Sometimes the Supreme Court reaches out to decide issues not raised in the petition for certiorari. It is a rare occurrence. But it happened in Turner v. Rogers, No. 10-10.

If you weren’t following the case, here are the facts:

Michael D. Turner racked up large debts owed to his child’s mother and the state for child support payments. When he stopped making payments, a hearing was held to decide whether Mr. Turner had willfully violated the child support order. At the hearing Turner claimed, without the assistance of counsel, that he was unable to pay—a defense authorized under state law. The judge believed otherwise and sentenced Turner to one-year in jail.

An attorney took Turner’s case on a pro bono basis and argued that due process requires the appointment of counsel in civil contempt proceedings for indigent litigants facing incarceration. The South Carolina Supreme Court rejected that argument, holding that the right to counsel only applies in the criminal context.

On Monday, the Court, in a majority opinion written by Justice Breyer, held that the Due Process Clause does not provide a categorical right to counsel for a person at a civil contempt proceeding, even if that person faces jail time. But the Court didn’t stop there. They also held that due process requires procedures, other than the right to counsel, when incarceration is a possibility. Because these procedures were not offered to Mr. Turner, the Court concluded that his due process rights were violated.

Justice Thomas filed a dissenting opinion agreeing that there is no due process categorical right to counsel. But he also took the majority to task for ruling that the “contempt hearing violated the Due Process Clause for an entirely different reason, which the parties have never raised.”

So who was right? Here is the question presented, according to Justice Breyer:

We must decide whether the Due Process Clause grants an indigent defendant, such as Turner, a right to state appointed counsel at a civil contempt proceeding, which may lead to his incarceration.

And the question pressed in the briefs and at oral arguments—by Seth Waxman of WilmerHale—was whether the Due Process Clause provided a categorical right to counsel in cases where a civil contempt proceeding could lead to incarceration.

Is that a different question than the one actually decided by Justice Breyer? Yes.

Although Justice Breyer addressed the categorical right to counsel issue, he and the majority, further ruled upon an argument pressed only by the Solicitor General’s office: that procedures such as notice and judicial findings are due.

As Justice Thomas sharply noted in dissent: “The only question raised in this case is whether the Due Process Clause of the Fourteenth Amendment creates a right to appointed counsel for all indigent defendants facing incarceration in civil contempt proceedings.”

So why does the Court generally refrain from reaching  issues not pressed by the parties? Well first, there is the unfairness to the opposing party when a petitioner is allowed to “switch gears.” Norfolk S. Ry. Co. v. Sorrell, 127 S. Ct. 799, 805 (2007). Also, by ruling on an issue not advocated by the parties, the Court subverts the certiorari process and deprives itself of “percolation” of the issues in lower courts. And such a move is contrary to the adversarial nature of American law.

That is why Justice Thomas said that “

[c]onsistent with this Court’s longstanding practice,” he would not reach the question addressed by Breyer and the majority.

I think Justice Thomas was right, mostly.

I think Justice Breyer was right, completely.

This was an instance where an exception to the rule was needed. By the time the petition had been filed, Turner had been incarcerated five times due to civil contempt procedures where he received no due process. It seems particularly cruel to leave the issue unresolved just so the Court can gain the benefit of lower court decisions on the issue. Also, the Court was fully briefed on the issue and Rogers had the opportunity to respond during briefing and oral argument. Additionally, it was not just any amicus party that raised the issue; it was the Solicitor General’s office. The Court treats the SG’s office differently—and with good reason. Because the SG’s office is a repeat player in the Court, they are less likely to advocate extreme positions.

I think the Court rightly reached the issue even though it is not generally a wise move or a part of the Court’s “longstanding practice.” 

For more coverage of Turner, check out the Josh Blackman blog, SCOTUS Blog, Concurring Opinions, ACS blog, and The Atlantic.