The Supreme Court sometimes adheres to what it now calls the “party presentation principle”—terminology that dates back to 2008. Although judicial articulations of the principle have been inconsistent and imprecise, the gist is the familiar notion that courts should resolve cases on the basis of the issues and reasons presented by the parties to the dispute. Conversely, questions not properly raised by the parties should be avoided by the Court. Thus, the Court has on several occasions declined to address arguments outside the scope of the questions raised by the parties in their petition for certiorari.
Does the party presentation principle create problems for constitutional originalism? And if so, what should originalist judges do when the parties fail to present arguments and evidence relevant to the original meaning of the constitutional text? These questions are important. The issues raised by the party presentation principle are complex; answering these questions and addressing these issues reveals the party presentation principle to be deeply undertheorized.