Then again, maybe not

Imagine this: Lightning has struck. The Supreme Court - United States or California - has granted review, and the legal community is excited that the court has agreed to definitively resolve a question that has divided the lower courts for years and is of great importance.

Then, for whatever reason, the court doesn't answer the question everyone thought it would.

One would think this shouldn't happen. Unlike the intermediate courts of appeal beneath them, the supreme courts generally get to decide which cases and issues to hear. If, as Chief Justice John Roberts testified at his confirmation hearing, a judge's job is to "call balls and strikes," then Supreme Court justices decide which pitches to umpire.

So why change their mind after agreeing to approach the plate?

Analytically, there are four scenarios in which a supreme court accepts review of an issue, but arguably does not fully resolve it.

The first occurs when the court discovers that it should not have granted review in the first place. Discretionary review usually turns on two considerations: (1) whether the case presents a question warranting review (either because the lower courts are split or the question is of national or state-wide importance), Cal. Rule of Court 8.500(b); U.S. Sup. Ct. Rule 10; and (2) whether the case "cleanly presents" that question - in other words, whether this case is a good "vehicle" for deciding the question, Rogers v. United States, 522 U.S. 252, 259 (1998) (O'Connor, J., concurring); Dart Cherokee Basin Operating Co. LLC v. Owens, 135 S. Ct. 547, 556 n.6 (2014) (alluding to "vehicle concerns").

The decision to grant review is usually based on a truncated record - most often, the parties' petitions seeking review, any oppositions and replies, and whatever portions of the record they choose to attach. Not until after review is granted is the whole record transferred to the supreme court. Sometimes, the justices' closer review of the whole record uncovers facts that "were not ... fully apprehended at the time certiorari was granted," The Monrosa v. Carbon Black Export, 359 U.S. 180, 183 (1959), or uncovers "logically antecedent questions" that prevent the court form reaching the question it agreed to answer, Unite Here Local 355 v. Mulhall, 134 S. Ct. 594, 595 (2013) (Breyer, J., dissenting from order).

Examples abound. The petitioner may have forfeited or conceded the question presented or its factual predicate. See Adams v. Robertson, 520 U.S. 83, 85 (1997) (forfeiture); Amgen Inc. v. Conn. Ret. Plane & Trust Funds, 133 S. Ct. 1184, 1197 n.6 (2013) (judicial admission). The decision the court renders may end up having no impact on the outcome of the case. See Los Angeles County Employees Union, Local 434 v. County of Los Angeles, 33 Cal. App. 3d 269, 272 (1973) (error harmless); Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 118-20 (1994) (claimed constitutional right may already exist under statutory law). Or the petitioner may lack standing, the case may have become moot, or antecedent questions may render the question presented hypothetical or advisory, Izumi Seimitsu Kogyo Kabushiki Kaisha v. U.S. Phillips Corp., 510 U.S. 27, 33 (1993) (no standing); Medellin v. Dretke, 544 U.S. 660, 664-67 (2005) (advisory opinion); City & County of San Francisco v. Sheehan, 135 S. Ct. 1765, 1774 (2015) (parties concur on antecedent question, so case lacks "adversarial briefing") - although the California (but not United States) Supreme Court can still decide an issue even if it is moot or if the petitioner lacks standing. See DeRonde v. Regents of the Univ. of California, 28 Cal. 3d 875 (1981).

In these situations, the courts have two options: They can "DIG" the case (that is, dismiss the case as improvidently granted), or they can keep the case but decide it on the antecedent issue instead of the question presented (Izumi), although the California Supreme Court must first give the parties an opportunity to brief the antecedent issue. See Cal. Gov. Code Section 68081.

The second scenario arises when the court answers a different question than the one presented. This happens, as noted above, when the court addresses an antecedent issue rather than the original question presented.

The third scenario occurs when the court decides only part of the question presented. Take Klehr v. A.O. Smith Corp., 521 U.S. 179 (1997). There, the court granted certiorari to resolve a four-way split regarding when a civil claim for a violation of the Racketeering Influenced and Corruption Organizations Act accrues. Rather than decide which accrual rule was correct, the court rejected one rule. The court disapproved of a different accrual rule three years later, but still left undecided which of the two remaining rules was the right one. Rotella v. Wood, 528 U.S. 549, 554 n.2 (2000).

The last scenario is when the court decides the question presented differently than the litigants and court-watchers thought it would. Recently, the U.S. Supreme Court has elected to resolve a few Fourth Amendment cases on property grounds rather than privacy grounds. See United States v. Jones, 132 S. Ct. 945 (2012) (GPS tracking); Florida v. Jardines, 133 S. Ct. 1409 (2013) (dog sniffs of front doors). Just last term, the court in Ohio v. Clark, 135 S. Ct. 2173, 2181-83 (2015), chose to give a case-specific answer to whether a private pre-school teacher's testimony regarding a toddler's report of child abuse was barred by the Sixth Amendment's confrontation clause rather than rule that a mandatory duty to report always triggered the clause or to rule that a private party's testimony always fell outside the clause.

Because the courts in the first scenario often lack jurisdiction, it is only in the remaining scenarios that the justices (or the courts as a whole) are making a conscious decision not to call the pitch as originally thrown. So what prompts such a switch?

The answer appears to hinge on a tug of war between competing values. Retreating is costly because the refusal to review means an important question remains unresolved and the lower courts are left without guidance. Skinner v. Switzer, 562 U.S. 521, 535 n.13 (2011); Hill v. NCAA, 7 Cal. 4th 1, 57 (1994).

Three considerations may nevertheless justify that cost and prompt a justice (or the court as a whole) to reconsider her vote to grant review:

(1) Philosophy on the role of judges. A justice who views her role as limited and incremental may be inclined to decide no more of a case than is absolutely necessary; this might explain Klehr's rejection of one rule without specifying the rule to govern future cases.

(2) Philosophy on the role of supreme court review. Along similar lines, a justice who takes a narrow view of his court's role might be more inclined to hold off review for the ideal case - one involving fulsome disagreement among the lower courts on an issue of great importance and having no "vehicle problems." Should a justice with this approach discover that the case is not as ideal as it first appeared, he might be inclined to change his mind about review in order to allow further "percolation" on the issue in the lower courts. Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting).

(3) Practical concerns. Multi-member courts need a majority, and sometimes the court may have enough votes to decide a case one way but not another. Although supreme courts will often decide cases with a multitude of fractured opinions, e.g., Hodgson v. Minnesota, 497 U.S. 417 (1990) (five separate opinions), other times they seek to speak with a clear - and sometimes unanimous - voice. E.g., Brown v. Board of Education, 347 U.S. 483 (1954).

These "second thought" considerations are beyond the control of litigants. All litigants can do is alert the court to issues bearing on their case's fitness for review as early as possible, and hope that there will still be an umpire standing there when the pitch crosses the plate.