Buffalo Law Review

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Our adversarial system of adjudication is characterized by active parties and (relatively) passive judges; the parties identify the issues in dispute, and the judge decides those issues. Sua sponte decision-making—whereby a judge raises and decides new issues not presented by the parties—undermines this adversarial system. For decades, courts and commentators have struggled to explain when sua sponte decision-making may be appropriate. That issue was particularly important to the late Justice Ruth Bader Ginsburg, who has been described as “The Great Proceduralist.” In a series of oral arguments and opinions during her tenure on the Supreme Court, Justice Ginsburg repeatedly invoked the “principle of party presentation”—a term used in comparative procedure literature to describe the principle that the parties, not the judge, should determine the issues to be decided in a case—and identified real limits to judicial discretion in raising new issues. One of her last opinions, in United States v. Sineneng-Smith (2020), reaffirmed a robust principle of party presentation and rebuked a court of appeals that raised a new issue without sufficient justification, relegated the parties to a secondary role in the litigation, and ultimately disregarded the issues they presented. In Justice Ginsburg’s opinions, including Sineneng-Smith, litigants and judges alike may find useful guideposts that constrain judicial discretion in deciding whether to raise new issues sua sponte. Judges considering whether to raise a new issue sua sponte should determine whether they are required, forbidden, or permitted to do so; and where permitted, they should explain how specific institutional interests of the judiciary balance or outweigh the parties’ interest in controlling the litigation. If a judge wishes to depart from the principle of party presentation, the judge should explain the specific circumstances and the interests that make the case exceptional—something more than the judge’s having what he or she thinks is a “better” theory of the case.