The U.S. Supreme Court ruled unanimously last week against the improper use of amicus briefs by judges to shape a court case as they wish — which is what Judge Emmet G. Sullivan is doing, critics say, in the ongoing Michael Flynn case.
On Tuesday, Judge Sullivan announced that he would accept amicus briefs about whether he should grant the Department of Justice’s (DOJ) motion to dismiss the case against Flynn. On Wednesday, Sullivan went a step further, appointing retired judge John Gleeson as amicus curiae (“friend of the court”) to argue against dismissal, and to argue Flynn be held in criminal contempt.
(Gleeson had already expressed his views in an op-ed in the Washington Post on Monday, attacking the DOJ’s motion.)
But last week, in the case of U.S. v. Sineneng-Smith, the Supreme Court held that the Ninth Circuit acted improperly by appointing three amici and directing them to brief issues that the judges wanted to consider — but the litigants had not raised.
Justice Ruth Bader Ginsburg, writing for a unanimous Court, held:
In our adversarial system of adjudication, we follow the principle of party presentation … [O]ur system “is designed around the premise that [parties represented by competent counsel] know what is best for them, and are reponsible for advancing the facts and argument entitling them to relief.” Id., at 386 (Scalia, J., concurring in part and concurring in judgment).
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.
While such amicus briefs could be used in “extraordinary circumstances,” the Court’s list of examples did not include cases in which prosecutors simply dropped a case.
Sullivan has been criticized for inviting the intervention of amicus briefs. In a Wall Street Journal op-ed published Wednesday, for example, Harvard Law School professor emeritus Alan Dershowitz argued that judges are “umpires,” not “ringmasters”: “If the litigants come to an agreement, there is no controversy. The case is over. … Judge Sullivan should get back to the business of deciding actual controversies and get out of the business of producing political shows.”
Joel B. Pollak is Senior Editor-at-Large at Breitbart News and the host of Breitbart News Sunday on Sirius XM Patriot on Sunday evenings from 7 p.m. to 10 p.m. ET (4 p.m. to 7 p.m. PT). His new book, RED NOVEMBER, is available for pre-order. He is a winner of the 2018 Robert Novak Journalism Alumni Fellowship. Follow him on Twitter at @joelpollak.