Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Wednesday, July 18, 2018

The Supreme Court & Stare Decisis: What Difference Can One Justice Make?

This is my second post in what I hope will be a series about overruling & the Supreme Court.

As we hurdle toward confirmation hearings for Brett Kavanaugh, public discourse has continued to center on stare decisis: will the post-Kennedy Roberts Court undo significant chunks of precedent.

If it did, this would mark a change for the Roberts Court. As I mentioned in my last post—and as Jonathan Adler discusses more fully at the Volokh Conspiracy—the Roberts Court has overruled precedent less frequently than its predecessors.1 The slowdown began in the 2007 term, the first in 50 years where the Court didn’t overrule a single precedent. From the 2007 term through the 2016 term, the Court overruled itself nine times. That is, by modern measures, a stately pace: the Rehnquist, Burger, and Warren Courts averaged 2-3 undoings per year.

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So can a small change in personnel shift the stare decisis dynamic of the Court? Recent history provides an obvious example: the retirement of Felix Frankfurter and the appointment of Arthur Goldberg (and later Abe Fortas). The Warren Court has an evidence-based reputation for aggressively overruling precedent. Chief Justice Warren’s tenure was bookended by major overrulings, from Brown v. Board of Education in his first term to Chimel v. California and Brandenburg v. Ohio in his last.

But the Warren Court’s story on stare decisis is a tale of two Courts. From the 1953 through the 1961 term, the Court overruled itself only 10 times, a pace of barely over once per year. This rate was slower than the Court’s under Warren’s predecessor, Fred Vinson, and slower than that of any subsequent Court until the post-2006 Roberts Court.

And then came the 1962 term. Bang: six undoings. Then six more in 1963. Then 24 times from the 1965 through 1968 terms. From the 1962 through 1968 terms, the Court overruled precedent an average of 5+ times per term.

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What changed? Felix Frankfurter. Justice Frankfurter was, of course, a leading advocate of judicial restraint (though his voting record, on some issues, tells a more complex story). And one can certainly see signs of Frankfurter’s resistance to the impending Warren Court revolution: he dissented in precedent-altering cases regarding the exclusionary rule (Mapp v. Ohio) and the one-person/one-vote doctrine (Baker v. Carr). When he retired, the dam broke: President Kennedy appointed Arthur Goldberg, and milestone undoings like Gideon v. Wainwright, Miranda v. Arizona, and Katz v. United States followed.

We see a similar shift in 1937. In Charles Evans Hughes’s first seven terms as Chief Justice, the Court overruled precedent six times. But in has last four terms, it undid itself 17 times. The shift coincided with a significant change in personnel: Willis Van Devanter, one of the conservative Four Horseman, retired; he was replaced by Franklin Delano Roosevelt’s first appointment, Hugo Black.

We certainly can’t attribute these shifts entirely to changes in a single justice. In both instances, winds of change were already blowing, Just before Justice Van Devanter retired in 1937, the Court famously reversed course on the constitutionality of state minimum wage laws; perhaps Justice Owen Roberts’s change of position would have left the dam broken even without the Black-for-Devanter swap. And perhaps, as Frankfurter-era decisions like Mapp v. Ohio and Baker v. Carr suggest the Warren Court revolution would have rolled on even with Justice Frankfurter on the Court; indeed, many of the post-Frankfurter overrulings were by lopsided votes.

Still: a key change of personnel on a closely-divided Court can alter the dynamics of stare decisis.

So will this happen on a Kavanaugh-for-Kennedy Court? Perhaps not, at least in ways that bust the y-axis on a graph. As Professor Adler notes, the Roberts Court to this point has been the Kennedy Court. The Court’s overrulings are part of this story: when the Roberts Court has overturned precedent, it almost always has been because Justice Kennedy wanted to do it. The Court has, if one counts aggressively, overruled precedent 19 times. Justice Kennedy assented to the overruling 16 of those times (he dissented twice in Roberts-Court overrulings; in one case, he concurred in the judgment, but did not endorse the undoing of precedent). Several of these times, Justice Kennedy was in the majority in a 5-4 decisions. And, while several of these decisions skew conservative (think Citizens United), others were not (think Obergefell).

As Professor Adler points out, Justice Kennedy was not a disciple of judicial restraint. So it’s entirely possible, even with a shift in Court personnel that will be transformational on many issues, that the Roberts Court’s complex incrementalism will continue. Doctrinal change: yes. Frontal assaults on stare decisis: maybe not.

But we can safely say one thing: there will be overrulings next term. I’ll talk about that in my next post.

  1. Professor Adler bases his analysis on a list produced by the Government Publishing Office. That list is a bit incomplete: it does not, for example, include any cases from the October 2006 term, in which the Court overruled precedent four or five times, depending on how one classifies Parents Involved in Community Schools v. Seattle School District No. 1. The Supreme Court Database aggressively codes PICS as “altering precedent,” apparently because of Justice Breyer’s musings in dissent (“What has happened to stare decisis?”) and the Chief Justice’s rebuttal that the justices were not “tacitly overruling” Grutter v. Bollinger. For classification purposes, I think the Supreme Court Database gets this one wrong. Justice Breyer’s “tacit overruling” criticisms are mostly targeted at portions of the lead opinion where Chief Justice Roberts wrote for a four-justice plurality. And both the Chief and Justice Kennedy’s concurring opinion take pains to distinguish rather than alter Grutter. ↩︎

July 18, 2018 in United States Supreme Court | Permalink | Comments (0)

Monday, July 16, 2018

New SCOTUS Nominee

While I was out of town visiting family (and staying far away from computers) the country had some big appellate news!  Justice Anthony Kennedy announced his retirement from the Supreme Court, giving President Trump his second Supreme Court nomination.  One week ago today, President Trump announced that he was nominating D.C. Circuit Judge Brett Kavanaugh to fill the vacancy.  Judge Kavanaugh, a former Kennedy clerk, has served on the D.C. Circuit for 12 years.

While I know that Judge Kavanaugh has lots of supporters, I was surprised by the pick for two main reasons.  First, Judge Kavanaugh is very connected to the Bush II administration, having served as White House Staff Secretary.  His wife also worked in the Bush administration.  Second, and relatedly, Judge Kavanaugh's long time service in D.C. seems to connect him to the "swamp" that President Trump disavows.  However, those two issues didn't seem to bother the President, and Judge Kavanaugh got the nod over other potential front runners including Judge Hardiman, Judge Barrett, and Judge Kethledge.

It hasn't taken long for the battle lines to be drawn in the Senate.  My email has been flooded with information and stories about Judge Kavanaugh.  His detractors seem to focus on hot button social issues and whether Judge Kavanaugh will be too deferential to the president.  His supporters point to his long, respected record on the D.C. Circuit and the praise that he has received from his law clerks and others.  It remains to be seen whether Judge Kavanaugh will be confirmed.  I have heard some speculation that he could have trouble with some of the more moderate Republicans (or perhaps with Sen. Rand Paul).  However, there are a lot of Senators from "red" states who are up for reelection.  They might feel pressure to support the President's pick.

Apart from the politics of the Kavanaugh nomination, I am struck by how much the Supreme Court has changed in the last 13 years.  When I graduated from law school in 2005, the Court had not changed in composition in over 10 years.  In the 13 years since I graduated, we have seen five new justices (and that number will be six if President Trump's pick is confirmed).  New justices mean a younger court too! The institution has changed some too, with new required e-filing.  Perhaps we will even see cameras in the courtroom in the next 10 years.

For the present though, we will watch and wait to see if Judge Kavanaugh is confirmed in time for the Court's October 2018 term. It should be an interesting summer!

 

July 16, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (1)

Sunday, July 8, 2018

The Undoing Project*

With Justice Kennedy's retirement and confirmation hearings for his soon-to-be-named replacement looming, public discourse is thick with talk of stare decisis. Will/should a post-Kennedy Court overrule Roe v. Wade (or, more accurately, the "central holding" of RvW that survived Planned Parenthood v. Casey)? Obergefell v. Hodges?

I won't try to answer these questions (and, of course, neither will the nominee). And I can't begin to address, in anything short of of roomful of treatises, the complexities of the customs and law of precedent. But as the summer grinds on, I'd like to devote a few of my posts here to judicial undoing: the circumstances, process, and advocacy of overruling.

This post will get things rolling with a simple point: undoing is part of the regular—albeit not routine—order of the United States Supreme Court. Counting can get tricky, but we can say with confidence that the Court has overruled its own precedent well over 200 times.1 According to the Government Publishing Office, the Court overruled itself 236 times heading into the October 2017 term; that number is now 238 or 239, depending on how one accounts for what the Court did to Korematsu v. United States in Trump v. Hawaii. According to the Washington University Supreme Court Database, the Court has formally altered precedent 251 times heading into OT 2017. 2

Of course the stories behind these numbers often fascinate. Including the stories of the advocacy: of Thurgood Marshall and the NAACP Legal Defense Fund in Brown v. Board of Education, of summer associate John Hart Ely’s extensive work on brief in Gideon v. Wainwright, of Seattle associate Jeffrey Fisher’s brilliant briefing in Crawford v. Washington (during the same term that he argued—and won—another blockbuster, Blakely v. Washington), of Ruth Bader Ginsburg in Duren v. Missouri (Chief Justice Burger: “Mrs. Ginsburg, you may lower the lectern if you would like.”).

And there are stories in the numbers themselves. One can, crudely, track the shifts in the role of the federal judiciary from the we’re-not-undoing-much-because-there’s-not-much-to-undo Marshall Court (3 overrulings in 34 years) to the fast-pace undoings of the post-Frankfurter Warren Court (34 overrulings between 1962 and 1969). One can find, as Jonathan Adler did in a recent post at the Volokh Conspiracy, data that might give us insight into what comes next: the Roberts Court, particularly since the overruling-heavy 2006-07 term, has overruled precedent at a significantly slower pace than its postwar predecessors. Although that might change. Occasionally, the data appear to tell the story of a shift in personnel. From 1954 to early 1962, the Warren Court overturned precedent relatively slowly. But then, in the wake of the wrenching decision in Baker v. Carr (listen to this episode of the More Perfect podcast), Felix Frankfurter suffered a stroke and retired from the Court. He was replaced by Arthur Goldberg. It’s quite fair to say that the two justices were polar opposites on issues of judicial restraint. Perhaps it’s coincidence, but the Warren Court more than tripled its rate of overruling after the shift.

In my next few posts, I'll dig more into the Supreme Court and judicial undoing: the first times, the last times, the next times, and so on.

-----

  1. This doesn't count the first, quite famous, non-judicial undoing of a SCOTUS decision: the first post-Bill of Rights amendment to the Constitution. In 1793, the Court in Chisholm v. Georgia held that Article III, section 2 of the Constitution abrogated state sovereign immunity and thus authorized a federal court sitting in diversity to hear a war-debt claim by citizens of South Carolina against the state of Georgia. Reaction was swift: by early 1795, Congress approved and twelve states ratified the Eleventh Amendment, which clarified that the judicial power "shall not be construed" to extend to diversity actions brought against states. Other constitutional amendments have directly undone decisions of the Court: see, for example, the Sixteenth Amendment (authorizing Congress to impose income taxes; overturning Pollack v. Farmers Loan & Trust Co.), the Twenty-Sixth Amendment (lowering the voting age in state and federal elections to 18; overturning Oregon v. Mitchell), and the Section One of the Fourteenth Amendment (extending state and national citizenship to all persons born or naturalized in the United States and subject to its jurisidicion; overturning Dred Scott v. Sandford. ↩︎
  2. The actual number of cases overruled is higher, as the Court occasionally will overturn a line of precedent. In June, for example, the Court in South Dakota v. Wayfair overruled Quill Corp. v. North Dakota and National Bellas Hass Inc. v. Illinois Department of Revenue on the issue of state taxation of out-of-state retailers. Quill thus occupies a rare place in the world of bizarro stare decisis: it both overturned precedent (Bellas Hass, in part) and was itself overturned. Also on the whiplash list is National League of Cities v. Usery (overruling Maryland v. Wirtz; overruled by Garcia v. San Antonio Metro. Transit Authority. ↩︎

July 8, 2018 in Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Thursday, June 28, 2018

The Court Is in Recess, and in Transition

Yesterday, Chief Justice Roberts gaveled the last session of the term to a close. This was the completion of a big year on the Court: a new justice was sworn in, and several consequential decisions were handed down. This year, there were also rumors that Justice Kennedy may be retiring, so on the last day of the session, Court watchers were anxious to see what may develop in the last few hours.

The procedures and customs of the Court frequently give away what may happen on any given day - despite the Court never giving a heads-up to the public. Observers just have to wait and see. Frequently when a justice is scheduled to present an opinion, his or her family members or special guests may arrive in the gallery. This week, this custom was upheld when Justice Thomas' wife, Ginny, appeared on Tuesday for his reading of the majority in National Institute of Family and Life Advocates v. Becerra, and Justice Breyer's wife was in attendance yesterday for his reading of the majority in a water rights case of Florida v. Georgia. Nothing unusual, yet.

Then, a whole hoard of what appeared to be Justice Kennedy family members entered the courtroom. Observers and reporters perked up! There were no further opinions expected, so why the special guests of Justice Kennedy? After the announcement of the opinions, Chief Justice Roberts teased everyone by announcing three retirements, but all were of Court staff. The Court then filed out. Observers did not know it yet, but that was the last time Justice Kennedy would exit the chamber. He announced his retirement later that afternoon. 

Justice Kennedy's announcement provides President Trump an opportunity few presidents ever have. To appoint one Supreme Court Justice is not so unusual, but to be able to appoint two is close to monumental. Our public conversation has become nearly irretrievably controversial, so while Justice Kennedy settles into retirement this summer, everything else, and not just the temperature, is going to heat up. 

June 28, 2018 in United States Supreme Court | Permalink | Comments (0)

Thursday, June 21, 2018

When Justices Cite to Oral Arguments

As the Supreme Court's term finishes with a flurry, this is a great time to glue yourself to Adam Feldman's data dives on his outstanding blog, Empirical SCOTUS (cross-posted since March at SCOTUSblog.com). The site is a treasure trove for Court watchers, and Feldman is terrific at collecting, presenting, and analyzing data about an endlessly fascinating institution.

In a recent post, Don't Cite Me Like That, Feldman touches (tentatively, and appropriately so) on issues that keep a lot of us entertained: Does oral argument change outcomes? If so, how? And how can we tell? This debate was raised afresh late last week in the wake of the Court's decision in Minnesota Voters Alliance v. Mansky, a challenge under the First Amendment to Minnesota's ban on political apparel at polling places. Because polling places are nonpublic fora, governments have considerable latitude to impose even content-based restrictions on speech; those restrictions simply must reasonable and viewpoint-neutral. Writing for a seven-justice majority, Chief Justice Roberts concluded that the ban was unreasonable because the state failed to draw sufficiently sharp lines between permitted and banned political messaging; that is, the Chief says, "a serious matter when the whole point of the exercise is to prohibit the expression of political views."

To illustrate the state's difficulty in drawing lines, the Chief Justice cites to segments of the argument where counsel for the state, like, struggled to draw lines. The key questions came from Justice Alito; Mark Joseph Stern describes the most damning colloquy and provides an audio cut in this piece for Slate. Justice Alito relentlessly presents a chain of hypothetical questions about how a reasonable polling official would apply various bits of expressive apparel: a Colin Kaepernick jersey, shirts displaying rainbow flags or various messages, and so on. Counsel for the state's struggle was real (and understandable). It was also, according to the chief, telling:

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My intuition is that justices will most often cite to oral argument for the reasons the Chief did here: to oppose the position of the advocate presenting the argument. My sense, too, is that a major subset of such uses would be to expose overbreadth and faulty tailoring by highlighting awkward responses to scope-testing hypotheticals. Characteristically, Feldman doesn't rely on intuition: he pulls the data. This term, justices have cited to oral arguments 69 distinct times in 26 cases (both numbers went up this morning; the justices dropped cites to oral argument in this morning's opinions in Pereira v. Sessions and Lucia v. SEC). And yes: this term, justices' most common purpose for citing oral argument has been to undercut a party's position, either by using the transcript to "create a straw man argument that the authoring justice later deconstructs" or, as in Mansky, to "more directly oppose a party's position" by detailing "miscalculated or erroneous answers," often to questions about hypothetical applications. To be sure, justices use oral argument transcripts for other purposes, and Feldman breaks down and explains those well. This strikes me as a rich area for further study.

Cycling back to the initial question: did the state's struggles in the Mansky oral argument effect the outcome? Obviously, we can't know with the information we have, and given the marginal, late-in-the-game impact of oral argument, a good hypothesis in almost any case would be no. But, as Feldman cautiously explains, Mansky might be different. Justices Kennedy, Ginsburg, and Kagan sided with the majority. But their questioning patterns at oral argument (and, to some degree, the substance of their questions, particularly those of Justices Kennedy and Ginsburg) would suggest that they might have been inclined to rule the other way. And Justice Sotomayor's position in dissent—certify the case to the Minnesota Supreme Court for a possible saving construction—was a modest one. And yet: 7-2, with the oral argument transcript cited six times in the majority opinion (the Court also cited twice to oral arguments in Burson v. Freeman, a 1992 case addressing campaigning restrictions near polling places; see footnote 1 of the Mansky slip opinion).

So perhaps oral argument really mattered here. 

Mostly, though, just add Empirical SCOTUS to your must-read list if you haven't already. 

June 21, 2018 in Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, June 11, 2018

Return to Judgment (not Judgement)

Earlier this year I blogged about students (and a well-known national gym franchise) spelling the word judgment with the letter "e" appearing twice--in "judge" and in "ment."  In my initial post, I took a cursory look at how the U.S. Supreme Court spells the word, finding that it overwhelmingly prefersthe single "e" version of the word.

The topic intrigued me so much, I decided to dig a little deeper and write a short article on it.  I am pleased to announce that the article will be published in the Spring 2018 edition of The Green Bag.  You can preview the article here.

The article starts with an Originalist inquiry into the spelling of judgment--looking at how the word was spelled in state constitutions and other important founding documents.  I then explore English language and legal dictionaries to see how those sources spelled the word.  I end with a much more detailed look at the Supreme Court's treatment of the word, using various legal research databases to identify every instance of "judgement" appearing in the U.S. Reports.  

Although I do encourage you to read the article (it is quite short), I am happy to share my conclusion in this post. In legal writing, judgment should be spelled with only one "e."  That is the preferred spelling of the early sources, the dictionaries, and the U.S. Supreme Court.  For those who want to cling to the double "e" version of the word, I implore you to be consistent in your writing. While seeing judgement in a brief does cause me to cringe, I cringe even more when I see the word spelled two different ways, sometimes in the same paragraph or sentence.

June 11, 2018 in Legal Writing, United States Supreme Court | Permalink | Comments (0)

Monday, May 28, 2018

Memorial Day Musings--SCOTUS and the Military

Today our country observes Memorial Day--a time to remember and honor individuals who died while serving our country in the military.  As the wife of a Marine Corps veteran, holidays like Memorial Day and Veterans' Day are dear to my heart.

As I was thinking about the upcoming holiday, I pondered how many Supreme Court Justices have served in the military.  The Supreme Court has decided several cases that impact the military, but how many are familiar with military service?  In searching the Internet for an answer, I stumbled across an August 2012 Atlantic article by Andrew Cohen, addressing the very topic.  According to Cohen, none of the current members of the Court have "active, wartime military experience." (Note:  Justice Gorsuch, who joined the Court after the article was published, also doesn't have military experience).  The last Justice with such experience was Justice John Paul Stevens, who served as a cryptographer in World War II.

Reviewing the backgrounds of the 112 Justices of the Supreme Court, Cohen estimated that only 41 had military experience, but "many never served in active duty during wartime or fired at an enemy."  Included in this group is Justice Kennedy (California Army National Guard), Justice Alito (ROTC and Army Reserves), and Justice Breyer (Army service).

Cohen's detailed research reviews each war and notes which Justices served.  Some notable veterans: Justice Holmes, Justice Black, Chief Justice Warren, Justice White, and Chief Justice Rehnquist.  Cohen notes, however, that since World War II, no future justices have served in combat.  As he states, "three generations of justices have come and gone since the end of hostilities in 1945, and yet none have seen combat before their tenure on the Court. Never before in our history, or in the history of the United States Supreme Court, has this occurred."

If Justice Kennedy does retire, perhaps President Trump will consider a veteran for the high court.  At least one member of his "shortlist"--Margaret Ryan--would fit that bill.

 

May 28, 2018 in United States Supreme Court | Permalink | Comments (0)

Thursday, May 10, 2018

Thinking Thursdays: Two-spacers, please stop being so selfish

 

Ruth Anne Robbins, Distinguished Clinical Professor of Law, Rutgers Law School

The big news this week in field of law and typography[1] was a Washington Post story about a study that purports to settle the one versus two-space controversy that rages on appellate-minded websites, listservs, Facebook pages, and Twitter accounts. Even on this Appellate Advocacy Blog, editor Tessa Dysart chimed in earlier this week. For those of you who are two-space fanatics, I am going to do more than repeat what you may have already heard, i.e. that the study is deeply flawed (although I will quickly review it). Mostly, I am going to suggest that you reflect on your dry, compassionate-less soul and then put down your personal preferences to instead be a citizen of the world.

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But before I continue along these lines, I want to reiterate the scientific flaws in the study that have been ably and articulately pointed out by the best typographer and design expert in law—Matthew Butterick. I have had the pleasure of presenting with LWI Golden Pen recipient Matthew Butterick, and I know that when he writes something, he’s carefully researched and analyzed it first. Right away, Butterick calls attention to the central flaw of the study. It was done using the monospaced (typewriter-like) typeface of Courier, which is still required by the upper courts of New Jersey. To try and shake loose the New Jersey committee overseeing court rule changes, I researched the educational and cognitive science of readability and in 2004 published Painting with Print: Incorporating Concepts and Layout Design into the Text of Legal Writing Documents. The New Jersey officials were not persuaded but other courts were, and the article appeared by invitation on the 7th Circuit’s website for twelve years.

Because it is a monospaced typeface, two spaces must appear at the end of each sentence. Otherwise it is too difficult to determine whether there has actually been a break in the prose. But people don’t use typewriter fonts when they have the choice to use a proportionally spaced one such as the one you are reading right now. And there’s a reason for that. Courier, and typefaces like it, are 4.7% more difficult to read than proportionally spaced type. That equals a slowdown of fifteen words per minute, which Dr. Miles Tinker, the lead psychologist who studied the issue deemed “significant.” In his studies, readers consistently ranked proportionally spaced typefaces ahead of monospaced ones.[2] In other words, the new study is flawed both in using a typeface that people don’t normally choose, and in using a typeface that essentially requires two spaces to be able to discern the difference between the end of a sentence or not. The people conducting the study put the cart before the horse. That’s just poor science.

Now, I promised you a lambasting, and here it is. Two spaces after periods take up more space and for lawyers who find themselves up against a page limit, or who wonder why paper is so expensive, think about whether you can save yourself some space and money by switching over to one space instead.[3] You can also cut down on use of one of the most noxious and wasteful products we use: paper. In this country, paper is the largest source Eagle_Paper_and_Flouring_Mill_Kaukauna edited of municipal waste, and paper creation is the fourth worst industry for the environment. I wrote about this too, in a follow-up article, Conserving the Canvas: Reducing the Environmental Footprint of Legal Briefs by Re-imagining Court Rules and Document Design Strategies. Two spaces after periods actually contribute to the polluting of the environment. Yes, that extra space really does cost something to use.

And, if you are in the Seventh Circuit, you don’t even have a choice. The judges care a great deal about typography and instruct lawyers to use only one space after periods.

Al Gore thumbs up editedSo, there you have it, two-spacers. An inconvenient truth. There’s logos, pathos, and ethos to using only one space. Your preference harms the Earth, eats into your page limits, and costs you and your clients more money to use. The so-called study is junk science. Are there really any justifiable reasons left to continue your inconsiderate punctuation practices?

 

 

 

[1] Sure, that’s a thing, per Derek Kiernan-Johnson

[2] Miles A. Tinker, Legibility of Print 47–48 (Iowa State U. Press 1964) (synthesizing several decades of psychological research on typeface and readability).

[3] There are also other ways to save yourself some money and ecological ruin. When rules don’t require double-spacing: don’t. It’s harder to read anyway. And when courts allow you to use double-sided printing, do so.

May 10, 2018 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, United States Supreme Court, Web/Tech, Weblogs | Permalink | Comments (0)

Thursday, February 8, 2018

Justice Ginsburg Reminds Us To Be Bold, But Not To Take Ourselves Too Seriously

The Notorious RGB is on tour. In person, she's a tiny little lady, with a tiny little voice, but out on the road she draws crowds like any other rock star. And at eighty-four, she is going strong. She says she will keep going as long as she can "do the job full steam." She even has a movie coming out documenting her life. It's entitled "RBG." She's a big deal. Not many others get to go by just their initials and everyone still knows who they're talking about.

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(Justice Ginsburg at NYU recently. This picture was too good not to share.)

Justice Ginsburg was recently profiled in the New York Times with tales of her latest adventures, but what she said about her criticism of Roe v. Wade many years ago, prompted me to think about my own day job - teaching law students how to advocate. In a lecture she delivered at NYU shortly before she joined the Supreme Court, Ginsburg

criticized Roe v. Wade, the 1973 decision establishing a constitutional right to abortion.

The Supreme Court had moved too fast, Justice Ginsburg wrote at the time. It would have sufficed, she wrote, to strike down the extreme Texas law at issue in the case and then proceeded in measured steps in later cases to consider other abortion restrictions.

The trend in state legislatures in the early 1970s, she wrote, was toward more liberal abortion laws. The categorical Roe decision, she wrote, gave rise to “a well-organized and vocal right-to-life movement” that “succeeded, for a considerable time, in turning the legislative tide in the opposite direction.”

Her analysis is contested, as Justice Ginsburg acknowledged on Monday. “I know that there are many people who disagree with me on this subject,” she said.

This statement is so insightful for how I want my students to think about advocacy. Law schools are smack in the middle of moot court season right now, and many of us are running to practices after class or during our lunch breaks. Inevitably, always one critique for the student mooters is, "We are the Supreme Court. We can do anything we want. What should we do? Make that argument." Students are frequently stuck on precedent and making analogous arguments to lower court opinions. It takes some nudging to get them into the mindset to make them contemplate what really is the right decision for the court to make. Have the lower courts found the right reasoning, or have they gotten it wrong? Now is the time to tell the Supreme Court how to rule and why.

The point Justice Ginsburg makes is also prescient considering our current political discourse. How do we move good policies forward? Is having a court declare the rule a good path, despite a lag in public opinion? Or do we forge ahead having faith that public opinion will fall in line? We can see through history that unpopular decisions have eventually become the norm, but acceptance of many of these opinions has rarely been immediate. RBG may be right, perhaps sometimes the Court should move slower. But the value is in thinking through the ramifications of both action and patience.

These are the kinds of questions I want my students to wrestle with, so that they can become good advocates, but also good stewards of the profession. Lawyers hold the future of the law in their hands, and nurturing it is a task not to be taken lightly. I am glad Justice Ginsburg reminds us to think outside the judicial box.

February 8, 2018 in United States Supreme Court | Permalink | Comments (0)

Thursday, January 25, 2018

Should Justices Dine with Senators?

The newest justice to the Supreme Court, Neil Gorsuch, is doing his part to keep Twitter rolling. A few days ago he attended a private dinner with Republican Senators Cornyn, Alexander, McConnell, and Secretary of Transportation, Elaine Chao, who is married to McConnell. How do we know this? Senator Alexander tweeted about it saying,

I enjoyed having dinner tonight at the home of Senator John Cornyn and his wife Sandy with our newest Supreme Court Justice, Neil Gorsuch, Transportation Secretary Chao and a few of my other Senate colleagues to talk about important issues facing our country.

The Tweet did not go unnoticed and drew criticism ranging from charges of fraternization to ethical impairment. The action of dining together is not actually against any judicial code of conduct. According to the Code:

Canon 5: A Judge Should Refrain from Political Activity

(A) General Prohibitions. A judge should not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate, or publicly endorse or oppose a candidate for public office; or

(3) solicit funds for, pay an assessment to, or make a contribution to a political organization or candidate, or attend or purchase a ticket for a dinner or other event sponsored by a political organization or candidate.

Sharing a meal would not fall under these restrictions, but could there still be a problem with it? Yes, and the problem is with perception. Justice Gorsuch, by all accounts, seems to be a very even-tempered judge, not subject to whim. He writes thoughtful opinions and might even be called predictable in his votes. Not everyone will like his decisions, but he does not seem susceptible to political pressure.

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However, in light of the current state of the public discourse and political climate, dining privately with politicians of only one political party certainly looks bad, and is not a suggested way to build a public perception of impartiality. Based on what I perceive to be Justice Gorsuch's respect for the judiciary and public perception, I doubt we will see anymore tweets documenting his attendance at dinners like this again. 

 

January 25, 2018 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 29, 2017

Lessons from the Carpenter oral arguments: SCOTUS echoes with [laughter]

I'm no Orin Kerr, but I've been pretty obsessed lately with United States v. Carpenter, this term's blockbuster Fourth Amendment-meets-technology case. It's a fascinating case, and it features outstanding advocates addressing important issues (and it makes for a nifty moot court problem). So I figured today I'd get the transcript, pore over it, and identify some great moments that let me say useful things about advocates doing advocacy.

There definitely are such moments. Interesting exchanges. Justice Gorsuch sharply pursuing a property-interest line of reasoning. And, most of all, the remarkable Michael Dreeben spinning out elegant prose on the fly.  

But what struck me first was the laugher. Or, in SCOTUS, the [laughter]. Apparently, cell phones bring out the funny in the justices. 

I shouldn't be surprised by this. Talking about Cell Site Location Information allows the justices to mine rich veins of I'm-a-wizened-person-with-life-tenure-and-I-don't-know-how-these-gizmos-work humor. And that's what Justice Kennedy did with the day's first [laughter]:

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And Justice Sotomayor:

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OK, so these are not the funniest jokes in the world. But they are, like, legit jokes. And that is not the norm for Justices Kennedy and Sotomayor. They are not humorless folk, but they never rank highly in Jay Wexler's groundbreaking studies of SCOTUS humor. Today's yuk fest means that Justice Sotomayor finally opened up a gap between herself and Justice Thomas in this term's [laughter] count. Justice Kennedy gets in the occasional self-deprecating quip, but his funniest SCOTUS moment before today was when he played straight man for Justice Scalia in the great "What's a footman?" routine of '07. These justices are not Justice Breyer, who can bring down the house with a well-timed utterance of "Limburger cheese." 

Maybe [laughter] will unite the justices. And all of us, every one.

 

November 29, 2017 in Humor, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 18, 2017

The advocacy of "the greatest lawyer of the 20th century"

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My law school was fortunate to welcome Elena Kagan earlier this week. (The artist's rendering above is the work of Professor Evelyn Brody.) During a delightfully wide-ranging conversation with Professor Carolyn Shapiro, Justice Kagan took a firm stand on one point: her former boss Thurgood Marshall was "the greatest lawyer of the twentieth century."

No one argued with that.

Marshall

As Justice Kagan noted, we mostly remember Thurgood Marshall, attorney at law, as an appellate advocate, though that might change with the release of the film Marshall, which focuses on his trial work. He is, of course, most celebrated for his work in the Brown v. Board of Education cases. And his advocacy led to key victories in the decade-plus before Brown: in Murray v. Pearson, a groundbreaking Maryland desegregation case; in Shelley v. Kraemer, a landmark case striking down racial covenants; in the Brown precursors Sweatt v. Painter and McLaurin v. Oklahoma State Regents; in dozens of other cases.

To spell out the obvious: there is substance to Marshall's legend. The records of his appellate oral arguments provide ready confirmation of this. It's worth reading in full the transcripts of his oral arguments in Briggs v. Elliott, one of the consolidated Brown cases.  In the original 1952 argument and rebuttal (pdfs), Marshall elegantly handles active questioning from skeptical justices (Reed and CJ Vinson, who reportedly favored upholding the school boards' practices)  and genuinely torn justices (Frankfurter and Jackson, who were sympathetic to the claimants but true believers in judicial restraint). In the 1953 reargument, Marshall offers a rich oral treatise on the Fourteenth Amendment. And his rebuttal is a remarkable closing argument. I won't paste an excerpt here because an excerpt won't do it justice. Trust me: click here; scroll to page 20; start reading the paragraph at the bottom of the page that begins "[t]he argument of judicial restraint has no application in this case"; keep going until you hit "[t]hank you, sir." Ethos, logos, pathos.  

I'd also recommend listening to Solicitor General Marshall's oral argument in United States v. Price, the Mississippi Burning case. Unlike in Briggs/Brown, he's not addressing skeptical or torn justices: he draws only two soft questions from a Court that ultimately ruled unanimously in his favor. So he generates his own momentum: in key segments of his argument, he serves as his own interlocutor, asking sharply-composed questions and offering sharply-composed answers. It works remarkably well; his assurance and comfort in his own skin are a palpable force.

None greater. 

October 18, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Wednesday, October 4, 2017

Oral argument in Gill v. Whitford: big questions, well-composed answers

In yesterday's oral arguments to the Supreme Court in Gill v. Whitford, the closely watched partisan gerrymandering case, Justice Breyer uncorked a doozy of a question. As he winds up, he promises to take "exactly 30 seconds." Then he, like, does not.

The question spans three pages and 57 lines in the transcript. According to Josh Blackman, who tracks the length and volume of Justice Breyer's questions so you don't have to, this appears to have shattered the justice's previous record, which I naively thought was the Article III equivalent of Joe Dimaggio's hitting streak

Here's the whole thing. Start scrolling:

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(Hat tip: Josh Blackman & Adam Feldman)

Like a lot of Breyer's long questions, this one had a pretty simple, IRAC-y structure and goal. First, he identifies a sticking point around which the Court would have to work to rule for one party or the other. Here, that's whether there are judicially manageable standards for evaluating claims of that partisan redistricting violates the Constitution. Second, he spins out his ideas about a solution (or, in other cases, his ideas about why the sticking point means the Court might be stuck). Here, that's his multi-step control > asymmetry > persistence > outlier > justification approach. And third, he asks the question. It's usually a 50+ word version of "so what do you think?"

I was impressed with the choices made by Wisconsin Solicitor General Misha Tseytlin -- an outstanding advocate -- in his answer. The question marked a shift in the direction of the argument from a conversation about one potential justiciability obstacle (standing) to another (political question). After the inevitable (laughter) that accompanies almost every Breyer mega-question, Tseytlin signaled, quite succinctly, to which of Justice Breyer's cues he would respond and how he had already touched on another earlier in the argument. And then he deliver a sharply composed, concrete multi-part answer: 

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He's then interrupted by Justice Kagan, who asks a question that's Breyerian in scope but relatively pointed:

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Tseytlin delivers another well-composed response, using the Rule of Three rhetorical device:

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I'm looking forward to hearing the audio later this week.

October 4, 2017 in Appellate Advocacy, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, October 2, 2017

First Monday

Happy first Monday!  Today kicks off the start of the Supreme Court's term.  The term last year was something of a snooze-fest as we all waited for the presidential election and the nomination of Justice Scalia's successor on the Court.  This term will likely be much more exciting with union dues, religious liberty, immigration, and sports gambling on the Court's agenda.  Check out this NY Times article and this Washington Examiner article for summaries of some of the key cases.

First Monday also means the start of the FantasySCOTUS season.  By this point, you have an idea of how your Fantasy Football season is going.  Maybe your key draft picks have been injured or just aren't playing up to expectations. Well, it is time to cut your losses and focus on FantasySCOTUS! Created by Professor Josh Blackman and now run by LexPredict, FantasySCOTUS allows anyone to predict how the cases before the Supreme Court will be decided.  User predict how individual justices will vote on cases, as well as the how the case will ultimately be decided.

I have used FantasySCOTUS as a teaching tool in the past, offering incentives for my students to participate in the contest and stay current on what the Court is doing.  The program allows you to create your own league, or you can participate in a law school specific league. There are even prizes for the top predictors! FantasySCOTUS also features {MARSHALL}+, a "revolutionary algorithim that can accurately predict Supreme Court cases."  Created by LexPredict, "{Marshall}+ was able to predict every case decided since 1953 at 70% accuracy."

Although my Fantasy Football team seems to be doing pretty good for the first time in years, I look forward to seeing how my FantasySCOTUS predictions go this term.  Good luck to all of the participants.

October 2, 2017 in Current Affairs, Oral Argument, Sports, United States Supreme Court | Permalink | Comments (0)

Thursday, August 24, 2017

Will the U.S. Supreme Court soon be reviewing 167 courts-martial?

One hundred seventy-four service members have consolidated their appeals into 167 cases. They hope to have the U.S. Supreme Court review their cases, not for substantive error, but for an unusual procedural error. The legitimacy of some of the judges who heard these cases is being challenged. And even more unusual is that the challenge comes under a Civil War era law that has never been interpreted by the Court.

Some military JAG officer serve in the capacity as a judge on courts-martial. Four were also appointed to the Court of Military Commission Review (CMCR) - a commission that reviews Guantanamo Bay proceedings on their way to the D.C. Circuit. This is considered a civilian office. Where this runs afoul is that the 1870 statute prohibits military judges from concurrently holding a nonmilitary office unless the judge has specific permission to do so.

The 1870 statute, which the Supreme Court has never interpreted, prohibits active-duty military officers from concurrently holding a civil office, unless Congress expressly authorizes the dual office-holding. Congress enacted the law to ensure civilian control of the government. The remedy for dual office-holding was to sever immediately the military officer's service connection.

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Military judges are executive branch inferior officers for purposes of the appointments clause. But because the CMCR—unlike military courts of criminal appeals—is not subject to supervision within the executive branch, its judges are principal officers who require appointment by the president, with the advice and consent of the Senate. And CMCR judges hold a "civil office" by virtue of its creation as an Article I federal court, the challengers allege.

A 1979 Justice Department Office of Legal Counsel memo on the dual office-holding statute concluded: “Where Congress wishes to permit a military officer to occupy a civilian position … without forfeiting his commission, it has done so explicitly.”

Most convicted service-members never have the opportunity for the U.S. Supreme Court to review their cases. The military justice system is maintained separate and apart from the civilian system, complete with its own court of last resort - the U.S. Court of Appeals for the Armed Forces. Each service has its own intermediate court of appeals for review of the trial level court-martial.

If the U.S. Supreme Court were to grant review on these cases, it would represent a unique circumstance even beyond the substantive necessity of reviewing a previously unremarkable, nearly 150 year old statute. The Court has not reviewed a court-martial in over twenty years.

With the concept of civilian control over the military becoming more prominent in political philosophy discussions, this issue may have a good chance of being granted review by the Court. 

August 24, 2017 in United States Supreme Court | Permalink | Comments (0)

Monday, August 14, 2017

Supreme Court to Require E-Filing

The Supreme Court recently announced that on November 13, 2017, its electronic filing system will be up and running. Thankfully, the Court’s program will not be part of the PACER system.  Rather, according to the National Journal, the Court’s main page will include a button for “Electronic Filing.” The filings will be “accessible without cost to the public and legal community.”

While this is a huge step forward for the Court, it will not, initially, eliminate the requirement that parties file paper copies.  According to the Court’s press release,

Initially the official filing of documents will continue to be on paper in all cases, but parties who are represented by counsel will also be required to submit electronic versions of documents through the electronic filing system. The filings will then be posted to the Court’s docket and made available to the public through the Court’s website. Filings from parties appearing pro se will not be submitted through the electronic filing system, but will be scanned by Court personnel and made available for public access on the electronic docket.

E-filing has been around for some time, and is mandatory in most, if not all, federal courts.  It is slowly taking over in the state courts too.  The National Center for State Courts provides information on the state of e-filing in the states, including links to the various court rules.

While e-filing certainly has its strengths, it doesn’t mean that one can procrastinate to file a brief until minutes before it is due.  Be sure to understand the requirements for e-filing in your jurisdiction, including any size limitations and the amount of time it takes to get a login.

August 14, 2017 in Appellate Practice, United States Supreme Court, Web/Tech | Permalink | Comments (0)

Monday, July 10, 2017

The Chief's Advice to Young Graduates

Chief Justice John Roberts made headlines last week.  It wasn’t a hot-button 5-4 opinion at the end of the SCOTUS term that caught the media’s attention this year.  But, it was a piece of writing that the Washington Post called “[t]he best thing Chief Justice Roberts wrote this term.”  So, what was it?  Well, it was a graduation speech delivered to the graduating class at Cardigan Mountain School, where the Chief’s son Jack was graduating ninth grade.

It is hard to believe that the Chief’s son is graduating ninth grade.  I remember seeing him “dance” at the press conference in July 2005, when President Bush announced John Roberts’ nomination to the SCOTUS.  You can watch the video here.  Apparently, young Jack was impersonating Spiderman.

What makes this speech so great? It is certainly funny (see this line:  “You’ve been at a school with just boys. Most of you will be going to a school with girls. I have no advice for you.”). But that is not what makes the speech stand out.  What makes the speech so unique, and what has drawn attention, is the section of the speech where Chief Justice Roberts tells the students that he hopes that they will be “treated unfairly” and have “bad luck.” He says:

Now the commencement speakers will typically also wish you good luck and extend good wishes to you. I will not do that, and I’ll tell you why. From time to time in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice. I hope that you will suffer betrayal because that will teach you the importance of loyalty. Sorry to say, but I hope you will be lonely from time to time so that you don’t take friends for granted. I wish you bad luck, again, from time to time so that you will be conscious of the role of chance in life and understand that your success is not completely deserved and that the failure of others is not completely deserved either. And when you lose, as you will from time to time, I hope every now and then, your opponent will gloat over your failure. It is a way for you to understand the importance of sportsmanship. I hope you’ll be ignored so you know the importance of listening to others, and I hope you will have just enough pain to learn compassion. Whether I wish these things or not, they’re going to happen. And whether you benefit from them or not will depend upon your ability to see the message in your misfortunes.

Chief Justice Roberts does offer the students some advice that I think relates to appellate advocacy.  He reminds the students that, although they are “privileged,” they should not act like it.  Rather, when they get to their new schools, they should “walk up and introduce [themselves] to the person who is raking the leaves, shoveling the snow or emptying the trash. Learn their name and call them by their name during your time at the school.” He also told them to smile and say “hello” to people that they do not recognize when taking walks.  He said, “[t]he worst thing that will happen is that you will become known as the young man who smiles and says hello, and that is not a bad thing to start with.”

This exhortation to treat others with kindness is a lesson that many attorneys could stand to learn.  When I was clerking, there was a story told around the courthouse about some attorneys looking for a courtroom.  One of the judges, who was not in his robe, stopped to help them.  But, when he told them that he only knew the courtrooms by carpet color (which is how all the judges, clerks, and court staff referred to the courtrooms) and not number, the attorneys were quite rude to him.  He wasn’t on their panel, but I do believe that he spoke to the judges who were.  A little kindness to the clerk’s office, the marshals, the janitorial staff, and the unknown person offering help, goes a long way!

The Chief offers some other great advice, so I encourage you to read his full remarks here.

July 10, 2017 in Appellate Advocacy, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, June 19, 2017

Should the Justices Cancel Their Summer Plans?

Under the Rule 10 of the Supreme Court Rules, the Court will only grant a petition for a writ of certiorari for “compelling reasons.” In Rule 10, the Court provides three examples that “indicate the character of the reasons” that the Court considers in granting certiorari:

(a) a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter; has decided an important federal question in a way that conflicts with a decision by a state court of last resort; or has so far departed from the accepted and usual course of judicial proceedings, or sanctioned such a departure by a lower court, as to call for an exercise of this Court's supervisory power;

(b) a state court of last resort has decided an important federal question in a way that conflicts with the decision of another state court of last resort or of a United States court of appeals;

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

On June 1, the Trump Administration filed a petition for a writ of certiorari, asking the Court to hear the case Trump v. International Refugee Assistance Project, which is the Fourth Circuit case challenging President Trump’s Executive Order on visas from certain countries, commonly referred to as the travel ban.  There is also a case in the Ninth Circuit challenging the ban.  In both cases, the respective district courts enjoined the ban and the circuit courts largely affirmed those decisions. 

Should the Court grant certiorari in these cases?  My friend Professor Josh Blackman has argued in a June 11 op-ed in the New York Times that the Court should indeed grant certiorari and provide “finality.”  Professor Blackman argues that the Court should hear arguments promptly and issue a decision “as soon as practicable.” He cites a several examples of separation of powers cases that were decided quickly by the Court (within about a month), including the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore.  Professor Blackman argues:

The legal status of President Trump’s executive order, and indeed that of his entire administration, needs finality, sooner rather than later. Even if five justices plan to strike down the executive order, they should do so now, and not in the fall, or worse, one year from now. The lower courts desperately need guidance. Should judges look to Mr. Trump’s Twitter feed to determine his true intent? Should the judiciary privilege statements from the commander in chief that conflict with those of the Justice Department? Are all of Mr. Trump’s actions that affect Muslims, at home and abroad, perpetually tainted by his campaign statements? If the Supreme Court signals that the answer to those questions is yes, then the lower courts may declare open season on this administration in contexts far beyond the travel ban. If a more circumspect Supreme Court signals that the answer is no, then, perhaps, the lower courts will fall into line.

Under Professor Blackman’s reasoning, the Court is facing “compelling reasons,” envisioned in Rule 10—namely, “an important question of federal law that has not been, but should be, settled by this Court.” 

While I sympathize with the argument, I worry that “haste makes waste” or, more accurately, bad constitutional law.  Many of the cases that been rushed through the Court on big separation of powers issues result in highly fractured decisions (think the Pentagon Papers Case, the Steel Seizure Case, and Bush v. Gore) and/or a lack of acceptance by a significant portion of We the People (think Bush v. Gore).  I fear that any overly speedy SCOTUS decision in the travel ban cases would end up with a reputation like Bush v. Gore.  Perhaps even a non-speedy decision would suffer the same fate.  At a minimum, if the Court does decide to take the case, I hope that they devote all summer to it, not just July, even if it means August in D.C.  I emailed this post to Professor Blackman before posting it and he said that he does not mind the Court taking August to decide the cases either, but he does not want to see the issue linger on for six months.  Either way, we should know soon (maybe even later today) if the Court plans on hearing the case.

June 19, 2017 in Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, June 15, 2017

Justice Gorsuch's first Supreme Court opinion is unanimous

This week, the newest justice on the United States Supreme Court issued his first authored opinion, Henson v. Santander Consumer USA Inc. The topic was debt collection, perhaps not a scintillating topic for most, but Justice Gorsuch opened with a catchy couple of lines - the most colorful of the opinion: 

Disruptive dinnertime calls, downright deceit, and more besides drew Congress’s eye to the debt collection industry. From that scrutiny emerged the Fair Debt Collection Practices Act, a statute that authorizes private lawsuits and weighty fines designed to deter wayward collection practices.

The rest of the decision centers on statutory interpretation, and following in the footsteps of Justice Scalia as he does, Justice Gorsuch's textual approach does not diverge from that of the late justice. The issue in the case was whether a third party purchaser of a debt can fall within the statutory definition of a "debt collector." Because the Fair Debt Collection Practices Act defines a debt collector as one who collects a debt on behalf of another, the defendant in the case could not be called a debt collector, and so did not violate the Act. The petitioner sought to use grammatical reinterpretations of the Act's wording that did not comport with the plain meaning, and failing that, asserted policy arguments. But Justice Gorsuch did not buy it, saying:

All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 561 U. S. 320, 334 (2010) (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodri- guez v. United States, 480 U. S. 522, 526 (1987) (per curiam) (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pur- sues its [stated] purpose[ ] at all costs.” Id., at 525–526. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law but will presume more modestly instead “that [the] legis- lature says . . . what it means and means . . . what it says.” Dodd v. United States, 545 U. S. 353, 357 (2005) (internal quotation marks omitted; brackets in original).

The opinion writer has been criticized for not being sensitive to a broader policy of consumer protections, and while that may be true, it was a unanimous Court that agreed the statute's definition of debt collector did not include the type of defendant before the Court. The Court, all nine now, agreed upon one thing - the plain meaning of the statute as written. Further, the Court did not veer off the beaten path. It affirmed the decision of the Fourth Circuit, which had affirmed the decision of the lower district court. It seems that this reading of the statute wasn't any rogue opinion, and instead placed the responsibility of writing clear law back in the hands of Congress. 

June 15, 2017 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, December 9, 2016

Appellate Advocacy Blog Weekly Roundup December 9 2016

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As  we do every Friday, the Appellate Advocacy Blog presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

Ruling in Samsung v. Apple

On Tuesday, a unanimous Supreme Court ruled in favor of Samsung in Samsung v. Applethe patent infringement suit brought by Apple, sending the case back to the Federal Circuit for further consideration.  In the case, Apple alleged that Samsung infringed on patents covering specific design elements of Apple's iPhone, including the rectangular front face with rounded corners and colorful grid of icons. Federal law provides that companies found to have infringed design patents on an "article of manufacture" are liable for their total profits. The lower court had awarded Apple $399 million in damages for Samsung's design patent infringement.  In the Supreme Court opinion, Justice Sotomayor wrote that the operative phrase in the statute, "article of manufacture," could sometimes be the entire product (the phone) and sometimes be the components found to have infringed the design patent. The Supreme Court opinion held that the Federal Circuit erred in ruling that the "article of manufacture" must always be the end product (the phone), but did not resolve whether the article of manufacture in the case was the whole phone or parts of it. 

Coverage:

New York Times

Reuters

SCOTUSBlog

Ruling in Salman v. United States

On Tuesday, the Supreme Court unanimously ruled in Salman v. United States, a significant insider trading case that raised the question of whether gifts of confidential information from business insiders to family members without direct financial benefit violate securities law. The Court ruled in favor of prosecutors, ruling that gifts to friends or relatives, whether in the form of cash or a tip of information, sufficiently "benefit" the insider to be considered a violation of securities law.

Coverage:

New York Times

Fortune

Bloomberg

SCOTUSBlog

 

Takeaways from 2016 SCOTUS Oral Arguments So Far:

Adam Feldman writes on the Empirical SCOTUS blog about "Four Takeaways From this Term's 2016 SCOTUS Oral Arguments" so far. There is a wealth of great information about the Justices' interactions with one another and with advocates during the first 1/3 of this term's oral arguments, including which Justices tend to speak the most (or the least), the issues that interest the Justices the most, and the tendencies of some of the best and most frequent advocates to appear before the Court.

Highlights from Appellate Twitter:  #PracticeTuesday

On Tuesdays the brilliant tweeters of #AppellateTwitter post a variety of useful tips, strategies, guidelines, advice, etc.  Here are a few of the highlights from this week, where the topic was mythbusting -- conventional wisdom with which experienced appellate practitioners disagree:

  • Sean Marotta (@smmarotta) argued against the myth that a law student should take "any" clerkship, regardless of location, judge, etc.  He argued that young graduates should definitely consider costs to family, significant others, and other factors when deciding whether a clerkship is really the right opportunity to pursue.
  • Rachel Gurvich (@RachelGurvich) argued against one of my personal favorite myths, that being on Law Review is some kind of prerequisite to a successful legal career. I always tell students that law review is not for everyone and is not a magic bullet -- the key is to find something that catches a potential employer's eye and once you get your foot in the door, you can explain why you didn't go the law review route.
  • Bryan Gividen (@BryanGivi) argued against the myth that a young associate should never so no to an assignment -- because if you don't learn how to say no to assignments that you cannot perform well, you are sure to start alienating colleagues and clients with poor work product.
  • Jennifer Romig (@JenniferMRomig) argued against one that is dear to my heart, as an educator -- the myth that law school conclusively reveals whether someone will be a good lawyer.  I've known many students who were "average" or even below in performance in law school, but went on to be fine and highly successful members of the legal community -- even some who took a couple of tries to pass the bar exam. I've known students who excelled in classes, but not so much in the real world. There's just more to it than that.
  • Finally, Supreme Court Places (@SCOTUSPlaces) called for the debunking of a myth that is near and dear to the hearts of anyone who has ever clerked for an appellate court -- "There must be a case for that simple, seemingly incontrovertable proposition."  It's amazing how often you think that but research seems to come up empty!

December 9, 2016 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)