When SCOTUS Amends The Question Presented

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On Friday, December 14, the Supreme Court granted cert in Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission. That petition raised two questions:

1. Does a state violate the First Amendment’s Religion Clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior?

2. In addressing federal constitutional challenges, may state courts require proof of unconstitutionality “beyond a reasonable doubt?”

Today, the Court issued a subsequent order that amended the grant:

The order granting the petition for a writ of certiorari is amended as follows: The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.

This sort of amendment is not common, but it does happen. My quick research found several such orders in recent years. And in each case, the Court limited the questions presented, or rewrote the QP altogether:

  • Upon consideration of the motion to modify or amend the question presented, the question presented in these cases is amended as follows: Whether the State of Alabama’s 2021 redistricting plan for its seven seats in the United States House of Representatives violated section 2 of the Voting Rights Act, 52 U.S.C. § 10301. Merrill v. Caster, 142 S. Ct. 1357 (2022).
  • The order granting the petition for writ of certiorari is amended as follows: Petition for writ of certiorari is granted limited to Question 1 presented by the petition. Thacker v. Tennessee Valley Auth., 585 U.S. 1058 (2018).
  • The order noting probable jurisdiction is amended as follows: In this case probable jurisdiction is noted limited to Questions 1 and 2 presented by the statement as to jurisdiction. Harris v. Arizona Indep. Redistricting Comm’n, 576 U.S. 1083 (2015).
  • The order entered September 25, 2001, is amended as follows: “Motion for leave to proceed in forma pauperis granted. Petition for writ of certiorari granted limited to the following question: Whether the execution of mentally retarded individuals convicted of capital crimes violates the Eighth Amendment?” Atkins v. Virginia, 534 U.S. 809 (2001).
  • The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: “The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.” Olmstead v. L.C., 525 U.S. 1062(1998).
  • The order of December 14, 1998, granting the petition for a writ of certiorari is amended as follows: “The petition for a writ of certiorari is granted limited to Question 1 presented by the petition.” Olmstead v. L.C., 525 U.S. 1062, 119 S. Ct. 633, 142 L. Ed. 2d 571 (1998).
  • The order granting the petition for writ of certiorari is amended as follows: The petition for writ of certiorari is granted limited to the following question:
    Is interest earned on client trust funds held by lawyers in IOLTA accounts a property interest of the client or lawyer, cognizable under the Fifth Amendment of the United States Constitution, despite the fundamental precept of IOLTA that such funds, absent the IOLTA program, could earn interest for the client of lawyer Phillips v. Washington Legal Found., 521 U.S. 1117 (1997).

I found one order in which Justices Blackmun and Stevens dissented from amending the QP:

  • The order of December 16, 1991, granting the petition for a writ of certiorari, is amended as follows: The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted. In addition to the questions presented by the petition, the parties are requested to brief and argue the following question: In determining whether to grant a petition for a writ of habeas corpus by a person in custody pursuant to the judgment of a state court, should a federal court give deference to the state court’s application of law to the specific facts of the petitioner’s case or should it review the state court’s determination de novo ? Justice BLACKMUN and Justice STEVENS dissent. Wright v. West, 502 U.S. 1021 (1991).

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