Back in February 2020, we discussed a case at the U.S. Supreme Court  involving a federal statute that makes it a crime to encourage or advise immigrants in the country to stay illegally.  The question, as it was presented to the Supreme Court, was whether the federal statute is unconstitutional because it tends to criminalize protected free speech.

On May 7, 2020, the U.S. Supreme Court issued a unanimous decision, concluding that the lower appeals court – the U.S. Court of Appeals for the Ninth Circuit – had impermissibly stepped in to shape the legal questions in the case.  The Supreme Court vacated the Ninth Circuit’s decision and sent the case back to the Ninth Circuit to consider the case as the parties had presented it, and not as the Ninth Circuit had redesigned the case.

The Supreme Court did not decide the question that the Ninth Circuit had crafted – whether the federal statute unconstitutionally restricts free speech.  The Supreme Court did not decide that question because it concluded that the Ninth Circuit abused its discretion by crafting the question and then answering it.

The attorneys representing the criminal defendant, Evelyn Sineneng-Smith, had presented arguments to the Ninth Circuit that Sineneng-Smith was not guilty of the crime under the federal statute.  The Ninth Circuit decided to appoint three amicus groups, or “friends of the court,” to present arguments on a question that neither Sineneng-Smith’s lawyers nor the government had raised:  whether the federal statute is “overbroad” under the First Amendment.  The Ninth Circuit then issued an opinion stating that the federal statute is overbroad, and thus invalid because it violates the Constitution.

The U.S. Supreme Court concluded that the Ninth Circuit should not have made up its own legal question on the case.  Instead, the Ninth Circuit should have decided the legal questions that the lawyers for Sineneng-Smith and the government had presented.  The U.S. Supreme Court sent the case back to the Ninth Circuit for a do-over.