104
Opinion of Scalia, J.
and are in utter agreement concerning the invalidity of the Vieau practice. The briefs starkly reflect this uniformity: Respondent's brief, in a mere 10 pages of argument, essentially incorporates by reference much of petitioners' brief, which in turn largely reflects Chief Judge Nies' dissent from the denial of en banc review below. Brief for Respondent 8-9. (Not surprisingly, petitioners did not bother to file a reply brief responding to their own echo.) Amici likewise all weighed in on the single side in this case, one of them even identifying its submission as "in support of petitioners & respondents." Brief for Federal Circuit Bar Association as Amicus Curiae. While this harmony is heartwarming and even (since it reduces the number and length of briefs) environmentally sound, it may encourage us to make bad law.
In the past, when faced with a complete lack of adversariness, we have appointed an amicus to argue the unrepresented side. See, e. g., Toibb v. Radloff, 501 U. S. 157, 160, n. 4 (1991); Bob Jones Univ. v. United States, 461 U. S. 574, 585, n. 9, 599, n. 24 (1983); Granville-Smith v. Granville-Smith, 349 U. S. 1, 4 (1955). Cf. INS v. Chadha, 462 U. S. 919, 939-940 (1983). The wisdom of that course is shown by Cheng Fan Kwok v. INS, 392 U. S. 206, 210 (1968). That case, like this one, involved a Court of Appeals' refusal to decide—the Third Circuit's determination that it lacked jurisdiction to review the INS's denial of petitioner's application for a stay of deportation. And in that case, as in this one, both parties agreed that the Court of Appeals should have decided the case. We appointed an amicus to defend the judgment below, id., at 210, n. 9, and ended up affirming the determination rejected by the parties.
I agree with the Court that the parties' total agreement as to disposition of this case poses no constitutional barrier to its resolution. Ante, at 88-89, n. 9. For prudential reasons, however, I would frame the resolution more narrowly. I can say with confidence that the question of the validity of
Page: Index Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 NextLast modified: October 4, 2007