Amici curiae often walk a tightrope between offering argument that is supplemental, but also sufficiently within the issues framed by the parties. That tightrope may be even narrower after the Supreme Court issued its decision in United States v. Sineneng-Smith, 140 S.Ct. 1575 (2020), which vacated an order by the Ninth Circuit for violating the party presentation rule.

Under the “party presentation rule,” federal courts are discouraged from considering legal arguments and issues not raised by the parties. Federal courts “rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.”  Greenlaw v. United States, 554 U.S. 237, 243 (2008).

The United States Supreme Court recently ruled in Kindred Nursing Centers v. Clark that a Kentucky Supreme Court holding barring attorneys-in-fact from signing arbitration agreements on behalf of their principals because it infringed on their principal’s constitutional right to a trial by jury, was pre-empted by the Federal Arbitration Act (FAA). What is remarkable about the opinion authored by Justice Elena Kagan, is that it puts virtually the entire court (save for Justice Clarence Thomas who dissented and newly appointed Justice Neil Gorsuch who did not participate) on the same page in support of arbitration in a consumer action, here a health care case. Even AT & T Mobility LLC v. Concepcion (Concepcion), heavily relied upon in this decision, was decided on a 5-4 split with Justices Ginsburg, Breyer, Sotomayor and Kagan dissenting. Thus, Kindred Nursing Centers demonstrates how a majority of the Justices now broadly accepts the FAA’s pre-emption of “any state rule discriminating on its face against arbitration.” (Justice Thomas’ dissent was based solely on his belief that the FAA does not apply to state court actions.)