I was fascinated by Orin's discussion of the pique displayed in the Ninth Circuit regarding the DOJ's refusal to introduce evidence of reasonable suspicion for a border search even though such evidence likely existed. I actually have a good deal of sympathy for the argument that such tactics are like seeking an advisory opinion, though at the end of the day I am not sure that argument holds up.

I seem to recall a somewhat analogous strategy regarding civil rights litigation, where cases brought and arguments raised were carefully controlled to bring issues before the courts in carefully controlled circumstances designed to push or undermine particular legal theories (regardless of whether other theories were available). A similar example might be found in the decision in Lawrence v. Texas not to raise gender discrimination as the basis for their claim, even though to some (me included) that seemed the more obvious point, though one that might be perceived as having more wide-reaching implications, and hence might have deterred some in the middle. (And thus we are back to the question of whether outcomes affect the legal correctness of a decision or position.)

While it may be true that it was unnecessary for the government to rely on the more favorable Supreme Court ruling to defend their search, that hardly means it was improper to do so or that the government is "manufacturing" a case and seeking an advisory opinion by introducing only such evidence as the law requires. Nobody imagines that the government should introduce evidence that a particular law would satisfy strict scrutiny when the proper test is rational basis scrutiny. And that would be true even where greater evidence were available. While a party always has the option of arguing in the alternative that they can satisfy even the stricter test asserted by their opponent, it seems odd to require them to argue on their opponent's preferred ground rather than to dispute the premise and leave it at that. Such litigation choices arise all the time, and the courts routinely take their cases as they are argued, not as they would prefer them to be argued. Failures of proof are routinely held against a party even where that party could have proved far more than they did.

The fact that the absence of proof here forced the court to consider a harder question than it might otherwise have considered does not make the decision advisory. Had the court decided that invasive searches required greater suspicion, the government would have lost the case regardless of whether they could have satisfied satisfied the heightened standard with additional proof. One might criticize the government for risking a conviction by not arguing in the alternative, but I do not see any real problem in forcing the court to apply a broadly deferential rule that the government had ample reason to believe applied and controlled. Had this been a private party with only this single case to consider, rather than the government, the considerations might be different. But where the government is a repeat player in this arena the systemic benefits of establishing new and clear Ninth Circuit precedent presumably serve the "client" better in the long run and thus justify the fairly limited risk of an adverse result in the particular case.