request for help understanding Thomas' concurance in Troxell

Fri Feb 10 08:30:08 PST 2006

I have to disagree with Eugene's belief that Judges are rarely if ever
required to reach out beyond the parties' arguments.  For example, the
standard for summary judgement requires that the moving party be entitled to
judgment as a matter of law.  If the opponent's attorney misses a point, I
strongly believe that the judge is required to point it out and refuse
summary judgement until the moveant clears up that point.  Even more
emphatically, the Supreme Court does not take cases (generally at least)
unless they are expected to be important to many other potential litigants.
In that situation, accepting some (though not all) of the parties'
litigating assumptions may create major problems to many people.  I think
that Troxel may be such a case.

Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Thursday, February 09, 2006 8:30 PM
To: conlawprof at lists.ucla.edu
Subject: RE: request for help understanding Thomas' concurance in Troxell

    I wonder whether there might be two questions here:  (1)  When *may*
judges reach out beyond the parties' arguments?  (2)  When are judges
*obligated to* reach out beyond the parties' arguments?

    I don't know the answer to 1, and I'm not sure there is a clear
answer to it.  But I suspect that the answer to 2 is "quite rarely, if
ever," just as a matter of sound judicial administration.  If the
parties aren't arguing an issue, then there's probably little briefing
on it.  If it wasn't argued below, the lower court opinions won't be of
much help on it.  If it wasn't raised below, some relevant facts might
not have been developed at trial.  For all these reasons, it seems to me
hard to fault a judge for bypassing the issue, especially if he thinks
the issue is hard, and isn't confident of the right answer.  That's why
Thomas's position in Troxel struck me as so unobjectionable.

    Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of William Araiza
Sent: Thursday, February 09, 2006 5:27 PM
Cc: conlawprof at lists.ucla.edu
Subject: Re: request for help understanding Thomas' concurance in
Troxell

I'm curious about an issue that's implicit in Eugene's and others' posts
on this topic: namely, when a judge or justice should accept the
parties' litigating assumptions and when they should not.  I recall
having read a number of SCt opinions that do rely on what the parties
argue and what they don't -- such as Justice Thomas' opinions in Troxel
and American Trucking (the non-delegation case from 2001) -- but also at
least a few cases where a justice criticizes another's opinion as
reaching out to decide the issue on a theory not argued to the Court (I
think one of the concurrences in RAV attacked Justice Scalia's majority
opinion on that ground).  

Are there/should there be guideposts for when judges should be able to
reach out beyond the parties' arguments?  Malla's last post, if I
understand it, suggests that the answer turns in part on whether one
views the court system primarily as a vehicle for private dispute
resolution (rather than, I guess, enunciation of legal norms).  Are
there other criteria as well?  It seems to me an interesting question
and I'd love to hear what people have to say about it.

Bill Araiza
Loyola L.A.

Volokh, Eugene wrote:

	What exactly does it mean that Justice Thomas is "a believer in
state power"?  Like all Justices, he believes in state power on some
questions but not on others.  He has a broader view of state power on
certain issues than many of his colleagues do, and a narrower view on
other issues (e.g., some free speech questions, some property rights
questions, perhaps the right to bear arms, some jury trial questions,
and so on).  On this one issue, he might be leaning in favor of state
power, but may not have come to a firm conclusion (note especially his
flagging of the Privileges and Immunities Clause issue, something he
likely wouldn't have done if he was sure that no unenumerated family
rights exist.  Seems to me that it makes sense to accept, as many judges
often do, the parties' litigating assumptions, and decide the case in
light of those assumptions, rather than reaching out to resolve an issue
that he might be unprepared to resolve (and that wasn't briefed to him).

	Eugene

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu 
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Malla Pollack
Sent: Thursday, February 09, 2006 4:00 PM
To: 'Paul Horwitz'
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: request for help understanding Thomas' 
concurance in Troxell

My thanks to the several persons who took pity on me and 
answered off list; all echoed Pauls' point.  
	I guess I'm missing something basic, but I still have a 
problem. I do not understand why "the parties did not make 
the right argument" is enough to affirm a decision against 
state power by a believer in state power.  I would have no 
problem if he was willing to affirm a decision below that 
ok'd a state exercise of power.
    If he did not think the issue had been properly 
presented, he could have dissented on that basis -- saying 
cert should not have been granted. 

Malla Pollack
Professor, American Justice School of Law
Visiting Univ. of Idaho, College of Law
mpollack at uidaho.edu
208-885-2017

-----Original Message-----
From: Paul Horwitz [mailto:phorwitz at hotmail.com] 
Sent: Thursday, February 09, 2006 3:53 PM
To: mpollack at uidaho.edu
Cc: CONLAWPROF at lists.ucla.edu
Subject: RE: request for help understanding Thomas' 
concurance in Troxell

Whatever Thomas's feelings may be about the law in this area, 
I had thought 
Thomas was straightforward enough: he didn't feel the issue 
was properly 
presented for resolution in that case: "neither party has 
argued that our 
substantive due process cases were wrongly decided and that 
the original 
understanding of the Due Process Clause precludes judicial 
enforcement of 
unenumerated rights under that constitutional provision.  As 
a result, I 
express no view on the merits of this matter..."  Note that 
he doesn't 
expressly offer a view here as to whether fundamental rights 
exist under 
substantive due process, although he wears his heart on his 
sleeve a little;

and note that he also adds that "[t]his case also does not involve a 
challenge based upon the Privileges and Immunities Clause and 
thus does not 
present an opportunity to reevaluate the meaning of that Clause."

Paul Horwitz
Southwestern University School of Law
Los Angeles, CA

From: Malla Pollack <mpollack at uidaho.edu>
To: CONLAWPROF at lists.ucla.edu
Subject: request for help understanding Thomas' concurance in Troxell
Date: Thu, 09 Feb 2006 15:42:34 -0800

I am getting ready to teach a Con Law class for the first time on 
Troxell
v.
Granville, 530 US 57 (2000) (affirming state supreme court's 

killing of an

order forcing mother to allow visitation by grandparents) 

and would like

some help understanding Justice Thomas' concurrence.  The 

Court affirms the

state supreme court's reversal of a visitation order issued 

pursuant to a

statute allowing "anyone" to petition a family court for 

visitation. Thomas

says (i) unenumerated fundamental rights do not exist 

(including the one 

the
mother is relying on to kill  the visitation order), (ii) review of a
state's interference with fundamental rights should be 

strict scrutiny

;(iii) concur in affirmance.

   Since Thomas does not believe the mother has any harmed 

fundamental 

right, why is he concurring in the judgement? This is especially 
confusing (at least to me) because this is a concurrence limiting a 
state's power.

Malla Pollack

Professor, American Justice School of Law

Visiting Univ. of Idaho, College of Law

mpollack at uidaho.edu

208-885-2017

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-- 
Bill Araiza
Associate Dean for Faculty and Professor of Law
Loyola Law School, Los Angeles
Loyola Marymount University
919 Albany St.
Los Angeles CA 90015
213-736-8167 (voice)
213-380-3769 (fax)
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