But those tactics can be risky since the justices tightly control their docket and devote their limited energies to contemplating the questions they’ve agreed to answer. Coincidentally, testy exchanges about deviation from a question presented also occurred earlier Tuesday during Supreme Court arguments in the case Thompson v. U.S.
“You’re asking us to decide something much broader than the straightforward question … that was in the question presented and that was in the cert petition,” Justice Brett Kavanaugh told a lawyer at one point in the Thompson arguments.
But stretching the scope of a case can also bear fruit. One of the best-known examples occurred in Dobbs v. Jackson Women’s Health Organization, where Mississippi officials initially won review of a fairly typical abortion-rights question, but then pivoted to asking the justices to strike down Roe v. Wade — a gambit that ultimately succeeded.
In Waetzig’s case, the Tenth Circuit’s ruling broke with the conclusions of most circuits that have addressed the Rule 60 issue, but the Denver-based appeals court also wrote one of the more in-depth decisions on the issue. Another substantive and widely cited opinion emerged in 2013 at the Fifth Circuit, which in Yesh Music v. Lakewood Church rejected a “technical interpretation” of when a dismissal is “final,” holding that “a plain reading of ‘final’ supports defining it as something which is practically ‘finished,’ ‘closed’ or ‘completed.'”
