaum, Former Counsel to Appellee in Kolender v. Lawson, to Alexander L. Stevas, Clerk, U.S. Supreme Court (Oct. 21, 1982) (on file with the Thurgood Marshall Papers, Library of Congress).
184. Letter from Norman Roy Grutman, Counsel for Petitioner, to Alexander L. Stevas, Clerk, Supreme Court of the United States 2 (Nov. 3, 1983) (on file with the Harry Black-mun Papers, Library of Congress); see also Letter from Larry C. Flynt to Justice Harry Blackmun (Nov. 3, 1983) (on file with the Harry Blackmun Papers, Library of Congress); Memorandum from Alexander L. Stevas, Clerk, Supreme Court of the United States, to the Chief Justice (Nov. 3, 1983) (on file with the Harry Blackmun Papers, Library of Congress) (noting that a corporation cannot argue pro se and suggesting that counsel for an already-filed amicus brief be invited to argue). Petitioner and the Court's fear of allowing Flynt to argue was not unfounded; while attending oral argument even after his motion to argue had been denied, "Flynt began a profane outburst" and "was immediately removed from the Courtroom and arrested." Memorandum from Alfred Wong, Marshal of the Court 2 (Nov. 8, 1983) (on file with the Harry Blackmun Papers, Library of Congress).
185. Keeton v. Hustler Magazine, Inc., 464 U.S. 958 (1983) (mem.).
186. See Sup. Ct. R. 39 (formerly Rule 46.1).
187. Cox: Vermont v. Cox, 481 U.S. 1012 (1987) (mem.) (denying respondent's motion to proceed further IFP and inviting his attorney to brief and argue the case as amicus); see Memorandum from William McKinnie, Legal Officer, U.S. Supreme Court 1 (Apr. 14, 1987) (on file with the Harry Blackmun Papers, Library of Congress) (discussing respondent's counsel's request that the affidavit be waived due to his inability to locate the respondent). Ritchie: Pennsylvania v. Ritchie, 478 U.S. 1019 (1986) (mem.) (denying respondent's motion to proceed further IFP and inviting his attorney to brief and argue the case as ami-cus); see Memorandum from David Niddrie, Legal Officer, U.S. Supreme Court (June 24, 1986) (on file with the Harry Blackmun Papers, Library of Congress) (explaining that "[r]esp[ondent]'s attorney is unable to contact resp[ondent]" and seeks leave to proceed IFP without the required affidavit, and recommending "that the Court grant counsel's request for ifp status on condition that the... costs will be taxed against resp[ondent] if he is located and found to have sufficient assets"). Sharpe: United States v. Sharpe, 469 U.S. 809 (1984) (mem.) (denying respondent's motion to proceed further IFP and for appointment of counsel, and inviting his attorney to brief and argue the case as amicus); see Memorandum from David Niddrie, Legal Officer, U.S. Supreme Court (Sept. 20, 1984) (on file with the Harry Blackmun Papers, Library of Congress) [hereinafter Niddrie Sharpe Memorandum].
188. Note from L.N. to Justice Harry Blackmun (Apr. 15, 1987), handwritten on Memorandum from William McKinnie, supra note 172, at 4.
189. Memorandum from William McKinnie, Legal Officer, U.S. Supreme Court 3 (Oct. 7, 1988) (on file with the Harry Blackmun Papers, Library of Congress); see United States v. Halper, 490 U.S. 435, 437 (1989).
190. United States v. Halper, 488 U.S. 906 (1988) (mem.). The appellee proceeded pro se below, so unlike the other respondents in this category, he did not have prior counsel who could be appointed as an amicus. See Brief of Amicus Curiae in Support of the Judgment Below at 5 n.4, Halper, 490 U.S. 435 (No. 87-1383).
191. Letter from Justice Felix Frankfurter to Chief Justice Earl Warren, supra note 51.
192. Note from James J. Knicely, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun (Oct. 19, 1973), handwritten on Memorandum from Arthur F. Fergenson, Law Clerk, U.S. Supreme Court 4 (Oct. 15, 1973) (on file with the Harry Blackmun Papers, Library of Congress) (concerning Kokoszka v. Belford, No. 73-5265).
193. Memorandum from Michael Conley, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun (Jan. 11, 1991) (on file with the Harry Blackmun Papers, Library of Congress) (concerning Toibb v. Radloff, No. 90-368).
194. Note from James Fanto, Law Clerk, U.S. Supreme Court, to Justice Harry Black-mun (Feb. 5, 1987), handwritten on Memorandum from Richard Schickele, Legal Officer, U.S. Supreme Court 6 (Feb. 3, 1987) (on file with the Harry Blackmun Papers, Library of Congress) (concerning United States v. Fausto, No. 86-595).
195. Greenlaw v. United States, 554 U.S. 237, 243 (2008); see also Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (Scalia, J.) ("The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.... Failure to enforce [the party-presentation] requirement will ultimately deprive us in substantial measure of that assistance of
196. Stephan Landsman, The Decline of the Adversary System, 29 Buff. L. Rev. 487-490 (1980).
197. U.S. Const. art. III, § 2; see, e.g., Baker v. Carr, 369 U.S. 186, 204 (1962) ("Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing." (emphasis added)). There has long been debate over whether the Constitution compels the justiciability doctrines or whether they are merely prudential.
198. Erwin Chemerinsky, Federal Jurisdiction § 2.1, at 44-45 (5th ed. 2007);
199. Matthew I. Hall, The Partially Prudential Doctrine of Mootness, 77 Geo. Wash. L. Rev. 562 (2009). This Note does not seek to stake a position in that debate, focusing instead on how the doctrines apply to invited-amicus cases, regardless of their origins.
200. Flast v. Cohen, 392 U.S. 83, 94-95 (1968).
201. DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 341 (2006).
202. William B. Rubenstein, The Concept of Equality in Civil Procedure, 23 Cardozo L. Rev. 1865-1873 n.25 (2002) (internal quotation marks omitted) (quoting Lon L. Fuller, The Adversary System, in Talks on American Law 39, 43 (H. Berman ed., 1971)).
203. Lon L. Fuller & John D. Randall, Professional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159-1161 (1958).
204. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 159 (1803).
205. Dickerson v. United States, 530 U.S. 428, 441 n.7 (2000).
206. Kucana v. Holder, 130 S. Ct. 827, 841 (2010) (Alito, J., concurring in the judgment).
207. Letter from Rhesa H. Barksdale, Invited Amicus in Thigpen v. Roberts (No. 82-1330), to Chief Justice Warren Burger (Aug. 3, 1984) (on file with the Harry Blackmun Papers, Library of Congress) ("The Court's invitation provided me with a once in a lifetime opportunity, cherished by all lawyers, and for which I will be forever grateful. The oral argument was the highlight of my experiences as a lawyer; and the opportunity to provide such pro bono assistance, and serve as good stewards of the privilege granted us to practice law, was very rewarding to my Firm and me.").
208. See, e.g., Mauro, supra note 4 (characterizing an invitation to appear as amicus as "a little-known and rarely available pathway that has launched the Supreme Court appellate careers of several former high court clerks" including "John Roberts Jr., now chief justice, and Maureen Mahoney, who heads the appellate and constitutional practice at Latham & Watkins").
209. See, e.g., Greenlaw v. United States, 554 U.S. 237, 250 (2008) ("This novel construction of § 3742, presented for the first time in the brief amicus filed in this Court, is clever and complex, but ultimately unpersuasive." (footnote omitted)).
210. 490 U.S. 435, 448-49 (1989).
211. 522 U.S. 93, 101-02 (1997).
212. Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252, 2272-73 (2009) (Roberts, C.J., dissenting).
213. Lyle Denniston, Digging Up a Discredited Precedent, SCOTUSblog (June 9, 2009), http://www.scotusblog.com/2009/06/digging-up-a-discredited-precedent.
214. Rubenstein, supra note 185, at 1867-68.
215. See Landsman, supra note 181, at 526.
216. See supra text accompanying notes 82-90.
217. See supra text accompanying notes 111-13.
218. See supra text accompanying notes 120-25.
219. See supra text accompanying notes 140-45.
220. Webster v. Reproductive Health Servs., 492 U.S. 490, 512 (1989).
221. Stephan Landsman, A Brief Survey of the Development of the Adversary System, 44 Ohio St. L.J. 713-738 (1983)
222. The element of party control of proceedings apparent in English procedure from the earliest times was also attractive to the intensely individualistic polity of the eighteenth and nineteenth centuries. The English and American judicial process made increasing allowances for each party to run his lawsuit as he saw fit, to voice his claims, and to select his evidence. The judicial decision was directly tied to the presentations of the parties. Clearly, these facts of procedure were particularly suited to an age preoccupied with the establishment of individual political and economic rights." (footnote omitted).
223. See infra Part III.B.2.
224. See, e.g., Louisville & Nashville R.R. v. Mottley, 211 U.S. 149, 152 (1908) ("[T]he court below was without jurisdiction of the cause. Neither party has questioned that jurisdiction, but it is the duty of this court to see to it that the jurisdiction of the Circuit Court, which is defined and limited by statute, is not exceeded. This duty we have frequently performed of our own motion.").
225. See Chemerinsky, supra note 28, at 292-301 (noting particular separation of powers concerns that arise when the government's autonomy is undermined in its role as a prosecutor).
226. Bob Jones Univ. v. United States, 461 U.S. 574, 595 (1983).
227. Frost, supra note 28, at 467, 506.
228. Cf. Model Rules of Prof'l Conduct R. 1.2 (2010) (scope of representation and allocation of authority between client and lawyer); id. R. 1.4 (communication); id. R. 1.6 (confidentiality of information); id. R. 1.7-.18 (conflicts of interest and other duties of loyalty).
229. See Keeton v. Hustler Magazine, Inc., 465 U.S. 770, 771 (1984) (Stephen M. Shapiro argued as amicus and filed an amicus brief for the Motor Vehicle Manufacturers Association); Verlinden B.V. v. Cent. Bank of Nigeria, 461 U.S. 480, 482 (1983) (Stephen N. Shulman argued as amicus and filed an amicus brief for the Republic of Guinea).
230. See Letter from Joel I. Klein to Francis J. Lorson, Chief Deputy Clerk, U.S. Supreme Court (Jan. 21, 1986) (on file with the Harry Blackmun Papers, Library of Congress) ("I made clear that I would consult but that I would not be [respondent's] counsel in this case [O'Connor v. Ortega]."); see also supra note 163 and accompanying text (describing cases in which respondent clients had directed counsel to cease further litigation).
231. See Fed. R. App. P. 31(c); see, e.g., In re Talbert, 344 F.3d 555, 557 (6th Cir. 2003).
232. See supra note 172 and accompanying text (discussing Pennsylvania v. Ritchie and United States v. Sharpe).
233. Molinaro v. New Jersey, 396 U.S. 365, 366 (1970) (per curiam). In Molinaro, the petitioner was a fugitive, so his direct appeal was dismissed. In these cases, the respondent is a fugitive, so while not disentitled to have his case heard, the same logic would suggest he is not entitled to the appointment of counsel of his choice.
234. See Vermont v. Cox, 481 U.S. 1012 (1987) (mem.); Pennsylvania v. Ritchie, 478 U.S. 1019 (1986) (mem.); United States v. Sharpe, 469 U.S. 809 (1984) (mem.);
235. see also Letter from Mark J. Kadish, Counsel for Respondent, to Alexander Stevas, Clerk, U.S. Supreme Court (May 11, 1984) (on file with the Harry Blackmun Papers, Library of Congress) ("[M]y professional and ethical obligations require that I confer with my client on proceedings before the Court, and if the Court takes action in this matter, I am foreclosed from consulting with my client at the present time."); Niddrie Sharpe Memorandum, supra note 172, at 2 ("[Counsel for Sharpe] may have an ethical duty to proceed-even without his clients.").
236. See supra note 163.
237. See Martinez v. Court of Appeal, 528 U.S. 152, 154 (2000).
238. O'Connor: Memorandum from Chief Justice Warren Burger to the Conference (Jan. 28, 1986) (on file with the Harry Blackmun Papers, Library of Congress) (noting that respondent's many demands regarding his involvement in the preparation of the briefs and delivery of oral argument had left his prospective counsel unwilling to represent him directly). Keeton: Letter from Larry C. Flynt to Justice Harry Blackmun, supra note 169 (invoking "the grand American tradition [of] allowing me to retain the counsel of my choice-namely me"). Kolender: Letter from Mark D. Rosenbaum to Alexander L. Stevas, supra note 168 (noting the "principle of the right of self-representation before this Court").
239. Landsman, supra note 181, at 491.
240. Fuller & Randall, supra note 186, at 1161.
241. Landsman, supra note 181, at 491.
242. See id. at 491 n.15 ("As a general matter it has been said that the more active the judge becomes the greater is the risk that he will abandon a neutral posture in the litigation.").
243. Rosenzweig, supra note 63, at 2080.
244. See supra Part II.A.
245. Aaron-Andrew P. Bruhl, The Supreme Court's Controversial GVRs-and an Alternative, 107 Mich. L. Rev. 711-734 fig.2 (2009).
246. See, e.g., Hohn v. United States, 524 U.S. 236, 240 (1998) ("The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature. It asked us to vacate the judgment and remand so the Court of Appeals could reconsider in light of this concession."); Brief for the United States, supra note 80, at 13-15 (concerning Pepper v. United States, 07-330); Brief for the United States, supra note 116, at 48 (concerning Greenlaw v. United States, No. 07-330); Brief for the United States, supra note 78, at 12 (concerning Bousley v. United States, No. 96-8516).
247. See, e.g., Brief for the Respondent in Opposition at 19, Kucana v. Holder, 129 S. Ct. 2075 (2009) (No. 08-911); Brief for the United States in Opposition at 16, Irizarry v. United States, 552 U.S. 1086 (2008) (No. 06-7517); Brief for the United States in Opposition at 13, Clay v. United States, 536 U.S. 957 (2002) (No. 01-1500).
248. See, e.g., Forney v. Apfel, 524 U.S. 266, 268 (1998) ("The Solicitor General suggested that we reverse the Ninth Circuit and remand the case so that it could hear Forney's appeal.").
249. To be sure, most denials of certiorari do not express any view on the merits of the question presented, but rather simply the view that the question presented is not one that the Court need resolve at that time, or that the case is a poor vehicle for examining the question.
250. Even denials following government confessions of error might not express agreement with the decision below; rather, they may result from the view that the confessed error was harmless in that case, and so the Court will wait for a future case in which the issue is presented and dispositive to evaluate the government's concern.
251. Mariscal v. United States, 449 U.S. 405, 406 (1981) (Rehnquist, J., dissenting); see also id. at 407 ("I harbor serious doubt that our adversary system of justice is well served by this Court's practice of routinely vacating judgments which the Solicitor General questions without any independent examination of the merits on our own.").
252. See, e.g., Lawrence v. Chater, 516 U.S. 163, 178-92 (1996) (Scalia, J., dissenting) (arguing GVR practice is inappropriate in response to federal agency's new interpretation of statute); Alvarado v. United States, 497 U.S. 543, 545-46 (1990) (Rehnquist, C.J., dissenting) (arguing GVR practice is inappropriate where the government concedes error in reasoning but deems it harmless); see also Wellons v. Hall, 130 S. Ct. 727, 732-33 (2010) (Scalia, J., dissenting); Webster v. Cooper, 130 S. Ct. 456, 456-57 (2009) (Scalia, J., dissenting); Youngblood v. West Virginia, 547 U.S. 867, 870-75 (2006) (Scalia, J., dissenting); Dep't of Interior v. South Dakota, 519 U.S. 919, 921 (1996) (Scalia, J., dissenting).
253. See, e.g., Bruhl, supra note 226, at 753-54; Rosenzweig, supra note 63, at 2095-101, 2111-14.
254. Sup. Ct. R. 10.
255. Margaret Meriwether Cordray & Richard Cordray, Setting the Social Agenda: Deciding to Review High-Profile Cases at the Supreme Court, 57 U. Kan. L. Rev. 313 (2009).
256. Judith Resnik, Managerial Judges, 96 Harv. L. Rev. 374 (1982).
257. Memorandum from Emily Buss, Law Clerk, U.S. Supreme Court, to Justice Harry Blackmun (Nov. 21, 1987) (on file with the Harry Blackmun Papers, Library of Congress) (concerning Vermont v. Cox, No. 86-1108).
258. See Justice William Brennan, Draft Opinion in Vermont v. Cox (Nov. 17, 1987) (on file with the Harry Blackmun Papers, Library of Congress).
259. See Justice William Brennan, Draft Opinion in Vermont v. Cox (Nov. 13, 1987) (on file with the Harry Blackmun Papers, Library of Congress).
260. Vermont v. Cox, 484 U.S. 173 (1987) (per curiam); see also, e.g., Memorandum from Justice Harry Blackmun to the Conference (Nov. 23, 1987) (on file with the Harry Blackmun Papers, Library of Congress) ("It seems to me that we are spinning our wheels here in a case that, in its present posture, cannot be very important.... I hope we shall do all we can to get rid of the case now.").
261. United States v. Sharpe, 470 U.S. 675, 726 (1985) (Stevens, J., dissenting); see also infra notes 317-21 and accompanying text.
262. See, e.g., Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 2 n.2 (Jan. 21, 1982) (on file with the Harry Blackmun Papers, Library of Congress) (suggesting the case be vacated and remanded for consideration of mootness). But see Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 3 (Feb. 26, 1982) (on file with the Harry Blackmun Papers, Library of Congress) (suggesting the case was no longer moot).
263. U.S. Const. art. III, § 2.
264. Flast v. Cohen, 392 U.S. 83, 95 (1968).
265. Lea Brilmayer, The Jurisprudence of Article III: Perspectives on the "Case or Controversy" Requirement, 93 Harv. L. Rev. 297-310 (1979) ("[O]ne of the best explanations of the case or controversy requirement may be the desire of courts to ensure the accountability of representatives. The case or controversy requirement guarantees that the individuals most affected by the challenged activity will have a role in the challenge. This guarantee should be seen as a minimal element of the legitimacy of a legal system which imposes legal burdens upon its members.").
266. Cf. Chemerinsky, supra note 182, § 2.1, at 46 ("Because federal courts have limited ability to conduct independent investigations, they must depend on the parties to fully present all relevant information to them. It is thought that adverse parties, with a stake in the outcome of the litigation, will perform this task best. Many of the justiciability doctrines exist to ensure concrete controversies and adverse litigants.").
267. See, e.g., Lawrence Lessig, Fidelity and Constraint, 65 Fordham L. Rev. 1365, 1384 (1997) ("[F]or the Court to display [a] political choice is costly. It is institutionally costly for the Court because (1) it makes the Court seem less like what we consider to be a Court (executing the commands of others) and more like a policy maker (choosing what policy to make), and (2) the social meaning of this subjectivity is negative for a court within our political tradition. All things being equal, a rule that reveals a political choice is a worse rule than a rule that does not. There is a pressure to select rules that don't reveal this political choice.").
268. Massachusetts v. EPA, 549 U.S. 497, 548 (2007) (Roberts, C.J., dissenting).
269. See Flast, 392 U.S. at 96.
270. See 2 U.S. (2 Dall.) 409 (1792).
271. Richard H. Fallon, et al., Hart & Wechsler's The Federal Courts and the Federal System 50-51 (6th ed. 2009) (reproducing correspondence between Secretary of State Thomas Jefferson and the Supreme Court);
272. Felix Frankfurter, A Note on Advisory Opinions, 37 Harv. L. Rev. 1002 (1924).
273. Wright et al., supra note 27, § 3529.1 (3d ed. 2008) (footnotes omitted) (collecting cases).
274. See, e.g., Frankfurter, supra note 251, at 1005-07.
275. See, e.g., Pottawattamie Cnty. v. McGhee, 130 S. Ct. 1047 (2010) (mem.) (dismissing writ of certiorari upon settlement).
276. See, e.g., Kremens v. Bartley, 431 U.S. 119 (1977) (holding that the repeal of the statutes challenged as unconstitutional rendered the case moot). There are established exceptions to the mootness doctrine, however, for cases in which the defendant voluntarily ceases its challenged conduct but there is some "reasonable expectation" that the conduct will be resumed. See, e.g., United States v. W.T. Grant Co., 345 U.S. 629, 632-33 (1953) (maintaining jurisdiction because the "defendant [was] free to return to his old ways").
277. See supra notes 73-77 and accompanying text.
278. See supra notes 78-79 and accompanying text.
279. See United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950).
280. Brief for the United States, supra note 78, at 12.
281. Drew S. Days, The Solicitor General and the American Legal Ideal, 49 S.M.U. L. Rev. 73-79 (1995) (quoting Archibald Cox, The Government in the Supreme Court, 44 Chi. B. Rec. 221, 225 (1963)).
282. See Mariscal v. United States, 449 U.S. 405, 406-07 (1981) (Rehnquist, J., dissenting).
283. Id.
284. See Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792).
285. See Brief for the United States, supra note 80, at 13-15.
286. See, e.g., 18 U.S.C. § 3553 (2006); Fed. R. Crim. P. 32; Mistretta v. United States, 488 U.S. 361, 363 (1989) ("For almost a century, the Federal Government employed in criminal cases a system of indeterminate sentencing. Statutes specified the penalties for crimes but nearly always gave the sentencing judge wide discretion to decide whether the offender should be incarcerated and for how long, whether restraint, such as probation, should be imposed instead of imprisonment or fine.").
287. See e.g., Gall v. United States, 552 U.S. 38, 49-50 (2007).
288. See United States v. Pepper, 570 F.3d 958, 965 (8th Cir. 2009) (citing United States v. Jenners, 473 F.3d 894, 899 (8th Cir. 2007)), cert. granted, 130 S. Ct. 3449 (2010) (No. 09-6822).
289. United States v. Sims, 174 F.3d 911, 912 (8th Cir. 1999).
290. Oral argument had not yet taken place in Bond v. United States at the time this Note went to press.
291. See infra text accompanying notes 279-83.
292. Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 2 (Jan. 14, 1982) (on file with the Harry Blackmun Papers, Library of Congress); see also Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 2 n.2 (Jan. 21, 1982) (on file with the Harry Blackmun Papers, Library of Congress) ("[B]ecause the SG has moved to dismiss, the Court may have no alternative but to vacate and remand to the CA 4 for consideration of mootness.").
293. See Memorandum from Joe Caldwell, supra note 271, at 2.
294. See Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 2-3 (Feb. 25, 1982) (on file with the Harry Blackmun Papers, Library of Congress); see also Wright v. Regan, 656 F.2d 820 (D.C. Cir. 1981), rev'd sub nom. Allen v. Wright, 468 U.S. 737 (1984).
295. Memorandum from Joe Caldwell, supra note 86, at 2; see Note from Kit Kinports to Justice Harry Blackmun (Mar. 17, 1982) ("I continue to believe that these cases should be [dismissed as improvidently granted]."), handwritten on Memorandum from Joe Caldwell, Legal Officer, U.S. Supreme Court 2 (Mar. 17, 1982) (on file with the Harry Blackmun Papers, Library of Congress).
296. Memorandum from Joe Caldwell, supra note 87, at 2.
297. See supra note 88 and accompanying text.
298. See Allen, 468 U.S. 737.
299. See, e.g., United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 298 (1972) (noting that both the district court and the real party in interest appeared to defend the lower court's actions).
300. See, e.g., Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 278 (1977).
301. Cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998) ("Hypothetical jurisdiction produces nothing more than a hypothetical judgment-which comes to the same thing as an advisory opinion.").
302. See supra Part II.B.1.
303. See, e.g., In re Smith & Wesson, 757 F.2d 431, 435 (1st Cir. 1985) (issuing mandamus to compel the district court to take jurisdiction of a case it had dismissed for want of jurisdiction).
304. Docket Sheet, Cheng Fan Kwok v. INS, 392 U.S. 206 (1968) (No. 638) (on file with the Earl Warren Papers, Library of Congress).
305. Spector Motor Serv., Inc. v. McLaughlin, 323 U.S. 101, 105 (1944).
306. See, e.g., Mapp v. Ohio, 367 U.S. 643, 645-46 & n.3 (1961) (overruling a prior case and holding that the Fourteenth Amendment does impose the exclusionary rule upon the states, even though neither the defendant nor Ohio asked the Court to reach this issue).
307. See supra notes 118-25 and accompanying text.
308. See supra notes 118-19 and accompanying text.
309. Bizarrely, the Seventh Circuit acknowledged that the government had waived its defense, but then faulted Clay for having waived his objection of waiver after he did not immediately respond to the court's introducing the timeliness issue sua sponte. See Clay v. United States, 30 Fed. App'x 607, 608 n.1 (7th Cir. 2002).
310. Cf. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 72-73 (1983) ("Because of the position that the University has taken irrespective of the outcome of this lawsuit, we conclude that the case is moot and that the Court of Appeals had no jurisdiction to decide it. Accordingly, we grant the petition for a writ of certiorari, vacate the judgment of the Court of Appeals for the Fifth Circuit, and remand to that court for entry of an appropriate order directing the District Court to dismiss the action as moot.").
311. See supra notes 120-25 and accompanying text.
312. Chemerinsky, supra note 28, at 292.
313. See United States v. Dickerson, 166 F.3d 667, 671-72 (4th Cir. 1999), rev'd, 530 U.S. 428 (2000).
314. 508 U.S. 439 (1993).
315. Dickerson, 166 F.3d at 672.
316. See Indep. Ins. Agents of Am., Inc. v. Clarke, 955 F.2d 731 (D.C. Cir. 1992), rev'd sub nom. U.S. Nat'l Bank of Ore. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439 (1993) (holding that the statute was still in force, but that the circuit court was right to raise this issue itself).
317. See U.S. Nat'l Bank, 508 U.S. at 446-47 ("'The judicial Power' extends to cases 'arising under... the Laws of the United States,' and a court properly asked to construe a law has the constitutional power to determine whether the law exists. The contrary conclusion would permit litigants, by agreeing on the legal issue presented, to extract the opinion of a court on hypothetical Acts of Congress or dubious constitutional principles, an opinion that would be difficult to characterize as anything but advisory." (omission in original) (internal citations omitted)).
318. Dickerson, 166 F.3d at 671.
319. See supra Part II.B.2.b.
320. See supra notes 134-37 and accompanying text.
321. Memorandum from Chief Justice Warren Burger to the Conference, supra note 136.
322. See supra notes 130-33 and accompanying text.
323. See supra notes 140-45 and accompanying text.
324. See supra notes 146-50 and accompanying text.
325. Cf. Webster v. Reproductive Health Servs., 492 U.S. 490, 512-16 (1989) ("Plaintiffs are masters of their complaints and remain so at the appellate stage of a litigation.").
326. Indeed, Chief Justice Rehnquist proposed "an additional exception" to the doctrine of mootness specifically "for those cases where the events which render the case moot have supervened since our grant of certiorari or noting of probable jurisdiction in the case," in view of the "unique resources-the time spent preparing to decide the case by reading briefs, hearing oral argument, and conferring" that the Court expends once it has granted certiorari. Honig v. Doe, 484 U.S. 305, 331-32 (1988) (Rehnquist, C.J., concurring). Nothing in Article III appears to support the position that the Supreme Court may render what amount to advisory opinions for the sake of judicial economy.
327. See, e.g., Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997).
328. See Fed. R. Civ. P. 55.
329. H.F. Livermore Corp. v. Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir. 1970).
330. 10A Wright et al., supra note 27, § 2681 (3d ed. 1998).
331. See, e.g., In re Talbert, 344 F.3d 555, 557 (6th Cir. 2003) ("Neither the Federal Rules of Appellate Procedure nor our local rules suggest that an appellee's failure to file a brief should be penalized by a decision in favor of the appellant. Instead, Fed. R. App. P. 31(c) provides in such a case that 'the appellee will not be heard at oral argument except by permission of the court.'... While Rule 31(c) also authorizes us to dismiss the appeal where the appellant fails to file a brief to support his burden of persuasion, we believe that an appellee's failure to file a brief should normally carry with it only the oral argument sanction called for by the Rule." (internal citations omitted) (quoting Allgeier v. United States, 909 F.2d 869, 871 n.3 (6th Cir. 1990)).
332. See supra notes 30-33 and accompanying text.
333. See, e.g., Letter from Victor L. Baltzell, Jr. to Alexander L. Stevas, supra note 156 (informing the Court that his client, the respondent in Brown v. Hartlage, No. 80-1285, "hopes that his failure to file a brief will not be interpreted as an abandonment of his steadfast opposition to the relief sought by the Petitioner" and that "Mr. Hartlage is confident that the entire record before the Court discloses adequate basis for both the affirmance of the state court decisions and the denial of the relief sought by the Petitioner").
334. In United States v. 12 200-Ft. Reels of Super 8mm. Film, 413 U.S. 123 (1973), for example, the claimant-respondent would have been entitled to collect his pornographic films had the Court affirmed, notwithstanding the fact that he had refrained from appearing in the Court. See supra note 158 and accompanying text.
335. See supra note 172 and accompanying text.
336. See Letter from Mark J. Kadish to Alexander Stevas, supra note 216.
337. United States v. Sharpe, 470 U.S. 675, 681 n.2 (1985).
338. Id. at 722 (Stevens, J., dissenting) (quoting Smith v. United States, 94 U.S. 97, 97 (1876)).
339. Id. at 724.
340. Id. at 724-25.
341. Id. at 725.
342. Id. at 726 (citing Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792)).
343. See Memorandum from Justice John Paul Stevens to the Conference (July 1, 1986) (on file with the Harry Blackmun Papers, Library of Congress) (suggesting that Pennsylvania v. Ritchie, No. 85-1347, be vacated and remanded); Memorandum from Justice William H. Rehnquist to the Conference (July 1, 1986) (on file with the Harry Blackmun Papers, Library of Congress) (disagreeing with Justice Stevens's proposal and citing Sharpe, where "John advanced the same argument in dissent, and the majority rejected it").
344. Those cases were Harris, Bonito Boats, Fausto, O'Connor, Kokoszka, and Daniel.
345. Those cases were Mackey, Thigpen, Keeton, Verlinden, Brown, Flair Builders, and Stidger.
346. Those cases were Halper, Kolender, 12 200-Ft. Reels of Super 8mm. Film, Gomez, and Cores.
347. But perhaps not. In a recent case that is rather similar to an invited amicus case, the Court appeared to reach out to keep alive a case that was mooted by private respondents' confession of error. In Pacific Bell Telephone Co. v. Linkline Communications, Inc., the respondents, originally the plaintiffs, had prevailed in the lower courts on an antitrust claim against the petitioner. 129 S. Ct. 1109, 1116 (2009).
348. The circuit court's decision conflicted with the decisions of other courts of appeals, so the Court granted certiorari. See id. at 1116-17. After certiorari was granted, however, the respondents abandoned their theory of the case, which they agreed was incorrect, and sought leave to amend their complaint to advance a different theory. See id. at 1117. They acknowledged that they were mooting the case, and thus asked that the judgment in their favor be vacated. See id. The Court declined to dismiss the appeal as moot and vacate the decision below, however, and instead it reached the merits and reversed, thus resolving against respondents a legal issue they no longer asserted, and setting national precedent in the process.
349. The Court decided to reach the merits because, first, it had some doubt as to whether respondents' change of position was absolute (notwithstanding their request that the judgment in their favor be vacated), second, "the parties have invested a substantial amount of time, effort, and resources in briefing and arguing the merits of this case," and third, an amicus that had submitted a brief supporting the respondents' original position was granted leave to participate in oral argument. Id. Because the amicus was not formally invited to support the judgment below, Pacific Bell Telephone is not included in the primary set of cases examined by this Note.
350. For all practical purposes, however, the amicus that was permitted to argue played that role. As such, the Court's reliance on an amicus to maintain the appearance of a live controversy was error. The Court denied the plaintiffs-respondents the right to remain masters of their complaint, instead seizing control of their suit to issue a ruling on the merits on a question that the parties no longer contested. Concurring, four Justices would have accepted the confession of error, and accordingly vacated the judgment below and remanded, rather than "try... to answer these hypothetical questions here" on the merits. Id. at 1124 (Breyer, J., concurring in the judgment). The concurrence's position better respected the case or controversy limitation on the Court's power.
351. As noted above, some of these invitations were probably not imprudent because they arose on direct appeal (signaled with a) or because the respondent initially appeared to oppose certiorari (signaled with a). See supra notes 324-25 and accompanying text. The others were either not justified because the cases were moot or because it was imprudent to grant certiorari in a case in which it was known that the respondent would not participate.