Adam G. Ciongoli, the general counsel of a big insurance company, argued a case before the Supreme Court last week. But he was not representing his employer. Indeed, he was not representing any client at all.
Mr. Ciongoli was there because neither the prosecution nor the defense was willing to support a particularly harsh sentencing decision from the federal appeals court in St. Louis. The Supreme Court had appointed him to defend the decision because no one else would.
The court uses that odd procedure roughly every year or so. It is a great honor for the lawyer involved, but it raises questions about whether the court is engaged in a kind of judicial activism in shaping the case before it.
The adversary system generally allows the parties to decide which issues to present. And the Constitution says that federal courts should decide only actual cases and controversies.
I've spent some time around the law, but I'm no lawyer. But this heretofore-unknown-to-me practice does raise a question about the law, then: If the Supreme Court *actively appoints lawyers to argue cases that have nobody arguing them* how could it ever justify the dismissal of a case based on "standing"?
I ask this, because there's a theory floating around that the U.S. Court of Appeals will dismiss the Proposition 8 case for lack of standing -- the governor and attorney general of California won't defend the measure, so a private group has stepped forward to do so. The argument is that group, not being the state, lacks the standing to defend the measure. So the court could dismiss the case, letting Prop 8 be overturned in California -- but letting the Supreme Court avoid the thorny question of gay marriage rights in the Constitution.
Which might sound like a swell "half a baby" compromise to those interested in limiting judicial activism -- but again, if the Supreme Court can appoint people to argue the cases that (essentially) it wants to hear, wouldn't dismissal based on standing be more a political move than a legal one? What am I missing?