In the very recent Supreme Court decision, Trump v. Illinois, disallowing the federalizing of the national guard to deploy in Illinois, Trump v. Illinois, a dissenting Justice Alito writes, “If a party passes up what seems to us a promising argument, we do not assume the role of advocate,” Justice Samuel A. Alito Jr. wrote in the first paragraph of his 16-page dissent, which was joined by Justice Clarence Thomas. “Instead, we normally decide the questions that the parties choose to present.”
Justice Alito’s gripe is that the court analyzed 10 U.S.C. §12406(3), the statute that allows a president to nationalize the nation guard, and found it did not permit federalization because of the meaning of a phrase, “Unable with the regular forces to execute the laws of the United States,” means unable with federal troops to execute the laws of the United States, which was not the case in Illinois. However, the argument was not raised by the parties to the dispute and should be considered waived. He proposes that the Supreme Court should ignore the invalidity of the statute central to a president’s right to federalize a state national guard (state militia) because the parties did not raise it, though it did raise other concerns about the applicability of a statute.
The majority in Trump v. Illinois did not discuss this complaint and in its decision made it seem that the issue of “the regular forces” was properly before it. The Supreme Court had requested briefing on the issue, which to Justice Alito was the Court’s issue spotting for the plaintiffs, Illinois.
The majority’s action is not a departure from normal practice. While it is true that our system is based on the principle of party presentation, the principle does not rely on the parties laying out the contours of all the arguments. Rather, a party can present an argument in general and, once the broad point is raised, nuance and variety within the broad point are a valid avenue for adjudication.
As an aside, the principle of party presentation is a monstrous concept. Suppose a person was on death row because of a crime because his attorney, the prosecutor, and the judge misapplied a statute that resulted in the execution order and after the error was detected, the courts were powerless to undo the mistake. Sometimes justice is a legal fiction.
A case in point is a Ninth Circuit Court of Appeals decision about good moral character and being a habitual drunkard. 8 USC § 1101(f)(1). In Ledesma-Cosino v. Trump, a panel decided that a statute stating that a habitual drunkard categorically lacked good moral character was a violation of the Constitution’s equal protection guarantee. A dissenter, Judge Richard Clifton, wrote, “The words “equal protection” did not appear in the opening brief filed on behalf of Petitioner Solomon Ledezma-Cosino. Given that, it is not surprising that they did not appear in the government’s answering brief, either. Ledezma did not file a reply brief. So how did the issue arise? The argument deemed persuasive in the majority opinion is an argument of the majority’s own creation. Ledezma did not make that argument until urged to do so by the majority at oral argument and via a subsequent order for upplemental briefing.
Mr. Ledesma-Cosino did raise arguments about the constitutionality of 8 USC § 1101(f)(1) though the arguments were about a violation of the Constitution’s due process guarantee which the court rejected. However, the broad point – the statute is unconstitutional – was raised and thus the varieties of constitutional of infirmity were validly before the court. Judge Clifton did not assert a violation of the principle of party presentation. Rather, an en banc court reversed the district court based on their disagreement about the equal protection arguments.
Judge Clifton’s pointed out that the government spotted the issue for the attorneys for Mr. Ledezma-Cosino by raising it at oral argument and by asking for supplemental briefing. He does not state that this was wrong, though it is unusual for someone to highlight an inoffensive procedural point. It is worthy of mention that there was another dissenter in Trump v. Illinois, Justice Gorsuch, whose entire opinion seems little more that issue spotting for President Trump. Since the case is still in its preliminary stage at the Supreme Court, spotting these issues is directly relevant to the case and not simply helpful in future litigation as he intimates.
A second aside, a practice pointer. With there being 3999 Roman numerals, don’t skimp on the weaker arguments. There are some brilliant jurists and clerks who look at your case. It may be lazy lawyering to raise an under-developed argument when your own judicial imagination fails, but the court may develop it for you. To me it is better to be uncreative and win than prideful and lose. Posted December 24, 2025.
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