The Sineneng-Smith Doctrine

Abstract

United States v. Sineneng-Smith, 140 S. Ct. 1575 (2020), had the potential to be a landmark First Amendment decision. By that standard, it was a dud. Rather than engage in the complex free speech question presented, the Court vacated the Ninth Circuit’s decision for violating the “party presentation principle,” which teaches that the parties, not the courts, get to choose which issues a court will decide. The Court’s short opinion in Sineneng-Smith is deceivingly simple. It raises far more questions than it answers — questions that cut to the heart of the powers of the federal courts. While the Supreme Court has long lauded the merits of the party presentation principle, never before had it or any federal court vacated a lower court decision for violating that principle. Despite this novel basis for vacatur, however, the Court didn’t explain the contours of or justify its decision to create an enforceable party presentation principle — what this Article calls the “Sineneng-Smith doctrine.” Specifically, just how broad is the scope of the doctrine? And where do the federal courts get the power to enforce party presentation in the first place? The Article explores possible answers to these questions so as to further a more coherent and consistently applied doctrine going forward. It catalogues possible ways that lower courts might understand the scope of the Sineneng-Smith doctrine and surveys some possible constitutional justifications for an enforceable party presentation principle. The Article concludes that, while the Supreme Court might have the power to promulgate and enforce the Sineneng-Smith doctrine, it would do well to provide some clarification as to the doctrine’s scope and origins in the years to come.