Court Chooses Guardians for Orphaned Arguments

From the New York Times:

"Adam G. Ciongoli, the general counsel of a big insurance company, argued a case before the Supreme Court last week. But he was not representing his employer. Indeed, he was not representing any client at all.

Mr. Ciongoli was there because neither the prosecution nor the defense was willing to support a particularly harsh sentencing decision from the federal appeals court in St. Louis. The Supreme Court had appointed him to defend the decision because no one else would.

The court uses that odd procedure roughly every year or so. It is a great honor for the lawyer involved, but it raises questions about whether the court is engaged in a kind of judicial activism in shaping the case before it.

The adversary system generally allows the parties to decide which issues to present. And the Constitution says that federal courts should decide only actual cases and controversies.

In an article to be published in the Stanford Law Review in April, Brian P. Goldman analyzed the phenomenon of appointing lawyers to argue positions abandoned by the parties.

He found that the Supreme Court had named more than 40 lawyers to argue such positions, and he concluded that about a third of the appointments were problematic examples of “judicial agenda-setting” at the expense of “party autonomy.”

But Mr. Goldman said Mr. Ciongoli’s appointment was “not improper” because it concerned a point that the parties were not free to decide for themselves. The question in the case, Pepper v. United States, was whether judges who resentence defendants after an appellate reversal may take account of the defendants’ conduct in the meantime."