Clearly, Judge Emmet Sullivan doesn't read up on recent US Supreme Court decisions…
United States vs Sineneng-Smith (2020)
SCOTUS 9-0 opinion authored by RBG (of all Justices!) that stated the 9th Circuit can't invite and inject outside Amici into a case!
The Supreme Court today resolved United States v. Sineneng-Smith without reaching the merits of the underlying First Amendment question, instead holding that the U.S. Court of Appeals for the 9th Circuit improperly injected the issue into the case. The court sent the case back for reconsideration based on the claims of the parties. Evelyn Sineneng-Smith had been convicted of violating 8 U.S.C. § 1324(a)(1)(A)(4), which prohibits “inducing or encouraging” unauthorized immigration. She charged noncitizen clients substantial fees for filing paperwork that she falsely claimed could lead to lawful permanent resident status. After her appeal had been briefed and argued in the 9th Circuit on more prosaic issues, the panel requested briefing on whether the statute was unconstitutionally overbroad, an issue Sineneng-Smith had not raised. The order for additional briefing was addressed not to the parties but to specified amici curiae, or “friends of the court,” although the parties and other amici could also elect to participate. The panel ordered re-argument in which the amici would have 20 minutes, and Sineneng-Smith only 10. The 9th Circuit ultimately reversed the conviction because it found that the statute was overbroad, the ground that the court’s re-argument order had brought into the case. In an opinion by Justice Ruth Bader Ginsburg, a unanimous Supreme Court held today that “the panel’s takeover of the appeal” warranted reversal and remand for reconsideration in light of “the case shaped by the parties.”