January’s criminal law arguments – and is “party presentation” morphing into a court-controlling rule?

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

After the month-long “winter break” in oral arguments, the justices return to the bench on Jan. 12 for only (around) seven hours of argument in nine cases. A single one of them is a significant criminal-law-related case: Wolford v. Lopez, to be argued on Jan. 20. Another two address the rights of trans persons, which as I previously noted in a comment about the court’s decision in United States v. Skrmetti raises potential criminal law issues in the future.

Meanwhile, in the recent denial of a stay regarding National Guard deployments (Trump v. Illinois on Dec. 23, 2025), two justices advanced a significant expansive view of the “party presentation principle” that I wrote about last month. Let’s address that first.

Brief background on Trump v. Illinois

In Trump v. Illinois, the court issued a short opinion (without an attributed author) ruling that “regular forces” in the National Guard deployment statute “likely refers to the regular forces of the United States military.” On that understanding, five justices agreed that the Trump administration had “not carried its burden to show” that the statute permits the president to federalize the National Guard on the facts presented. Justice Brett Kavanaugh concurred on a narrower ground, and Justice Neil Gorsuch briefly dissented and would have left “all the weighty questions” he perceived “for another case.” Justice Samuel Alito, however, joined by Justice Clarence Thomas, filed a lengthy dissent on multiple aspects of the case.

Of note: After the parties and amici had all filed briefs on a motion to stay the district court’s injunction against deployment, the justices independently directed the parties to file supplemental letter briefs on an issue that the district court had addressed but the parties’ initial briefs had not, that is, the meaning of “regular forces” in the statute. The court then decided the case based on, as noted above, their view of that statutory term.

Is “party presentation” morphing into a dispositive rule?

For my purposes today, the merits of troop deployment addressed in Trump v. Illinois – let’s call it Illinois for simplicity? – are not relevant. Rather, I raise the question of whether a preferred judicial principle of “party presentation” – that is, generally restricting judicial action to arguments that the parties themselves present, rather than injecting new ones, while also reserving a judicial power to intervene to prevent a “miscarriage of justice” – is slowly morphing into a Supreme-Court-endorsed “rule.” In the past, as many scholars have recognized, courts have reserved authority to address meaningful issues that the lawyers have missed. As I argue, the current court’s failure to address the idea of a “principle” with exceptions, rather than a flatly dispositive “rule,” has troubling implications. (For a longer discussion of the “party presentation principle” itself, which includes references and hyperlinks to a number of excellent sources on the idea and its long-established exceptions, see my earlier column.)

Specifically, in his Illinois dissent, Alito (joined by Thomas) complained that “the Court has unnecessarily and unwisely departed from” the “standard practice” of party presentation, having “raised an argument” that they say Illinois and the city of Chicago did not make “below.” (Alito says they “waived” it, a highly debatable view – apparently six justices did not agree.) Alito cited as precedent the summary reversal in Clark v Sweeney issued a month earlier – the very same little-noticed opinion I criticized last month as lacking statutory or constitutional support – quoting its assertion that “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” Alito now objected that the majority had failed to “abid[e] by the standard rule on party presentation” (emphasis added). Thus, in his view, a month-old summary opinion which itself failed to cite any statutory or constitutional support should be precedent for a “rule” that binds the justices themselves.

This view would be a remarkable shift in the Supreme Court’s practice. For example, how often has the court re-written the parties’ Question Presented, sought re-argument on new questions, or even decided a case on grounds not presented at oral argument? Brown v. Board of Education, Erie Railroad Co. v. Tompkins, and Mapp v. Ohio come quickly to my mind; undoubtedly there are many other instances. As much as some might want to believe in the genius of lawyering, the reality is that the best arguments often take time to mature, particularly as trial records, and public facts and perceptions develop. They evolve beyond immediately perceived boundaries through the efforts of multiple talented lawyers, and judges, over time. To rule that the justices may never pursue new answers to important legal questions would therefore be a sea change – not to mention a disrespectful undermining of the third branch.

Moreover, while a general application of “party presentation” limits is understandable, Alito himself has previously noted (in a context in which his ideological predilections were not well served) that courts “may make exceptions.” Specifically, when Justice Ruth Bader Ginsburg applied the principle on behalf of a criminal defendant, Michael Greenlaw, Alito dissented, endorsing the court of appeals’ decision, on its own initiative, to increase Greenlaw’s sentence despite no one arguing for it.

It’s worth quoting from Alito’s opinion:

[Party presentation] should generally be followed. But just as the courts have made [that principle], the courts may make exceptions … I do not understand why a reviewing court should enjoy less discretion to correct an error sua sponte than it enjoys to raise and address an argument sua sponte.  Absent congressional direction to the contrary, and subject to our limited oversight as a supervisory court, we should entrust the decision to initiate error correction to the sound discretion of the courts of appeals.

In other words, following only the arguments of the parties usually makes sense. But that is a court-made principle, and exceptions should also be acknowledged. “Party presentation” as a principle for judicial decision-making is a preference, not a rule. Not for the Supreme Court, and not for judges at any level. 

This is important because lawyers may sometimes be (shocking to admit, I know) untalented. It is the same with judges. Both can miss issues or make bad decisions of omission as well as commission. Additionally, legal resources on one side may sometimes far out-balance the other, leaving fruitful legal avenues unexplored or undeveloped. Counsels’ failure to make an argument is not always strategic; sometimes it’s just a miss. Meanwhile, judges have a responsibility, to the public and to the law, to see that “justice is done,” and must have the authority to explore apparent errors or potential injustices. My hope is that the Supreme Court is not silently creating a new “rule” (and one that it may not even have “supervisory authority” to fashion, a question that then-law professor Amy Coney Barrett explored back in 2006)).

To sum it up: Clark v. Sweeney applied the principle of party presentation without analysis as dispositive to reverse the U.S. Court of Appeals for the 4th Circuit. Now in Illinois two justices have urged that it be a dispositive limit on the Supreme Court itself. Neither opinion explained why that should be so. Such analysis is, at a minimum, required before a preferred principle becomes a “rule.”

Upcoming January “criminal law and related” arguments

Much media attention will focus on civil cases set for argument this month, including the two cases involving trans athletes mentioned below. But a less-noticed Second Amendment case will likely surface stark disagreements among the justices on methods of constitutional interpretation.

Wolford v. Lopez, scheduled for argument on Tuesday, Jan. 20, addresses a ruling from the U.S. Court of Appeals for the 9th Circuit upholding a gun control law. Hawaii law prohibits gun owners from carrying a handgun on private property unless they have received “express authorization” from the property owner or manager, even if they have a license to carry a concealed weapon under state law. Many commonly visited private properties are open to the public, such as gas stations, restaurants, stores, libraries, and amusement parks. The petitioners argue that the law effectively makes it “impossible” to enjoy their constitutional right to bear arms.  Hawaii responds that the law fairly protects property owners’ equally fundamental “right to exclude.” Two questions are presented in the petition for review: (1) whether the Hawaii law is constitutional, and (2) whether the 9th Circuit’s reliance on post-Reconstruction history and practice is consistent with the “history and tradition” test of 2022’s New York State Rifle and Pistol Association v. Bruen.

Two years after Bruen, the justices expressed significant disagreements about the “history and tradition” method of constitutional analysis in the  Second Amendment case of United States v. Rahimi, writing seven separate opinions. So I expect a spirited oral argument on a relatively high theoretical level. But I will leave it to others to predict the result.

West Virginia v. B.P.J. and Little [no relation] v. Hecox, are scheduled for oral argument on Tuesday, Jan. 13. These two cases address state laws that separate student sports teams by gender, identified by biological sex determined at birth, and whether such laws violate Title IX of the Education Amendments of 1972 and the equal protection clause of the Fourteenth Amendment. (As I noted back in August about Skrmetti, a Supreme Court endorsement of governmental discrimination against trans individuals can have criminal implications depending on how far states take the idea.)

In the Little case, after the court granted review Lindsay Hecox voluntarily dismissed her underlying case with prejudice. She then filed a suggestion that her Supreme Court case be dismissed as moot, arguing that her personal controversy is no longer active and cannot recur due to the “with prejudice” proviso. The court has deferred decision on that motion until the oral argument; it raises important questions regarding the manipulation of legal proceedings that will occupy, I think, most of the hour-long argument. So expect the bulk of the fireworks about transgender athletes to be reserved for the second hour on the morning of Jan. 13.

In that second hour, in B.P.J., the justices will be asked to decide various questions left open by the majority opinion in last term’s Skrmetti decision. There, the majority ruled that a Tennessee law banning some forms of medical treatment for transgender minors did not classify based on transgender status – a conclusion that Alito acknowledged he was “uneasy with.” For that reason, the majority did not decide whether transgender persons should be treated as a “suspect class” (a legal term describing groups who should receive heightened judicial attention), or if they are, how that should be analyzed under the equal protection clause of the Fourteenth Amendment. Barrett’s concurring opinion in Skrmetti expressly noted that the issue of transgender athletes was coming – she is increasingly, I think, a strong force in the justices’ private conferences. I would thus expect her active participation at the Jan. 13 oral argument – but given her still junior status on the court the voices of other justices are also likely to be loud (if not louder). 

I anticipate some rapid talking-over and interruptions from the bench on this controversial issue, which has many, many nuances that other experts (much maligned in Thomas’ Skrmetti concurrence) are bound to discuss.