We’ve written about bait-and-switch petitions for review in the California Supreme Court — petitions that get the court’s attention with a juicy, review-worthy issue, but then are followed by merits briefing that argues for reversing the Court of Appeal on a different and much less important ground. Apparently, it happens at the U.S. Supreme Court also.
This week, the Court decided City and County of San Francisco v. Sheehan. It had 
granted certiorari on two questions presented by San Francisco, including, first, whether the Americans with Disabilities Act “requires law enforcement officers to provide accommodations to an armed, violent, and mentally ill suspect in the course of bringing the suspect into custody.” San Francisco changed course, however, after the case was accepted, basing its argument on another ground. Worse yet, according to the Court’s opinion, it was a ground that was “never hinted at” in the Court of Appeals and that “effectively concedes” San Francisco would lose on the first question it had presented.
But San Francisco got away with its strategy. The Court dismissed the first question as improvidently granted and, opting not to “further punish” San Francisco by dumping the whole case, went on to decide the second question in San Francisco’s favor.
Justice Scalia, joined by Justice Kagan, wrote separately, stating that he “would not reward such bait-and-switch tactics.” Doing so, he said, would “encourage future litigants to seek review premised on arguments they never plan to press, secure in the knowledge that once they find a toehold on this Court’s docket, we will consider whatever workaday arguments they choose to present in their merits briefs.” Scalia concluded that dismissing review of the entire case was necessary “to avoid being snookered, and to deter future snookering.”
