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# January’s criminal law arguments – and is “party presentation” morphing into a court-controlling rule? **Source:** [SCOTUSblog](https://www.scotusblog.com/2026/01/januarys-criminal-law-arguments-and-is-party-presentation-morphing-into-a-court-controlling-rule/) **Author:** Rory Little **Published:** 2026-01-07 **Jurisdiction:** Federal - Supreme Court ## Summary - The article warns that the Supreme Court may be converting the traditional “party presentation” principle—limiting judicial action to issues raised by the parties—into a de facto rule, as illustrated by its proactive briefing order and decision in Trump v. Illinois. This potential shift could reshape how criminal and other cases are argued before the Court, requiring litigants to anticipate and raise every dispositive issue. - In Trump v. Illinois the Court ordered supplemental briefs on a statutory term the parties had not addressed, then decided the case on that interpretation, signaling heightened judicial intervention. - This conduct suggests an emerging rule that the Court will not consider issues absent from the record unless it specifically mandates briefing, narrowing the historical “party presentation” flexibility. - Criminal practitioners should treat this as a warning to file exhaustive briefs, especially in upcoming criminal arguments like Wolford v. Lopez, to avoid the Court introducing new issues. - The principle still reserves an exception for preventing a miscarriage of justice, but the boundary between permissible intervention and overreach remains ambiguous. - Monitoring future Court orders for supplemental briefing will be essential for both litigators and scholars to gauge the evolving scope of the party‑presentation doctrine. ## Content January’s criminal law arguments – and is “party presentation” morphing into a court-controlling rule? ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law. After the month-long “winter break” in oral arguments, the justices return to the bench on Jan. 12 for only (around) seven hours of argument in nine cases. A single one of them is a significant criminal-law-related case: Wolford v. Lopez, to be argued on Jan. 20. Another two address the rights of trans persons, which as I previously noted in a comment about the court’s decision in United States v. Skrmetti raises potential criminal law issues in the future. Meanwhile, in the recent denial of a stay regarding National Guard deployments (Trump v. Illinois on Dec. 23, 2025), two justices advanced a significant expansive view of the “party presentation principle” that I wrote about last month. Let’s address that first. Brief background on Trump v. Illinois In Trump v. Illinois, the court issued a short opinion (without an attributed author) ruling that “regular forces” in the National Guard deployment statute “likely refers to the regular forces of the United States military.” On that understanding, five justices agreed that the Trump administration had “not carried its burden to show” that the statute permits the president to federalize the National Guard on the facts presented. Justice Brett Kavanaugh concurred on a narrower ground, and Justice Neil Gorsuch briefly dissented and would have left “all the weighty questions” he perceived “for another case.” Justice Samuel Alito, however, joined by Justice Clarence Thomas, filed a lengthy dissent on multiple aspects of the case. Of note: After the parties and amici had all filed briefs on a motion to stay the district court’s injunction against deployment, the justices independently directed the parties to file supplemental letter briefs on an issue that the district court had addressed but the parties’ initial briefs had not, that is, the meaning of “regular forces” in the statute. The court then decided the case based on, as noted above, their view of that statutory term. Is “party presentation” morphing into a dispositive rule? For my purposes today, the merits of troop deployment addressed in Trump v. Illinois – let’s call it Illinois for simplicity? – are not relevant. Rather, I raise the question of whether a preferred judicial principle of “party presentation” – that is, generally restricting judicial action to arguments that the parties themselves present, rather than injecting new ones, while also reserving a judicial power to intervene to prevent a “miscarriage of justice” – is slowly morphing into a Supreme-Court-endorsed “rule.” In the past, as many scholars have recognized, courts have reserved authority to address meaningful issues that the lawyers have missed. As I argue, the current court’s failure to address the idea of a “principle” with exceptions, rather than a flatly dispositive “rule,” has troubling implications. (For a longer discussion of the “party presentation principle” itself, which includes references and hyperlinks to a number of excellent sources on the idea and its long-established exceptions, see my earlier column.) Specifically, in his Illinois dissent, Alito (joined by Thomas) complained that “the Court has unnecessarily and unwisely departed from” the “standard practice” of party presentation, having “raised an argument” that they say Illinois and the city of Chicago did not make “below.” (Alito says they “waived” it, a highly debatable view – apparently six justices did not agree.) Alito cited as precedent the summary reversal in Clark v Sweeney issued a month earlier – the very same little-noticed opinion I criticized last month as lacking statutory or constitutional support – quoting its assertion that “[i]n our adversarial system of adjudication, we follow the principle of party presentation.” Alito now objected that the majority had failed to “abid[e] by the standard rule on party presentation” (emphasis added). Thus, in his view, a month-old summary opinion which itself failed to cite any statutory or constitutional support should be precedent for a “rule” that binds the justices themselves. This view would be a remarkable shift in the Supreme Court’s practice. For example, how often has the court re-written the parties’ Question Presented, sought re-argument on new questions, or even decided a case on grounds not presented at oral argument? Brown v. Board of Education, Erie Railroad Co. v. Tompkins, and Mapp v. Ohio come quickly to my mind; undoubtedly there are many other instances. As much as some might want to believe in the genius of lawyering, the reality is that the best arguments often take time to mature, particularly as trial records, and public facts and perceptions develop. They evolve beyond immediately perceived boundaries through the efforts of multiple talented lawyers, and judges, over ti... --- *Legal Topics: constitutional, criminal, civil-procedure* *Difficulty: intermediate* *Via SCOTUSblog*