Appellate Advocacy Blog

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part Two

Last month, I noted two April 8, 2022 federal Court of Appeal decisions on attorney sanctions where the courts reminded us claims of experience are no excuse for improper behavior.  I focused on the Fifth Circuit’s reminder:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  This month, I’ll discuss the Seventh Circuit’s order upholding $17,000 of sanctions against a “seasoned litigator” who balked at being required to complete “demeaning” CLE classes.  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022). 

Like the Fifth Circuit, the Seventh Circuit rejected an appeal of a sanctions order despite counsel’s claims of competence and experience.  Bovinett (7th Cir. Apr. 8 2022); see Debra Cassens Weiss, “Seasoned Litigator” Fails to Persuade 7th Circuit that Sanction Was Demeaning and Too Harsh, ABA Journal (Apr. 14, 2022).  In a Northern District of Illinois case involving use of an actor’s photo by advertisers, the district court initially dismissed many claims against the out-of-state advertisers for lack of personal jurisdiction.  Bovinett at 2.  Attorney Mark Barinholtz, representing the actor, then asserted the defendants had several contacts with Chicago, and the court “allowed the parties to take limited discovery about personal jurisdiction.”  Id. at 2-3.  The court “soon granted [a defendant’s] motion to compel discovery because [the actor’s] responses were vague and evasive.”  Id. at 3.  For example, Barinholtz “answered every request for admission by stating [the actor] was ‘not in possession of sufficient knowledge or information to admit or deny.’”  Id.  After the court entered an order compelling discovery, the actor, through Barinholtz, replied “only that [the actor] lacked ‘direct, in person knowledge’ of the subjects.“  Id.  In response, the court dismissed much of the complaint and eventually granted the defendants’ motions for sanctions.  Id. 

The district court found several grounds for sanctions, noting “Barinholtz appeared to have made false assertions to establish personal jurisdiction, [and e]ven if he did not do so in bad faith, . . .  Barinholtz inexcusably failed to investigate the jurisdictional facts.”  Id.  The court  “ordered Barinholtz to pay about $17,000 (much less than the defendants’ [$661,000] request) to compensate the defendants for time spent on the motions to compel and for sanctions.”  Id.  As the Seventh Circuit explained, the district court “also ordered Barinholtz to attend 40 hours of continuing legal education: half ‘on federal civil procedure, including at least one course related to personal jurisdiction,’ and half on “professional conduct, . . . such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.’”  Id. 

In response, Barinholtz moved for what he styled an extension of time either “to file notice of appeal and/or to request other post-order relief,” and the district court granted the motion in part, extending the time to appeal until October 13, 2020.  Id. at 3-4.  Barinholtz did not immediately file a notice of appeal, but filed an October 13, 2020 “motion to reconsider in which he focused on the merits of the lawsuit and his already-raised objections to sanctions.”  Id. at 4.   He again argued that the court had personal jurisdiction and claimed “Rules 11 and 37 did not permit sanctions in this context, [plus] sanctions were ‘unfair’ because the defendants and Bovinett had teamed up to get Barinholtz to pay costs and fees.”  Id. 

Notably, Barinholtz “also insisted that the defendants deserved sanctions,” based on the alleged “teaming up” against him, “and that requiring him, a seasoned litigator, to attend legal-education courses [was] demeaning.”  Id.  As the Seventh Circuit explained, he “requested a reduced monetary sanction (or none at all) and fewer hours of continuing education.”  Id.  The district court denied the motion to reconsider, finding “Barinholtz failed to identify any legal or factual error in the sanctions ruling and instead repeated previously rejected arguments.”  Id.  The court declined to address what it called “these ‘disheartening’ arguments” again, “and repeated that sanctions were warranted for his ‘egregious’ conduct.”  Id.  Barinholtz filed a notice of appeal within thirty days of the reconsideration order, but after October 13, 2020.

The Seventh Circuit opened its order by explaining Barinholtz “incurred sanctions for repeatedly asserting baseless claims and disregarding a court order. He moved, unsuccessfully, for reconsideration and then filed a notice of appeal . . . timely only with respect to the denial of the motion to reconsider.”  Id. at 1-2.  According to the court:  “[b]ecause [Barinholtz] timely sought and received an extension of time, his appeal was due October 13. But Barinholtz missed this deadline. And his motion to reconsider had no effect on his time to appeal sanctions.  Id. Accordingly, the notice of appeal filed after October 13 was only timely for the denial of the motion for reconsideration.  Id.

The court then reviewed “whether the judge unreasonably denied Barinholtz’s motion to reconsider sanctioning him,” finding no abuse of discretion.  Id. at 5-6.  The Seventh Circuit stressed “Barinholtz lacked a good reason for vacating the sanctions,” “did not cogently explain why his conduct was not sanctionable,” “did not demonstrate any mistake of law or fact in the sanctions order,” and also “provided no excuse or explanation—or apology—for his actions.”  Id. at 5.  For example, “he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against [a defendant] after it showed that it had no ties to Illinois.”  Id. 

According to the court, the trial “judge also did not err in rejecting Barinholtz’s argument that [the actor] ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs” because the “parties’ settlement agreement states that they must bear their own costs and fees.”  Id. at 6.  Instead, the “amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct.”  Id.

Finally, Barinholtz contended the court should have imposed “fewer than 40 hours of continuing legal education” based on his “decades of experience.”  Id.  However, the court reasoned “the requirement directly addresses the sanctionable conduct:  Barinholtz raised baseless allegations about [defendant’s Chicago] involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.”  Id.

Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.”  Cassens Weiss, “Seasoned Litigator.”  He explained he will probably seek rehearing and stated:  “In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances.”  Id.

I will keep you posted on any updates in this matter, and in the Fifth Circuit’s ruling in Scott.  In the meantime, both cases give us all excellent reminders about competent representation and  sanctions.

Appellate Advocacy Blog Weekly Roundup Friday, May 20

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Supreme Court News and Opinions:

On Monday, the Court issued its decision in Patel v. Garland, an immigration removal case in which Petitioner, who had been in the country for nearly 30 years, applied for an adjustment of status seeking lawful permanent residency.  Petitioner had misrepresented his citizenship status when checking a box on an application for a driver's license, and despite his assertions that he had mistakenly checked the box and had not intentionally misrepresented his status, immigration officials and the lower courts denied relief.  In its decision, the Court held that federal courts are without jurisdiction to review factual findings of the immigration court, regardless of how clearly erroneous the findings might be.  Justice Barrett wrote for the majority and was joined by Chief Justice Roberts and Justices Kavanaugh, Alito, and Thomas.  Justice Gorsuch wrote a dissent, joined by Justices Breyer, Sotomayor, and Kagan, in which he emphasized that the Court's decision removes a safeguard for noncitizens and adopts a rationale that not even the government was willing to advance, relying on arguments presented only by an amicus.

• • Court's opinion
  • More from SCOTUSblog
  • More from CNN
  • More from Washington Post

On Monday, the Court issued its opinion in FEC v. Cruz, striking down a federal campaign-finance law limiting when and how candidates can use post-election contributions to repay loans that they made to their own campaigns pre-election.  The Court upheld a lower court ruling that the law limiting candidates to only using up to $250,000 for such purposes was unconstitutional.

• • Court's opinion
  • More from SCOTUSblog
  • More from BuzzFeed

Federal Appellate Court News and Opinions:

On Monday, the Eighth Circuit Court of Appeals issued its opinion in a case concerning an Iowa law banning Iowa school districts from issuing mask mandates.  The court lifted an earlier court order blocking the state law, ruling that the order had become moot because of lower coronavirus transmission rates and wider availability of vaccines.  The opinion emphasized that the law banning mandates was not applicable if a school district needed to mandate masks to comply with another federal or state law.  The suit arose when a group of parents of students with disabilities filed suit as students returned to school at the beginning of the last school year amid rising coronavirus cases, challenging the law banning mandates that the parents asserted were needed as an accommodation for the students with disabilities under federal law.

• • Court's opinion
  • More from the Des Moines Register

State Appellate Court News and Opinions:

 

Appellate Advocacy Tips and Tricks:

The ABA published an article in February titled, "Top Tips for Top-Notch Oral Argument Answers."  The article was authored by Robert Montgomery, the Director of Upper Level Writing at the Campbell University School of Law.  HT to Daniel Schramm

Appellate Jobs:

The Supreme Court is taking applications for a Deputy Legal Counsel position, a full-time position in the Office of Legal Counsel of the Supreme Court of the United States, for an initial appointment period of two years.  Closing date for applications is Wednesday, May 25, 2022.

• • More Information

Writing like Justice Kagan, part I

Inspired by Ross Guberman, who has a long-running series like this, I am going to try my hand at highlighting some effective writing techniques that I noticed while reading Justice Kagan's opinion in Gundy v. United States this term. 

1., 2. Syllogistic open and bottom line up front: "The nondelegation doctrine bars Congress from transferring its legislative power to another branch of Government. This case requires us to decide whether 34 U.S.C. § 20913(d), enacted as part of the Sex Offender Registration and Notification Act (SORNA), violates that doctrine. We hold it does not. Under § 20913(d), the Attorney General must apply SORNA’s registration requirements as soon as feasible to offenders convicted before the statute’s enactment. That delegation easily passes constitutional muster."

An effective legal syllogism--usually used in questions presented--has a little bit of law, a few choice facts, and a conclusion that is either express or implied. Here, Justice Kagan gives a little law on the nondelegation doctrine, outlines a few facts that show this case does not fit that law, then tells the reader the conclusion. Also, as a practitioner, I appreciate getting the court's conclusion as soon as I start reading--I hate scanning for a holding in one of my cases.

3. Make it about people: "The basic registration scheme works as follows. A “sex offender” is defined as “an individual who was convicted of” specified criminal offenses: all offenses “involving a sexual act or sexual contact” and additional offenses “against a minor.”34 U.S.C. §§ 20911(1), (5)(A), (7). Such an individual must register—provide his name, address, and certain other information—in every State where he resides, works, or studies. See §§ 20913(a), 20914. And he must keep the registration current, and periodically report in person to a law enforcement office, for a period of between fifteen years and life (depending on the severity of his crime and his history of recidivism). See §§ 20915, 20918."

Instead of just talking about what the statute says, Justice Kagan walks through what the statue requires a person to do. This is much more engaging than just talking about the statute in the abstract.

4., 5. Tell 'em what you told 'em and use natural labels: "The provision states: 'The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter ... and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).' Subsection (d), in other words, focuses on individuals convicted of a sex offense before SORNA’s enactment—a group we will call pre-Act offenders."

Nobody likes block quotes, but sometimes you need them. When you use them, do what Justice Kagan does--use lead-ins and or after-explanations so that the reader will get the gist of the quote even if they skip it (which is likely). She also naturally weaves in labels for things ("a group we will call...") rather than using the stilted "hereinafter."

6. Use colloquial language when appropriate: "So we have held, time and again, that a statutory delegation is constitutional as long as Congress 'lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.'"

Justice Kagan could have easily said something like "repeatedly" or "long," but "time and again" adds emphasis without distracting from the point. It's refreshing, and helps speed the reader along.

I have a lot more thoughts on this opinion. More next week.

 

 

 

 

 

Do as I do....

Not too long ago I was driving in the car with both junior associates. I was talking to my spouse on the phone (safely via hands free), and in the course of the conversation I used the "s" word--"stupid." An adorable little 4 year old voice called out from the back seat, "Mommy, we don't say 'stupid.'" To which I said, "you are right, I am so sorry." 

This little episode, which has sadly happened more than once, got me thinking about the advice that judges give attorneys. Judges are often very quick to give excellent advice to attorneys, but then fail to follow their own advice in writing opinions. Now, I know that opinions are different from briefs, but despite these differences, I think that there are some pieces of their own advice that judges should follow.

Advice #1: Be Brief

Just last week I read a story that included advice from Chief Justice John Roberts on keeping briefs brief. When I teach appellate advocacy, I tell my students that the one thing that ALL judges agree on is briefs are too long. But what about judicial opinions? Oh my! I decided to do an informal survey of the most recent opinions posted on appellate court websites. Here is what I have for published or precedential opinions:

• SCOTUS, Shurtleff v. Boston--49 pages
• 1st Circuit,  Coughlin v. Lac du Flambeau Band of Lake Superior Chippewa Indians--56 pages
• 2d Circuit, United States v. Peguero--84 pages
• 3d Circuit, Gaines v. Superintendent--19 pages
• 4th Circuit, United States v. Thomas--17 pages 
• 5th Circuit, Owens v. Circassia Pharmaceuticals--30 page
• 6th Circuit, In re Automotive Parts Antitrust Litigation--16 pages
• 7th Circuit, Canter v. AT&T Umbrella Benefit Plan No.--16 pages
• 8th Circuit, A.I.G. Agency, Inc. v. American International Group--10 pages
• 9th Circuit, A.C. v. Erica Cortez--12 pages
• 10th Circuit, Reserve Mechanical Corp. v. Commissioner IRS--72 pages
• 11th Circuit, Global Marine Exploration, Inc. v. France--26 pages
• D.C. Circuit, Pham v. NTSB--14 pages
• Federal Circuit, Atlanta Gas Light Company v. Bennett Regulator Guards, Inc.--23 pages

While this endeavor is highly unscientific (I am sure the empiricists are cringing), my purpose was to get just a random snapshot. This snapshot produced an average of 31.7 pages. Half of the opinions were over 20 pages. Another snapshot would have different results--easily higher, perhaps lower.

What is the problem with long opinions? Well, Luke Burton, a career clerk on the Eighth Circuit has discussed them here. The problems he lists include increased (1) litigation costs, (2) misinterpretation of opinions, and (3) difficulty for the parties in understanding the decision. While all of these are real problems, I think that two and three should especially catch the attention of judges, which leads me to my second piece of advice that isn't always followed.

Advice #2: Write for your audience.

Judges like to remind brief writers to write for judges and their clerks, not the client and not the partner. Likewise, judges need to remember their audience--the parties. Sure, judicial opinions, especially at the highest court in a jurisdiction, can introduce rules that inform and impact others, but at its core, a judicial opinion seeks to resolve a dispute between two (or more) parties. And while these parties may be sophisticated, they might not be lawyers. Therefore, judicial opinions should be written in a clear, concise manner that is largely devoid of legalese. 

Have you ever visited a doctor and had that person explain your ailment in medical terms that you could not understand? I have, and it is really frustrating. Doctors and lawyers deal with some of the most private, trying, and important matters in a person's life. Just like people should be able to understand their diagnosis from a doctor, parties should be able to read judicial decisions and understand the outcome and reasoning.

Advice #3: Don't hide the ball.

Based off of advice in Winning on Appeal, I always tell my students that their appellate briefs should not be like the latest show they are binge watching on Netflix.  It isn't a murder mystery where we wonder whodunnit or a Regency romance where we ponder who the protagonist will marry. In a brief the error being appealed, the proper legal standard, and the desired result should be perfectly clear and upfront in the brief. Some judges encourage advocates to use a well-written introduction to present these issues. 

Likewise, judges can and should use a well-written introduction to set out the key issues being resolved and the outcome. I remember when NFIB v. Sebelius was decided. When one starts reading that decision the result is not immediately apparent. It takes some deep reading (and nose counting) to figure out what is going on. And while that might be an extreme example, a good trial or appellate opinion sets out clearly in the beginning the issues in the case and the result before diving into the facts and reasoning.

Advice #4: About those footnotes.

Last, but not least, judges need to follow their own advice about footnotes. Just like textual footnotes detract from briefs, they also detract from opinions and contribute to the three problems identified above. Incidentally, I am also team #nocitationfootnotes, but I know that reasonable minds disagree on that point.

I get that many judges, especially trial judges, are working on huge caseload and tight deadlines. I also get that when attorneys don't follow this advice it makes it even harder for judges to do their jobs. But, perhaps modeling this advice will help slowly move the profession into following it as well.

A Plea for Pro Bono Service

In terms of pro bono service, our profession has a long way to go.  

Model Rule of Professional Conduct 6.1 makes clear that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay."  To that end, the Rule says that lawyers "should aspire to render at least fifty (50) hours of pro bono publico legal services per year." 

Let's be honest, though: 50 hours is pretty paltry.  If you take a two-week vacation, you can still satisfy Rule 6.1 with just one pro bono hour per week.  Even for busy lawyers, that's hardly "aspir[ational]."  Yet a large majority of lawyers aren't even approaching that bare-bones ethical minimum.  In 2017, the ABA's Standing Committee on Pro Bono and Public Service conducted a survey of over 47,000 lawyers across 24 states.  Here's what they found:

• Barely half of responding lawyers provided any pro bono services in 2016.
• Not even 20% of responding lawyers fulfilled Rule 6.1's minimum requirement.
• Roughly one in five responding attorneys reported never having provided pro bono services of any kind.  (Read: Roughly one in five lawyers admitted to having committed professional misconduct.)

And the problem isn't that there's too little pro bono work to go around.  The 2017 Justice Gap Report, published by the Legal Services Corporation, revealed that in 2016, 86% of civil legal problems reported by low-income Americans received inadequate or no legal assistance.  And there's good reason to believe that the pandemic has exacerbated that access-to-justice gap.  

As attorneys, we have a state-sanctioned monopoly on legal services.  If we don't work to close the access-to-justice gap, no one will.  But across the board, we are falling far short of our professional and moral obligations.  We must do better.  

Denying Unenumerated Rights

The leaked draft SCOTUS opinion overturning Roe v. Wade[1] shares a hostility to unenumerated rights similar in kind to what some Senators expressed during the confirmation hearing of soon-to-be Justice Ketanji Brown Jackson. Critics often say that unenumerated rights lack legitimacy because they have no specific textual anchors. Instead, the criticism goes, they reflect nothing more than a judge’s political views treated as constitutional gloss – except, of course, when the critic likes the result or cannot deny the right without seeming foolish or racist.

To be sure, Justice Alito’s Dobbs draft did not deny that implied rights exist. After noting that abortion is not in the Constitution, a factual statement that can also be said of separation of powers, Alito limited what he dubbed “implied rights” to those “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty,”[2] a judge-made formulation that does not by itself cabin the interpretative exercise and leads to debates about history. In some hands, it freezes rights to narrow conceptions that address specific problems familiar to those responsible for the Bill of Rights when ratified in 1791.

Others, however, recognize that the quest for a “more perfect union” involves understanding root concepts and applying them to novel modern fact patterns. That is what Justice Kennedy attempted in Obergefell v. Hodges,[3] the same-sex marriage opinion in which Alito’s dissent argued, as in the Dobbs draft, that the issue belongs to the individual states and not to constitutional argument.[4]

In evaluating a right to same-sex marriage, Kennedy noted that “Loving [v. Virginia[5]] did not ask about a ‘right to interracial marriage.’”[6] Certainly, interracial marriage was neither “deeply rooted in this nation’s history and tradition” nor “implicit in the concept of ordered liberty.” Instead of looking for historical validation, Kennedy wrote that Loving and other marriage cases “inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”[7]

The determination of whether “liberty’ is limited to conceptions based on experience in 1791 or even 1868, when states ratified the Fourteenth Amendment, or more expansively read to apply analogous concepts to modern questions provides the basis for the real debate. The Framers anticipated that some might deny the existence of unenumerated rights and provided explicit constitutional text to rebut the argument: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[8] Doing so, however, provided no interpretative guide.

To James Madison, the Ninth Amendment’s simple sentence embodied "the great residuum" of rights that people possessed.[9] He told the First Congress in defense of his draft bill of rights that Americans need not fear that an omission means denial. He pointed to the British common law we inherited, where advocates of individual liberties as barriers to government overreach were able to secure a wide range of rights in Britain without written protections.[10] In doing so, Madison sought to prevent those interpreting the Constitution’s rights regime from drawing an adverse inference from absence in the text.

It is also important to keep in mind another aid courts have used in construing the Constitution that applies with equal force to unenumerated rights. As Chief Justice William Howard Taft wrote, those who framed the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[11] They valued the interpretative craft that Lord Edward Coke brought to Magna Carta, transforming it from exemptions from royal control that largely benefited the landed class into a celebrated bulwark of liberty that had a special appeal and application to the grievances of colonial America.[12]

That type of contextual interpretation bound to experience was endorsed by Madison. During a congressional debate about constitutional limitations relating to the Jay Treaty, Madison expressed astonishment that members would ask him to explain the Constitutional Convention’s take on the issue before the House. He explained that, based on agreements to disagree and his own doubts about his ability to reconstruct his thinking during the Convention, the views of the framers “could never be regarded as the oracular guide in expounding the Constitution.”[13]

If we are left to our own wisdom in attempting to discern how timeless principles apply to modern dilemmas, then we confront a very human problem of reading an 18^th century document and the history behind it with 21^st century eyes and values. Thus, those who seek to empower parents with more power to object to school curriculum insist on an unenumerated right discovered in Meyer v. Nebraska,[14] and Pierce v. Soc’y of the Sisters,[15] holding that parents have a right to direct the education of their children. The decisions placed the “liberty” at issue in the Fourteenth Amendment’s Due Process Clause[16] and read liberty broadly. Meyer described liberty to embrace more than “merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”[17] State courts had reached similar conclusions on parental rights, not based on their state constitutions, but on their readings of the common law.[18]

Interestingly, Meyer’s and Pierce’s use of family to establish a parental educational right provided building blocks that established the fundamental nature of the right to marry, even though nothing in the Constitution addresses marriage[19] or education. Still, the common law did provide a basis for marriage.[20] It is the use of a common-law methodology that imposes the requirement of a search warrant to prevent unlawful entry into a home as well as the use of remote modern eavesdropping devices that involve no physical entry.

Similarly, the tools we use to understand the application of unenumerated rights must be read to embrace the underlying concept of liberty in light of modern antidiscrimination principles, the organic nature of the common law, and their place in understanding our Constitution. While such an approach is not as unbounded as it might seem, it is also not outcome-determinative. Inevitably, we depend on the wisdom of those we entrust with interpreting our rights to learn from the lessons of the past and remain mindful of the impact that can accompany radical reinterpretation, whether it leads to novel decisions or retrenchment.

In the end, Judge Learned Hand’s description of “The Spirit of Liberty” may best explain the scope of our liberties. Stating that he was unable to define the spirit of liberty, he still supposed that it embodies the idea of uncertainty being “not too sure that it is right;” “seeks to understand the mind of other men and women;” and “weighs their interests alongside its own without bias.”[21] Most importantly:

    Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no     court to save it.[22]

 

[1] 410 U.S. 113 (1973).

[2] Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Interestingly, earlier in Glucksberg, the Court describes the test in all due process cases as being an examination of “our Nation's history, legal traditions, and practices.” Id. at 710. Many subsequent formulations, like the Dobbs draft, leave out “practices.”

[3] 576 U.S. 644 (2015).

[4] Id. at 736 (Alito, J., dissenting).

[5] 388 U.S. 1 (1967).

[6] Obergefell, 576 U.S. at 671.

[7] Id.

[8] U.S. Const. amend. ix.

[9] James Madison, Speech Introducing Bill of Rights (June 8, 1789), available at http://press-pubs.uchicago.edu/founders/documents/bill_of_ rightss11.html (linking unenumerated rights to a constitutional framework that created a federal government of limited powers).

[10] 1 Annals of Cong. 454 (Jun. 8, 1789).

[11] Ex parte Grossman, 267 U.S. 87, 109 (1925).

[12] See Klopfer v. North Carolina, 386 U.S. 213, 225 (1967).

[13] 5 Annals of Cong. 775-76 (Apr. 6, 1796).

[14] 262 U.S. 390 (1923).

[15] 268 U.S. 510 (1925).

[16] There is a substantial argument that a better source of implied liberties is the Privileges and Immunities Clause, read in conjunction with the Ninth Amendment, but that debate, which has not won a majority on the Supreme Court, is beyond the scope of this post.

[17] Meyer, 262 U.S. at 399.

[18] See, e.g., Sch. Bd. Dist. No. 18, Garvin County v. Thompson, 103 P. 578, 579, 582 (Okla. 1909) (holding that a school may not expel students, who at the direction of their parents, refused to participate in singing lessons, and holding that “[a]t common law the principal duties of parents to their legitimate children consisted in their maintenance, their protection, and their education,” and that the parent’s right “is superior to that of the school officers and the teachers.”).

[19] See Obergefell, 576 U.S. at 667.

[20] See Meister v. Moore, 96 U.S. 76, 81, 24 L. Ed. 826 (1877).

[21] Learned Hand, “The Spirit of Liberty” (1944).

[22] Id.

Denying Unenumerated Rights

The leaked draft SCOTUS opinion overturning Roe v. Wade[1] shares a hostility to unenumerated rights similar in kind to what some Senators expressed during the confirmation hearing of soon-to-be Justice Ketanji Brown Jackson. Critics often say that unenumerated rights lack legitimacy because they have no specific textual anchors. Instead, the criticism goes, they reflect nothing more than a judge’s political views treated as constitutional gloss – except, of course, when the critic likes the result or cannot deny the right without seeming foolish or racist.

To be sure, Justice Alito’s Dobbs draft did not deny that implied rights exist. After noting that abortion is not in the Constitution, a factual statement that can also be said of separation of powers, Alito limited what he dubbed “implied rights” to those “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty,”[2] a judge-made formulation that does not by itself cabin the interpretative exercise and leads to debates about history. In some hands, it freezes rights to narrow conceptions that address specific problems familiar to those responsible for the Bill of Rights when ratified in 1791.

Others, however, recognize that the quest for a “more perfect union” involves understanding root concepts and applying them to novel modern fact patterns. That is what Justice Kennedy attempted in Obergefell v. Hodges,[3] the same-sex marriage opinion in which Alito’s dissent argued, as in the Dobbs draft, that the issue belongs to the individual states and not to constitutional argument.[4]

In evaluating a right to same-sex marriage, Kennedy noted that “Loving [v. Virginia[5]] did not ask about a ‘right to interracial marriage.’”[6] Certainly, interracial marriage was neither “deeply rooted in this nation’s history and tradition” nor “implicit in the concept of ordered liberty.” Instead of looking for historical validation, Kennedy wrote that Loving and other marriage cases “inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”[7]

The determination of whether “liberty’ is limited to conceptions based on experience in 1791 or even 1868, when states ratified the Fourteenth Amendment, or more expansively read to apply analogous concepts to modern questions provides the basis for the real debate. The Framers anticipated that some might deny the existence of unenumerated rights and provided explicit constitutional text to rebut the argument: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[8] Doing so, however, provided no interpretative guide.

To James Madison, the Ninth Amendment’s simple sentence embodied "the great residuum" of rights that people possessed.[9] He told the First Congress in defense of his draft bill of rights that Americans need not fear that an omission means denial. He pointed to the British common law we inherited, where advocates of individual liberties as barriers to government overreach were able to secure a wide range of rights in Britain without written protections.[10] In doing so, Madison sought to prevent those interpreting the Constitution’s rights regime from drawing an adverse inference from absence in the text.

It is also important to keep in mind another aid courts have used in construing the Constitution that applies with equal force to unenumerated rights. As Chief Justice William Howard Taft wrote, those who framed the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[11] They valued the interpretative craft that Lord Edward Coke brought to Magna Carta, transforming it from exemptions from royal control that largely benefited the landed class into a celebrated bulwark of liberty that had a special appeal and application to the grievances of colonial America.[12]

That type of contextual interpretation bound to experience was endorsed by Madison. During a congressional debate about constitutional limitations relating to the Jay Treaty, Madison expressed astonishment that members would ask him to explain the Constitutional Convention’s take on the issue before the House. He explained that, based on agreements to disagree and his own doubts about his ability to reconstruct his thinking during the Convention, the views of the framers “could never be regarded as the oracular guide in expounding the Constitution.”[13]

If we are left to our own wisdom in attempting to discern how timeless principles apply to modern dilemmas, then we confront a very human problem of reading an 18^th century document and the history behind it with 21^st century eyes and values. Thus, those who seek to empower parents with more power to object to school curriculum insist on an unenumerated right discovered in Meyer v. Nebraska,[14] and Pierce v. Soc’y of the Sisters,[15] holding that parents have a right to direct the education of their children. The decisions placed the “liberty” at issue in the Fourteenth Amendment’s Due Process Clause[16] and read liberty broadly. Meyer described liberty to embrace more than “merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”[17] State courts had reached similar conclusions on parental rights, not based on their state constitutions, but on their readings of the common law.[18]

Interestingly, Meyer’s and Pierce’s use of family to establish a parental educational right provided building blocks that established the fundamental nature of the right to marry, even though nothing in the Constitution addresses marriage[19] or education. Still, the common law did provide a basis for marriage.[20] It is the use of a common-law methodology that imposes the requirement of a search warrant to prevent unlawful entry into a home as well as the use of remote modern eavesdropping devices that involve no physical entry.

Similarly, the tools we use to understand the application of unenumerated rights must be read to embrace the underlying concept of liberty in light of modern antidiscrimination principles, the organic nature of the common law, and their place in understanding our Constitution. While such an approach is not as unbounded as it might seem, it is also not outcome-determinative. Inevitably, we depend on the wisdom of those we entrust with interpreting our rights to learn from the lessons of the past and remain mindful of the impact that can accompany radical reinterpretation, whether it leads to novel decisions or retrenchment.

In the end, Judge Learned Hand’s description of “The Spirit of Liberty” may best explain the scope of our liberties. Stating that he was unable to define the spirit of liberty, he still supposed that it embodies the idea of uncertainty being “not too sure that it is right;” “seeks to understand the mind of other men and women;” and “weighs their interests alongside its own without bias.”[21] Most importantly:

    Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no     court to save it.[22]

 

[1] 410 U.S. 113 (1973).

[2] Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Interestingly, earlier in Glucksberg, the Court describes the test in all due process cases as being an examination of “our Nation's history, legal traditions, and practices.” Id. at 710. Many subsequent formulations, like the Dobbs draft, leave out “practices.”

[3] 576 U.S. 644 (2015).

[4] Id. at 736 (Alito, J., dissenting).

[5] 388 U.S. 1 (1967).

[6] Obergefell, 576 U.S. at 671.

[7] Id.

[8] U.S. Const. amend. ix.

[9] James Madison, Speech Introducing Bill of Rights (June 8, 1789), available at http://press-pubs.uchicago.edu/founders/documents/bill_of_ rightss11.html (linking unenumerated rights to a constitutional framework that created a federal government of limited powers).

[10] 1 Annals of Cong. 454 (Jun. 8, 1789).

[11] Ex parte Grossman, 267 U.S. 87, 109 (1925).

[12] See Klopfer v. North Carolina, 386 U.S. 213, 225 (1967).

[13] 5 Annals of Cong. 775-76 (Apr. 6, 1796).

[14] 262 U.S. 390 (1923).

[15] 268 U.S. 510 (1925).

[16] There is a substantial argument that a better source of implied liberties is the Privileges and Immunities Clause, read in conjunction with the Ninth Amendment, but that debate, which has not won a majority on the Supreme Court, is beyond the scope of this post.

[17] Meyer, 262 U.S. at 399.

[18] See, e.g., Sch. Bd. Dist. No. 18, Garvin County v. Thompson, 103 P. 578, 579, 582 (Okla. 1909) (holding that a school may not expel students, who at the direction of their parents, refused to participate in singing lessons, and holding that “[a]t common law the principal duties of parents to their legitimate children consisted in their maintenance, their protection, and their education,” and that the parent’s right “is superior to that of the school officers and the teachers.”).

[19] See Obergefell, 576 U.S. at 667.

[20] See Meister v. Moore, 96 U.S. 76, 81, 24 L. Ed. 826 (1877).

[21] Learned Hand, “The Spirit of Liberty” (1944).

[22] Id.

Will Dobbs (and Janus) Overrule Stare Decisis?

    Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization has vast cultural implications for a country mired in starkly divisive political rhetoric. The leak of that opinion also undermines the Supreme Court’s institutional integrity at a time when the public’s trust in the Court was already at an all-time low. But there is another crucial and often overlooked way in which the draft opinion undercuts the Court’s prestige and the public’s reliance upon its opinions: the approach it takes to stare decisis.

    Justice Alito’s draft opinion devotes nearly 30 pages to a discussion of whether the doctrine of stare decisis—the concept that courts should generally uphold prior decisions rather than overrule them—requires following the Court’s 1973 decision in Roe v. Wade and it’s 1992 decision in Planned Parenthood v. Casey reaffirming Roe. Alito begins by offering a few platitudes on the importance of precedent and a list of examples where the Court has previously overruled despite the force of stare decisis. Alito then identifies the “factors” in the stare decisis analysis by relying upon his own recent opinion in Janus v. AFSCME. Just as I have previously predicted, Alito’s draft opinion demonstrates that Janus is now the new loadstar for a version of stare decisis so weak as to be practically meaningless.

    In his Janus opinion, Justice Alito created a new zenith in the “weak” stare decisis tradition. The weak tradition posits that “poor reasoning” in a prior decision is not merely a condition precedent to stare decisis analysis, but is also a substantive consideration in that analysis that may itself justify a reversal. That view stands in stark contrast with the strong version of stare decisis that led the Court to reaffirm Roe in Casey. Under that “strong” stare decisis tradition, a precedent, regardless of the quality of its reasoning, should stand unless there is some “special justification” to overrule it—including whether the precedent defies practical workability, is subject to special reliance interests, is a mere remnant of abandoned doctrine, or is based upon facts that have changed so significantly that the precedent’s rule is no longer applicable.

    Just the Janus opinion did, the draft opinion in Dobbs placed the substantive accuracy of the precedents—the “nature of the Court’s error” and the “quality of the reasoning”—as the first consideration for justices unsatisfied with a precedent. The draft Dobbs opinion then spends eleven pages decrying the reasoning of Roe and Casey, saving far shorter passages for discussions of traditional stare decisis factors like workability. Poor reasoning in a prior decision is thus more than just a reason to turn to stare decisis analysis; it is instead a sufficient condition to overturn decisions.

    The draft Dobbs opinion confirms that a precedent’s reasoning is the only factor that matters when it dismisses, in a little over two pages, society’s reliance interests in a half-century-old opinion. The opinion claimed there was a lack of concrete evidence of societal reliance on Doe and Casey, despite their decades-old vintage. Reliance interests, long the acme of stare decisis concern, thus play almost no role in determining whether to uphold a precedent.

    This elevation of the Janus approach to stare decisis is a grave danger to the stability of our legal system and the reliability of our courts. As I have argued before, poor reasoning provides an ever-present justification for overturning decisions. Conversations about stare decisis only arise, after all, when current Justices believe that a prior decision was substantively incorrect and might warrant a change of direction. Janus and the draft Dobbs opinion, however, tout a version of stare decisis that would be unable to settle disputes independent of the Justices’ views about the substantive correctness of a decision. This significantly undermines doctrinal stability, making it harder for the public to know and understand the law. It also undermines judicial legitimacy in a hyper-polarized society. And it may also undermine legal consistency as lower courts freely deviate from Supreme Court precedent that appears substantively incorrect.

    Arguably, this form of weakened stare decisis is itself so incoherent and unworkable that it could hardly be considered a doctrine at all. That lack of coherence may allow Justices to change their approach to stare decisis over time. A new Justice can begin her career by claiming fidelity to a weak stare decisis tradition that allows her to rapidly overrule cases with which she substantively disagrees, only to transition to a strong stare decisis tradition later in her career in an effort to protect her perceived gains from overrule by subsequent judicial generations. Such waves in stare decisis are intellectually inconsistent, as the Justice who ascribes to changing conceptions of stare decisis over time in fact ascribes to no real, binding version at all. Furthermore, the constant churn in legal doctrine would render stare decisis so malleable as to become meaningless, rendering all precedents vulnerable to overrule at any time.

    In the Dobbs draft opinion, Justice Alito is careful to note that the ruling does not threaten precedents that do not concern abortion. But the draft opinion suggests far more malleability in all forms of precedent than Alito’s assurances. The draft opinion perpetuates a weakened version of stare decisis that undermines the finality of any decision, at great risk to a politically divided nation.

Roe v. Wade is Probably Going to the “Graveyard of the Forgotten Past”

   Based on the stunning and unprecedented leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, a slim majority of the Court may overturn Roe v. Wade and Planned Parenthood v. Casey and return the abortion issue to state legislatures – and the democratic process where it always belonged. Before discussing Roe in detail, a few developments from the last week warrant mention.

    First, the leaker, who is possibly a misguided law clerk, is a disgrace. The idea that you can assert political pressure on the Court – an independent branch of government – is ridiculous. What’s shocking is that this leaker is likely from a top law school. And the incredible lack of judgment – apparently believing that such pressure would influence the Court’s decision – shows the leaker has no respect for the Court’s institutional role and no regard for the need to insulate the Court from political pressure,

    Second, the misleading and, quite frankly, intellectually dishonest comments by some scholars, politicians, and journalists – along with threats to protests at the justices’ homes – misrepresent fundamentally the impact of reversing Roe, misapprehend the Court’s role in a constitutional democracy, and threaten to undermine severely the Court’s legitimacy. Put simply, the Court’s job is not to base its decisions on policy outcomes that the public deems desirable; its job is to interpret the Constitution.

    Third, public discourse following the unprecedented leak of Justice Samuel Alito’s draft opinion demonstrates a startling disregard for the fatal flaws in the Court’s abortion jurisprudence, which both liberal and conservative scholars, including Justice Ruth Bader Ginsburg, identified in the decades after Roe was decided. The fact that scholars, politicians, and journalists have so utterly misrepresented Roe and made unhinged attacks on the Court, shows how significantly this discourse has declined in quality and integrity.

I.    The Reality of Abortion Jurisprudence

    As a matter of constitutional law, Roe is one of the worst decisions in the last century (outside of, for example, Plessy and Korematsu). To begin with, Roe has no basis in the text of the Constitution. Furthermore, the right to abortion is not inferable from any textually-grounded right. Finally, the right to abortion is not deeply rooted in the nation’s history and traditions.

    A.    Abortion has no basis in the text of the Constitution.

    In Roe, the Court based its decision on, among other things, the Fourteenth Amendment’s Due Process Clause, which provides in relevant part that “no state shall … any person of life, liberty, or property, without due process of law.”[1] Essentially, this means that states must afford citizens fair procedures (e.g., a trial) before citizens can be executed, imprisoned, or subject to property forfeiture. Nowhere in this language can any substantive constitutional right be discerned, particularly the right to abortion.

    And the Court in Roe likely knew that.

    However, the Court remained undeterred and instead relied on Griswold v. Connecticut to invent a fundamental right that no reading of the Constitution’s text could possibly support. In Griswold, the Court invalidated an admittedly-ridiculous law that banned contraception.[2] In so doing, the Court held that, although no specific textual provision supported invalidating the law, the Bill of Rights contained invisible “penumbras, formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance"[3] On the basis of these judicially-created “penumbras,” the Court discovered a substantive right to privacy in the Constitution, even though the majority could not identify exactly where in the Constitution this right “emanated.” In other words, the Court blatantly manipulated  -- in fact, ignored – the Constitution’s text, to reach a result that no interpretation could support, but that their justices preferred based on their subjective values.

    Subsequently, the Court in Roe relied on this nebulous and impossible-to-define (or limit) right to privacy, holding that this “right” was “broad enough” to encompass a right to abortion. To make matters worse, in Planned Parenthood v. Casey, the Court, in reaffirming Roe, held that the word “liberty” in the Fourteenth Amendment’s Due Process Clause encompassed various unenumerated and substantive liberty interests that cannot be found anywhere in the Constitution – but that the justices subjectively deemed necessary to protect citizens’ liberty. In so holding, Justice Anthony Kennedy wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.”[4]

    One can hardly find decisions or language (the “mystery of life” passage) more anti-democratic and more untethered to the Constitution’s text.

    It should come as no surprise that liberal and conservative scholars overwhelmingly condemned Roe’s reasoning. Even Justice Ruth Bader Ginsburg believed that Roe was far too sweeping, such that “it seemed to have stopped the momentum on the side of change.”[5] Additionally, as Professor John Hart Ely stated:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.[6]

    Likewise,  Harvard Law Professor Laurence Tribe stated that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[7] The list goes on and on, but you get the point.

    It should also come as no surprise that, in current discourse, very few scholars defend Roe on its merits.

    The Court should have never gotten involved in the abortion issue. Because the Constitution was silent on this issue, and because no provision could have possibly been interpreted to protect a right to abortion, this was a matter for the people to decide, not nine unelected judges.

        B.    Abortion is not inferable from any textually-based right.

    The above argument is not meant to suggest that the Court cannot and should not create unenumerated constitutional rights, particularly where those rights are inferable from the text. Certainly, the First Amendment right to free speech implies a right to assembly. Likewise, the Fifth Amendment right against self-incrimination implies that the prosecution cannot comment on a defendant’s refusal to take the stand at trial (this is not an implied right per se, but you get the point). Similarly, the Sixth Amendment right to counsel implies the right to effective assistance of counsel and the Eighth Amendment ban on cruel and unusual punishment implies a right to be free from punishments that are disproportionate to the crime of conviction (or the defendant’s blameworthiness).

    Nowhere in the Fourteenth Amendment’s Due Process Clause, however, is the right to abortion even remotely inferable. And that is the point. There was no constitutional basis for creating this right.

        C.    Abortion is not deeply rooted in the nation’s history and tradition.

    To the extent that scholars and some members of the Court support the substantive due process doctrine and the creation of unenumerated rights under this doctrine, it comes with two caveats: first, those rights must be deeply rooted in the nation’s history and traditions. For example, such rights include, but are not limited to, the right to travel and the right to educate and rear one’s children.[8] The right to abortion, however, is not deeply rooted in our nation’s history and tradition and was widely outlawed for most of American history.

    Additionally, the asserted unenumerated right must be carefully and narrowly described. In Washington v. Glucksberg, the Court emphasized this point when holding that the Constitution did not protect a right to assisted suicide.[9] In so doing, the Court emphasized that its members should be hesitant to create unenumerated rights because doing prevents the people in each state from deciding these issues democratically and thus from determining from the bottom up, not the top-down, which unenumerated rights should be recognized.

    The Court’s decisions in Roe and Casey underscore the problem with creating nebulous unenumerated rights, such as the right to “privacy” and “liberty,” and then creating new rights based on these broad formulations. Specifically, these so-called rights have no conceivable limitations and could theoretically encompass unenumerated rights (and policy outcomes) that the justices deem desirable, that have no relationship to the Constitution, and that reflect nothing more than subjectivity and arbitrariness. That is a prescription for anti-democratic governance because it allows nine unelected judges to impose their policy predilections on an entire nation – without any accountability whatsoever. After all, why doesn’t the right to privacy and liberty encompass a right to use illegal drugs, marry a family member, or commit suicide? That, in a nutshell, is the problem with Roe.

    It's also the problem with relying on natural rights theory to create unenumerated rights. Such an approach would be equally, if not more, broad and limitless than privacy and liberty, and would cause the same problem: the justices could “discover” whatever right they want whenever they wanted. This would lead to a constitutional jurisprudence of the most undemocratic kind.

    Ultimately, Roe and Casey are likely to be overturned despite principles of stare decisis. These decisions were, as Justice Alito said in his draft opinion, egregiously wrong.

II.    Overturning Roe will not endanger other constitutional rights.

    Some commentators have suggested that overturning Roe and Casey will lead the Court to overturn other decisions, such as Loving v. Virginia, which rightly invalidated bans on interracial marriage, and Obergefell v. Hodges, which rightly invalidated bans on same-sex marriage.[10] This concern is misplaced. Unlike Roe, cases such as Loving and Obergefell were based in substantial part on the text, namely, the Equal Protection Clause.

    Roe, however, was not – and that again is the problem. Indeed, a plausible argument could be made that abortion bans violate the Equal Protection Clause. Specifically, such bans prohibit women from participating equally in the social, economic, and political aspects of our society because they force women to bear the financial, emotional, and psychological burdens of an unwanted pregnancy. Had Roe been based on the Equal Protection Clause, it would have had a sounder and more justifiable constitutional basis.

III.    The real threat that overturning Roe and Casey presents.

    Despite Roe’s and Casey’s obvious flaws, overturning these decisions at this point – nearly fifty years after the Court decided Roe – will severely undermine the Court’s institutional legitimacy.

    To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Petitioners the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights, however, ill-founded, can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2022 than there were in 1973 or 1992. That is the point – and the problem – with overturning Roe and Casey now. In short, yes, Roe and Casey were terrible decisions, but at this juncture, overruling them is almost certain to cause more harm than good, particularly to the Court’s legitimacy and to women. On the merits, however, the downfall of Roe and Casey is understandable as a matter of constitutional law.

      In any event, Roe and Casey are perfect examples of how not to create unenumerated rights. When you give the Supreme Court the right to identify enumerated rights for an entire nation based on broad standards that invite subjectivity and arbitrariness, and when you base your view of a decision’s legitimacy on whether it comports with your policy predilections, democracy truly is in danger. The Court’s job is to interpret the Constitution, not to reach outcomes that you like. Put simply, the process by which the Court reaches its decisions is equally, if not more, important than the outcomes themselves.

 

[1] U.S. Const., Amend. XIV.

[2] 381 U.S. 479 (1965).

[3] Id.

[4] 505 U.S. 833 (1992).

[5] Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu)

[6] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).

[7] Laurence Tribe, The Supreme Court, 1972 Term–Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harvard Law Review 1, 7 (1973).

[8] See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Wisconsin v. Yoder, 406 U.S. 205 (1972).

[9] 521 U.S. 702 (1997)

[10] 388 U.S. 1 (1967);  576 U.S. 644 (2015).

Why Does Justice Kagan's Writing Work So Well?

Let’s break down a random snippet of Justice Kagan's writing. She's one of the best writers on any court--in large part because of how much effort she puts into every opinion. Anyone can learn a lot by reflecting on just about any document she pens.  

Legal writers often use excessive definitions, filling their document with “Hereinafter referred to as...” But good legal writers use shorthands and avoid drowning readers with defined terms unless they are truly needed to avoid confusion.

In the following snippet, Justice Kagan uses “choice-of-law rule” throughout—a simple, concrete shorthand. And you’ll notice no need to define a shorthand for this piece of art. The reader isn’t confused when the Justice later uses the first three words. 

“The question presented is what choice-of-law rule the court should use to determine the applicable substantive law. The answer is: whatever choice-of-law rule the court would use if the defendant were not a foreign-state actor, but instead a private party. Here, that means applying the forum State’s choice-of-law rule, not a rule deriving from federal common law. ...

At issue is the ownership of an Impressionist painting depicting a Paris streetscape: Camille Pissarro’s Rue Saint-Honoré in the Afternoon, Effect of Rain (shown in this opinion’s appendix). ... The post-war search for Rue Saint-Honoré was a long one.”

Some always-great writing techniques in this next snippet. Look for the following: 

1.    Starting sentences with familiar words or concepts.

2.    Using active verbs and vivid glue words (“brought [the suit] . . . within...”)

3.    Explaining key concepts in simple terms—not just for lay readers, but to remind readers in inescapable language what familiar legal terms mean.

4.    Varied punctuation (em dashes to emphasize; semicolons to compare or contrast ideas).

5.    Novel nouns or flourishes that won’t sound overused (have you ever mentioned a “minimally reasoned precedent”? But it works!): 

“The complaint here asserted that the statute’s expropriation exception applied. That exception removes immunity for cases involving ‘rights in property taken in violation of international law.’ § 1605(a)(3). At a prior stage of this litigation, the courts below held that the Nazi confiscation of Rue Saint-Honoré brought Claude’s suit against the Foundation within the expropriation exception.” ....

“Resolving that question required application of a choice-of-law rule—a means of selecting which jurisdiction’s law governs the determination of liability. Yet there another issue lurked. For the parties contested which choice-of-law rule should apply—serving up, so to speak, a choice of choice-of-law principles. The Cassirer plaintiffs urged the use of California’s choice-of-law rule; the defendant Foundation advocated a rule based in federal common law. The courts below, relying on a minimally reasoned Ninth Circuit precedent, picked the federal option.”

Dissecting great legal writing (or writing generally) is one of the simplest ways we can boost our own craft. So try picking up your favorite author and get to work! 

Putting the Audience First: A Perspective on Legal Writing

Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

Putting the Audience First:  A Perspective on Legal Writing

A few weeks ago, I was invited to give a short dinner talk about legal writing to a group of federal district court staff attorneys and judges.  The talk was entitled “Audience-First Legal Writing.”  This month’s post is based on that talk.

Legal writing is always and almost exclusively at its best when it is audience-centered. That is, the best legal writers know that they can be most effective when their documents meet the audience’s needs.  Accordingly, the best legal writers write legal documents not for themselves but for the audience.  And the consequence of that commitment to audience is the knowledge that every rhetorical move and every writing choice contributes to the audience’s view on whether the writing is “good.”   

What an audience thinks is “good” legal writing changes with the purpose of and context for the document.  Much of the time, a writer can’t know with certainty what an audience will deem “good.”   Of course, the better the writer knows the specific audience, the more likely the writer can be successfully audience-centered.  But, even without this knowledge, legal writers can anticipate some common needs that audiences might have of a document.  Is the document understandable?  Accurate? A quick read?  Logically sound? Interesting?  Well organized?  Engaging?  Convincing?  In other words, writers are not without resources when it comes to anticipating and writing for audiences in ways that satisfy their needs.  But, without prioritizing an audience-centered view of writing, none of those resources can be brought to bear in a writing project.

As such, I’ll suggest that the legal writer’s prime directive is this: 

In a deliberate way and in every writing choice, put the audience first.

“Audience-First” Is a Perspective on How to Write

I notice that legal writing instruction—particularly in the context of continuing legal education—is often directed to the tactics that one can use to make their legal writing better. For example, “prefer active voice,” is a tactic of good legal writing.   Nothing is wrong with learning good legal writing tactics.  But those tactics aren’t all that useful without a perspective on or a strategy for deploying them.   

An audience-first approach to legal writing that perspective or strategy.  An audience-first orientation toward the writing project can guide how one chooses which tactics to use to write a document.  In other words, having an audience-first approach to writing is way of being and seeing as a writer that will lead to effective writing choices.

Actual, Imagined, and Implied Audiences

The first goal of an audience-first legal writer is first understand the audiences to which one writes.  To start, a writer wants to get to know the actual audience of a document as well as one possibly can.  For example, if a writer knows the particular preferences or desires of the actual audience, that knowledge can play a big role in meeting those needs.  

But it’s tough to always know (and know well) the actual audience of a legal document.  In fact, I’d argue, that there is no one, “actual” audience for a legal document; audiences in legal writing are typically multiple.  For example, an appellate brief might find audiences in clients, opposing counsel, supervisors, clerks, judges, the press, and a host of legally interested internet surfers.  Moreover, even within an actual audience, like judicial clerks, for example, a writer may be unable to know the specific expectations, preferences, and needs of those readers. 

But lacking information about the actual audience does not leave a legal writer without options.  This is because a writer’s audience is not just the audience the writer can identify with specificity, but it is also the audience that the writer can imagine, based upon their educated guesses about that  audience.  Key to the imagined audience is that it is a composite audience, an idealized example of the people who will be reading the document.  Unlike the actual audience, the imagined audience represents a group of anticipated readers in terms of their collective goals and characteristics.  So, an audience-first approach means to imagining this idealized example and then writing for it.

Finally, an audience-first approach means being attentive to the audience that is implied in a document. That is to say, audiences are not only actual or imagined, but they are also the ones that the document itself brings into being. Think of it this way:  Actual and imagined audiences exist even if a text didn’t.  Implied audiences exist only because the text does.   

Unpacking the Implied Audience: Everything You Need to Plan the Most Epic Prom Ever

 An implied audience is one that is constructed by the document itself and can be inferred from analyzing that document. Writers imply an audience in a document based on how they decide to organize the text and describe the concepts within it.  In other words, when writers make choices about the writing, one can see in the document who the writer wants the audience to be. 

The idea of the implied audience can be seen as a perspective on persuasion that gives a legal writer tremendous power over a reader’s reception of the document.  Writing a document to not only address but also imply a particular audience results in content that can both create needs in the audience and then satisfies them.  In other words, implying an audience in a text can motivate a reader to become an audience with a need (perhaps one that the reader didn’t even know they had) that the document can satisfy.

I’ll use a nonlegal example of how implied audience works in a text to help simplify the analysis.

In March, Seventeen magazine published this headline on the front page of its website:  “Everything You Need to Plan the Most Epic Prom Ever.”

There’s a good bit of implied audience at work in this sentence. 

First, the sentence implies an audience that is—or should be—interested in having a great prom experience.  This sentence not only attracts the attention of an audience already looking for information about a great prom, the sentence also constructs a prom-interested audience; it tells readers to be an audience with an interest in prom. In other words, the words of the sentence create an audience with certain needs; in fact, the sentence is not even subtle about this—it specifically says that “you” have a “need”!

Second, the sentence tells the audience that the website has what the audience needs; it has, as the title says, “everything.”  Keep reading, implied audience, to meet your (constructed-in-the-text) need for everything! 

Third, the title implies an audience who is willing to work at accomplishing this epic prom.  In other words, the text implies an active audience—one who will “plan” everything necessary to ensure this experience is fantastic.  By creating for the audience a need for action steps, the text sets up a particular relationship with that audience—one where the audience prepares to do something with the information they’ve learned.

Finally, the title artfully uses the word “epic.”  The word “epic” implies an audience of a certain generation—one that would use the word “epic”—and with certain expectations—very high ones.  The tone of the sentence might even suggest that the implied audience has a fear of missing out on all of prom’s “epic” possibilities.  This fear might motivate action--I, too, want the most epic prom ever—what do I need to do? At the very least, the sentence suggests, look at the website (and perhaps all of the advertisements?) for everything you need!

So, what should a legal writer, taking an audience-first approach, conclude about the implied audience from this analysis of Seventeen magazine’s website headline?  This sentence invites into being an audience that is probably in high school, is interested in prom, is expecting prom to be an amazing experience, is willing to plan, and is looking for exhaustive information on what to do.  This audience, and all its characteristics, is implied in the sentence; the sentence creates an audience who has needs, invites the reader to be in that audience, and implicitly promises that those needs will be met in the text that follows. 

As legal writers, we might ask ourselves—if one sentence can do that much work implying an audience and creating and satisfying its needs, what could we accomplish with all the sentences of a legal document?

A Recap and Some Questions

So, as a reminder, this post suggests that the best way to approach legal writing is to take an audience-first approach.  First, write to the audiences you know as well as the audiences you can imagine. You can do this by asking a few questions at the beginning of your writing process, the answers to which will guide your writing choices:

• What are the characteristics of the actual audience that will be reading your document? What will they need?
• Equally important, who is your imagined audience? What will the idealized reader need from the document?

Second, write with a conscious awareness of the audiences that your documents imply. Implying an audience gives you the power to be more persuasive by motivating readers to become audiences with needs you can satisfy through your writing choices.  To become more aware of the implied audience in your writing, ask

• What needs do you want the audience to have that can be met by the document?

Next Month:  Connecting Writing Tactics to the Audience-First Legal Writing Strategy

An audience-first perspective on legal writing can give a legal writer a useful strategy for writing effective documents that can appeal to and meet the needs of audiences.  The next step is to connect the audience-first strategy to the writing tools that writers already have in their tool boxes.  These tools are the tactics that the writer will use to satisfy the needs of the audience.  In next month’s post, I’ll connect some writing tactics to the audience-first approach.

Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at kkdavis@law.stetson.edu.

Publication of Interest

Yes, I should be blogging about a leaked SCOTUS opinion. BUT, my junior associate got his ear tubes removed early this morning and we have been snuggling, attempting to nap, and watching a lot of cartoons. Here is information on a recent publication that might be of interest.

Volume 1 of The Unending Conversation at Stetson is live! You can access it here: https://www2.stetson.edu/law-review/. The Unending Conversation is a project of  Stetson’s Institute for the Advancement of Legal Communication led by Professor Anne Mullins.  A volume of the Stetson Law Review Forum is dedicated exclusively to legal writing and feature essays that are directly responsive to extant legal writing scholarship.

Volume 1 features thought-provoking essays from Rebekah Hanley (Oregon), Kim Ricardo (UIC), Amy Soled (Rutgers), and Kathy Stanchi (UNLV). Among other things:

• Professor Hanley takes a decidedly pro-plagiarism stance in her piece.
• Professor Ricardo argues for an end to discrimination in the legal academy through solutions grounded in substantive equality.
• Professor Soled roundly rejects a recent claim of protectionism within the discipline.
• Professor Stanchi challenges the legal writing community to examine deductive reasoning more deeply to reveal potential bias.

A Hybrid Future for Oral Argument?

Happy end of the semester and end of moot court season for all of the academics and coaches out there. While most academic classes have been in-person this year, many moot court competitions have remained virtual.

Readers of this blog will remember that in March 2020, I posted about how the University of Arizona James E. Rogers College of Law moved its intramural moot court competition online in the wake of the COVID-19 pandemic. We learned a lot during that experience, and conducted the competition virtually last year. We were far more prepared for an online competition. I appreciated that I could draw judges from across the county--including a final panel that consisted of two Ninth Circuit judges and one Fifth Circuit judge. I also loved using an online scoring tool that did away with my manual entry of scores.

This year, however, we opted for an in-person competition. It was nice to see the judges and students in person, and the competition started the week after the University lifted its mask requirement, another plus for oral argument. And while the bulk of judges and students appeared in person, we did get to experience two types of hybrid arguments--arguments that give me hope for a hybrid oral argument future.

The first hybrid argument involved three in-person judges, one in-person student, and one virtual student. The student had traveled to the Federal Bar Association Indian Law Conference, but then advanced to the elimination rounds that Saturday.  We held the round in our appellate courtroom, with the student appearing on a huge television screen facing the judges. Our fabulous IT team brought in a camera that we placed in the courtroom to focus on the bench, so the virtual student could see the judges. We did not have a camera on the in-person student, which was certainly a downside.  Overall, the argument went really well, and the virtual student even advanced to the semi-final round! We did have a few sound issues, which could have been improved by the student using some type of earbuds or headphones and better speakers in the courtroom. 

Our second hybrid argument was the final round, where one of our judges needed to appear remotely. This argument was held in our largest classroom. We placed the in-person judges at two tables in the front of the room. Between the two tables was the podium for teaching. On the podium was a monitor and camera, which faced the advocate. We also had the big pull down screen that we typically use for class powerpoints and materials.  Our virtual judge appeared both on the smaller monitor on the podium and the big screen. The smaller monitor with the camera allowed the advocate to look directly at the judge (and the other judges who were at a similar eye level. The large pull down screen allowed the participants to see the virtual judge. Once again, the hybrid format worked well. The virtual judge was able to actively participate, and there were only a few times where I thought we had sound issues.

As I noted above, these experiences give me hope for a hybrid oral argument future. I have been clear before on this blog that I support virtual arguments for attorneys who request them. With the right technology and a little bit of understanding, virtual arguments can be a successful alternative to an in-person argument.  This is even true if some attorneys or judges are in-person.  I was at our intermediate appellate court last week. Although the courtroom isn't new--it has been modified for online arguments, including cameras at both counsel tables and at each judge's seat. I suspect that persons designing courtrooms of the future will include better cameras, screens, and speakers for virtual or hybrid arguments.

While I suspect that moot court competitions will move more in-person next year, I am encouraged by this embrace of technology for the future.

The Art of Rebuttal

            Rebuttal provides an advocate with an opportunity to point out otherwise undiscussed weaknesses in an opponent’s argument, as well as to emphasize the superiority of the evidence, precedents, and reasoning that supports your client. Five points fundamental points should guide rebuttal:

1. Answer your opponent’s best argument. During your opponent’s argument, you can evaluate your opponent’s framing of the argument and the court’s reaction to them. Many advocates go after the obvious weakness in the argument the court just heard. Doing so can be effective, but, if the argument is available, demonstrating why your opponent’s best argument should not prevail can powerfully move the court to your position. Perhaps accepting that argument creates practical problems easily avoided or raises unnecessary constitutional issues that the court should want to avoid. Perhaps it would create precedent that throws into question another line of related precedent that cannot coexist together. Simplicity, rather than new complexities, often provide a court with a path that allows it to resolve your case favorably without creating a host of new problems for those who come after you.
2. Answer questions posed to your opponent. A judge’s questions are a window into the jurist’s mind, letting you know what concerns might animate the decision. Whether it is a seemingly softball question or a penetrating inquiry, a satisfactory answer that leads the judge in your direction can overcome your opponent’s response. If your answer provides a better path to decision, it can create confidence in the court that the result you seek is the proper one. In one argument last year, a judge known to favor that approach asked my opponent whether he was aware of an original-intent scholarship that supported his position. Using only a few seconds of my rebuttal time, I reminded the judge that he did not receive an answer to that question because academic writings on that point uniformly favored my position, citing two scholars.
3. Don’t waste time rebutting a point that a judge already accomplished for you. There is no more powerful rebuttal to an opponent’s argument than one that comes from the court itself. Unless questioned about it, there is no reason to reiterate that point and subtract from its impact. In a case I had before the U.S. Supreme Court, my opponent made a facially useful point in his brief. In my reply brief, I explained why it lacked substance, adding a footnote that the record reflected that the evidence took away the foundation for that argument. During oral argument, my opponent, early on, made the same point again, ignoring my rebuttal. Justice Ginsburg, however, did not ignore it. She interrupted to state that the evidence deprived him of that argument. He had no response and, despite substantial experience in that court, never recovered from that loss of credibility. When he first expressed the argument, I made an immediate note to rebut it. When Justice Ginsburg made my point, I crossed the note out. She had settled that issue in my favor. Have a one-sentence conclusory pitch. As time runs down, too many advocates end with a perfunctory request for affirmance or reversal of the court below. Instead, a one-sentence conclusory pitch that articulates exactly the ruling you hope the court will adopt and write into the opinion, providing the judges with a strong, clear basis for its decision. That 30-second or less conclusion will leave an impression much more memorable than any generic statement.

4. Don’t feel the need to use all of – or any of – your time. Too many advocates believe the opportunity for face time before the judges is too valuable to give up. Although they may have nothing new to say, they remain at the podium, reemphasizing something previously articulated. And, often, the advocate endangers the argument by allowing the court to pose new questions that might not have troubled them if the argument had ended. In one case I argued, as my opponent, thoroughly eviscerated by the court’s questions, finished, I realized I had not written a single note to myself about something I needed to answer. I rose and said that, unless the court had any questions, I waive rebuttal. The tactic proved correct, as I received a unanimous decision months later. Although I am fond of certain rebuttals that made astute observations that showed up in the subsequent opinion, waiving that response was unquestionably the best rebuttal I have made in more than four decades of practice.

Appellate Advocacy Blog Weekly Roundup Friday, April 29, 2022

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• Justice Stephen Breyer sat for his final argument this week in Oklahoma v. Castro-Huerta. At the end of the argument, Chief Justice Roberts offered a tribute, saying “[f]or 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly.” Justice Breyer’s seat will be filled by the first Black woman to serve on the Supreme Court, Judge Ketanji Brown Jackson.  Hear the audio clip and see reports from AP News, CNN, and USA Today.

• Oklahoma v. Castro-Huerta, the last argument of the term, considers whether Oklahoma has authority to prosecute crimes committed on reservation land when those crimes are committed by non-Native Americans. The case comes after a decision in McGirt v. Oklahoma that ruled that state and local law enforcement could not prosecute crimes by Native Americans committed on reservation land. The petitioner, who is not a Native American, was prosecuted by state authorities and appealed his conviction arguing that McGirt should apply to any crime committed on reservation land. Read the transcript or listen to argument and see reports from The Wall Street Journal, New York Times, and The Washington Times.

• The Court also heard argument in a school speech case, Kennedy v. Bremerton School District, which considers the limits of prayer at school. The case weighs the rights to free speech and free exercise of religion against Constitutional precedent that prohibits schools’ pressuring students to participate in religion. The petitioner, a high school coach, was fired after praying at the 50-yard-line after each game. The coach claims that his prayer, which students and others often joined, is his individual exercise of religion. The school, however, argues that (1) the prayer is coercive and (2) the prayer can be perceived as being endorsed by the school.  Read the transcript or listen to argument and see reports from The New York Times, USA Today, and NPR. The New York Times’ The Daily covered the case on Wednesday.

• The Supreme Court ruled that businesses that receive federal money cannot be sued for discrimination if the only harm is emotional distress. The majority decision rested on principles of contract. The court recognized that the discrimination claims against such businesses were rooted in the agreement that, in exchange for federal funds, the businesses would not discriminate and could be held accountable if discrimination occurred. Thus, because breach of contract does not include recovery for emotional harm, the Court reasoned, claims against these businesses should likewise not include recovery for emotional harm. Justice Roberts wrote, “[a]fter all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table.” See the decision and reports from The Washington Post and The New York Times.

Appellate Court Opinions and News

The Fourth Circuit allowed a suit against the judiciary by a former federal public defender who argued that her constitutional rights were violated when a Federal Public Defender's Office in North Carolina was deliberately indifferent to her complaints of sexual harassment. Because the Fourth Circuit was a defendant, three judges from the Sixth, Eighth, and Tenth circuits heard the case.  The decision confirms that the Fifth Amendment "secures a federal judiciary employee's right to be free from sexual harassment in the workplace." See the ruling and reports from The Washington Post and Reuters.

Some Thoughts as Justice Breyer Leaves the Court

Justice Stephen Breyer heard his last arguments yesterday as a member of the Supreme Court of the United States. With no disrespect to the remaining members of the Court or its soon-to-be newest justice, his retirement undoubtedly will leave the Court a less interesting place.

While the replacement of one left-of-center justice with another will not change the ideological balance on the Court, we will have to wait to see if Justice Ketanji Brown Jackson moves the needle a little farther to the left than did Breyer, one of the justices closest to the ideological center. And by all accounts one stellar intellect is being replaced with another. Many things won't change so much where it really matters. From a jurisprudential standpoint, time will tell. I'll leave the serious academic summations of Justice Breyer's career and his impact on the law to others. My only aim here is to say this: the Court just won't be the same without him.

The retirement of Justice Breyer is likely to continue one trend at the Court: it will become more boring. I don't mean that in the legal sense--after all, there are plenty of important and interesting cases at the Court--but really in a much more basic sense.

Some may find being more boring a good thing for the Court. After all, there were critics of the celebrities that justices like Antonin Scalia and Ruth Bader Ginsburg had become. But no one can argue that they weren't the rock stars of the Court. After their deaths and now with the departure of Justice Breyer, exactly who are the rock stars of the Court? Justice Sotomayor perhaps as she is noted for asking tough questions of the advocates? Justice Kagan, recognized by many as the most interesting writer of the Court? Notwithstanding their abilities and regardless of how one views their judicial philosophies, it is hard to say at this point that the last three appointments have spiced anything up on the Court. To the extent that the justices should just be umpires calling balls and strikes, as Chief Justice Roberts famously said during his confirmation hearing, anonymity generally has been the hallmark of a good umpire (or any sports official). And according to recent polls, most Americans don't know who the justices are.

For those of us who pay close attention to the Court, though, Justice Breyer will go down in history as one of the most memorable. It sure was fun to have him on the Court, and he will be missed.

The Court is losing a justice with some unique qualities not likely to be matched any time soon:

1. Hypothetical questions. -- No one asked more hypotheticals, better hypotheticals, more complex hypotheticals, or more confusing hypotheticals than he did. It just won't be the same for advocates or observers without them.
2. Wit, sometimes intentional and sometimes not. -- When Justice Scalia was on the Court, Justice Breyer was right behind him in terms of garnering the most laughter during oral arguments. Of course, some of the laughter came in response to the hypotheticals mentioned above. My personal favorite was when he discussed someone having a "pet oyster." But then there also was the time he mentioned his underwear. And even recently he mentioned radioactive muskrats.
3. He loved the Federal Sentencing Commission and the Federal Sentencing Guidelines. -- Justice Breyer was a defender of the Federal Sentencing Guidelines. Indeed, he was considered by some to be one of the "parents" of the guidelines, having served on the first Sentencing Commission that created them. He liked to discuss the Commission and mentioned it in an oral argument as recently as January.

In his comments at the close of the last argument heard by Justice Breyer, the Chief Justice put it best: "For twenty-eight years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly." As the Chief Justice's voice trembled with emotion, he spoke for all of us in saying good-bye to a justice unlike any other.

May the record reflect...

On appeal, the record is your world. If it's not in there, it didn't happen in the appellate universe--even if it did happen in real life. Be sure you know when you start whose responsibility it is to ensure an adequate record on appeal (in federal court, both parties and the trial court have record-related duties; in some state courts, the appellant alone bears the burden). Knowing this can make the difference between winning and losing, because a presumption of regularity is going to attach--basically, an assumption that all went according to the law absent a record to the contrary--and fall on the party bearing the burden of ensuring record adequacy.

Often times, things happen in court that for some reason or other do not make it into the record--a sidebar conference is too muddled for the reporter or recording equipment to pick up; the exhibits are returned to the parties for some reason; a chambers conference doesn't get recorded or summarized on the record; etc. An unsophisticated practitioner will refer to those things in his brief without ensuring they are part of the record. Be aware that there are rules to help complete the record in situations like this (like Federal Rule of Appellate Procedure 10(c)-(e) or comparable state rules, see, e.g., Utah Rule of Appellate Procedure 11(h)). Some states also allow supplementing the record with facts that never happened in court, but bear on a discrete appellate issue like an ineffective assistance of counsel claim. But however your jurisdiction allows for it, be sure to follow the procedures rather than (as I've seen from time to time) attaching things as addenda to a brief and expecting that the court will consider them.

Appealing TROs: Some “Practical” Advice

    When 1Ls receive assignments in persuasive legal writing and appellate advocacy, their professors will surely remind them that the appellate process typically begins after the trial court has issued a final and appealable order, from which the litigants can file a notice of appeal. Interlocutory appeals are possible, the professor will note, but only on rare occasions that fall outside the typical advocacy curriculum.

    But perhaps the exceptions to the final judgment rule are worthy of greater exploration, especially in the case of temporary restraining orders that have dramatic, fast-moving effects in the real world. TROs are necessarily ephemeral; they are designed to prevent significant damage to a party for a brief time period, during which the court can hear more detailed arguments about the case and reach a reasoned determination about whether to issue a temporary or permanent injunction. At times, though, TROs can have a more meaningful impact. And sometimes, TROs can become longer-term placeholders for a court than the title seems to suggest. In those situations, parties may need an avenue to rapid appellate review of a court’s issuance of a TRO to avoid severe damages to a party’s interests.

    In her forthcoming article Appealable TROs, Professor Bernadette Genetin catalogues the history of appealable TROs and argues for a limited number of interlocutory appeals from TROs under 28 U.S.C. § 1292(a)(1). Providing the example of the Ninth Circuit’s finding that it had jurisdiction to review a district court’s TRO barring enforcement of the so-called “travel ban” issued by the Trump Administration in 2017, Genetin explains the damage that might be done by bright-line rules banning early appeals from TROs. A TRO should be appealable, Genetin suggests, when it has the practical effect of an injunction; threatens serious or irreparable injury; and effective review is available only through immediate appeal. Though such appeals should remain unusual, they may be necessary where circumstances are extraordinary; where there is a need to prevent serious loss of a high order of magnitude on a time-sensitive basis; where the issue falls within the appellate court’s particular and recognized expertise; or where a TRO exhibits many important characteristics of a preliminary injunction. For Genetin, the “practical effect” analysis gives appellate courts an important avenue to evaluate proposed action by the executive branch that the executive deems immediately necessary, yet others suggest violates the structural norms of our government or constitutional prerogatives of coordinate branches. Appellate courts may rightly lower the threshold showing of irreparable harm typically needed to support interlocutory review of restraining orders in order to address the exigencies of the situation and its importance to our governmental structure. As the Ninth Circuit’s decision in Washington v. Trump, 847 F.2d 1151, 1158 (9th Cir. 2017) illustrates, the decision to permit such interlocutory appeals can have an important effect both in determining the limits of executive action and in meaningfully enforcing those limits when necessary.

    Interlocutory appeals of TROs are, and should be, rare. But as Professor Genetin notes, bright-line rules prohibiting such interlocutory appeals fail to account for the flexibility needed to address rapidly-evolving issues of governmental structure in our present political environment. Courts should not hesitate to implement such limited flexibility in the years to come.

Why Judicial Deference Matters

Public confidence in the United States Supreme Court is declining because many citizens believe that politics, not law, motivate the Court’s decisions.[1] That belief is not likely to improve, particularly as the Court prepares to issue decisions on abortion, the right to bear arms, and religious liberty, which may be decided by a single vote.

Part of the problem, aside from the fact that, on divisive social issues, the justices’ decisions so conveniently align with their policy predilections, is that the Court often gets involved when it should defer to the legislative and executive branches. Indeed, judicial deference can – and should – play a key role in preserving the Court’s legitimacy and in demonstrating that the Court is not a political institution.

A.    Cases where judicial deference was appropriate

Below are several examples of where the Court should have deferred to federal and state legislatures.

        1.    Clinton v. New York

In Clinton v. New York, Congress passed, and President George H. W. Bush signed, the Line Item Veto Act, which authorized the president to veto specific spending provisions in duly-enacted legislation to reduce unnecessary government spending.[2] The Act also gave Congress the authority to override by a majority vote the president’s line-item vetoes.

The question before the Court was whether the Act violated the Constitution’s Presentment Clause, which states in part as follows:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.[3]

Based on this broad language, was the Line Item Veto Act unconstitutional? Well, it depends. Reasonable jurists can certainly study the historical record and the founders’ original understanding of the Presentment Clause and arrive at different conclusions. Given this fact, why did the Court get involved and, by a 6-3 vote, invalidate a law that both the legislative and executive branches agreed would reduce wasteful government spending and promote fiscal responsibility?[4]

            2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court considered whether a Louisiana law authorizing the death penalty for raping a child under the age of twelve violated the Eighth Amendment, which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[5]  Is it “cruel and unusual” to execute a person for raping a child under the age of twelve? Again, it depends – not on the Constitution’s text, but on a jurist’s subjective values. As with the Presentment Clause, you can certainly study the historical record and the founders’ original understanding of “cruel and unusual” and arrive at different conclusions. As such, why are nine unelected and life-tenured judges in a better position to make this determination than legislators in Louisiana? They aren’t – and that is the point.

But that didn’t stop the Court from intervening and, in a 5-4 decision, invalidating the law. Writing for the majority, Justice Anthony Kennedy stated that the determination of whether a punishment is “cruel and unusual” depended on “evolving standards of decency that mark the progress of a maturing society,” and on the Court’s “reasoned judgment.”[6] In other words, the Court can reach whatever decisions it wants, based on whatever its members feel at the time.

            3.    Citizens United v. FEC

In Citizens United v. FEC, the Court invalidated legislation that restricted corporations, labor unions, and other associations – within sixty days of a general election and thirty days of a primary – from making an “electioneering communication.”[7] The legislation’s purpose was to prohibit corporations and other entities from using money to influence federal elections (and primaries) and thereby gain unfair access to elected officials.[8]

The question before the Court was whether this legislation violated the First Amendment, which provides in relevant part that Congress “shall make no law … abridging the freedom of speech.”[9] Based on this broad language, was the legislation unconstitutional? The answer certainly doesn’t depend on the Constitution’s text.

Indeed, equally persuasive arguments can be made for and against the legislation’s constitutionality. As such, why did the Court get involved and, in a divisive, 5-4 decision, invalidate legislation that had the salutary objective of reducing undue influence in the electoral process? Put differently, why should the Court intervene to invalidate duly enacted legislation when the Constitution does not compel such a result, and where, as in Citizens United, doing so undermines equal participation in the democratic process?

To make matters worse, in reaching this decision, the Court overturned its decision only twenty-three years earlier in Austin v. Michigan Chamber of Commerce, where the Court held that Congress may restrict corporate expenditures to reduce the distorting effects of corporate wealth on the marketplace of ideas.[10] The Court’s decision to overrule Austin suggested that the Constitution’s meaning depends on the ideological and policy predilections of its current members and that constitutional meaning reflects those predilections.

The Court should have minded its own business and never intervened.

            4.    Shelby County v. Holder

In Shelby County v. Holder – another 5-4 decision – the Court invalidated two provisions of the Voting Rights Act even though: (1) the Senate had voted unanimously to re-authorize these provisions; (2) neither the Constitution’s text (in Shelby, the Tenth, Fourteenth, and Fifteenth Amendments) nor the Court’s “congruence and proportionality” test arguably compelled this result.[11] Once again, why did the Court get involved?

            5.    National Federation of Independent Investors v. Sebelius – Chief Justice John Roberts Gets It Right (albeit in a disingenuous                            way)

In National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts embraced judicial deference when voting to uphold the Affordable Care Act’s constitutionality.[12] Let’s be honest: Chief Justice Roberts’ reliance on Congress’s taxing power probably wasn’t due to his sincere belief that the individual mandate penalty was a proper use of that power. Rather, Chief Justice Roberts likely believed that invalidating the Act would tarnish the Court’s institutional legitimacy.

As a result, Justice Roberts deferred to the coordinate branches, stating that “[p]roper respect for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”[13] Chief Justice Roberts’ decision is somewhat ironic because his desire to preserve the Court’s institutional legitimacy – and avoid the perception that politics motivate the Court’s decisions – has arguably led Roberts to reach decisions based on his subjective view of how the public will react to a decision rather than on a principled interpretation of the law. Put simply, it appears that Chief Justice Roberts is no longer an umpire.[14]

            6.    Roe v. Wade – and the ugliness of substantive due process

Nowhere is deference more appropriate than where the Constitution is only subject to one interpretation. This was precisely the case in Roe v. Wade, a decision so untethered to the Constitution’s text that even Justice Ruther Bader Ginsburg could not bring herself to support the Court’s reasoning.[15]

The Fourteenth Amendment to the United States Constitution provides in relevant part that “No state shall … deprive any person of life, liberty, or property, without due process of law.”[16] Thus, the Due Process Clause is a procedural guarantee; it ensures that the state cannot arbitrarily and unfairly deprive citizens of life, liberty, or property.

Where in this language can a right to abortion be found? Nowhere – no matter how hard you look. As such, the Court should have left the decision of whether to permit abortion to the states – and the democratic process.

But that didn’t happen. And the path that the Court took to create a right to abortion made no sense whatsoever.

Specifically, in Griswold v. Connecticut, the Court held that the Constitution contained invisible “penumbras” that enabled the Court to unilaterally identify unenumerated rights – regardless of whether the Constitution’s text could support creating these rights.[17] This approach, known as “substantive due process,” states that the word “liberty” in the Due Process Clause encompasses certain unenumerated rights that are so essential to liberty that no process could justify their deprivation. In other words, the Court held that it could create whatever rights it wanted, even if the Constitution’s text provided no support for the creation of these rights.

Based on that flawed reasoning, the Court in Griswold held that the Fourteenth Amendment’s text miraculously contained an unenumerated right to privacy. And the Court in Roe – in a “raw exercise of judicial power,” – held that the so-called right to privacy was “broad enough” to encompass a right to abortion.

This isn’t a joke.

It actually happened.

It’s not surprising that conservative and liberal scholars have almost uniformly condemned the reasoning on which Roe was based. As Professor John Hart Ely stated:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.[18]

Indeed, even Justice Ruth Bader Ginsburg believed that Roe was far too sweeping, such that “it seemed to have stopped the momentum on the side of change.”[19] Likewise,  Harvard Law Professor Laurence Tribe stated that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[20]

If there was ever an issue where the Court should have deferred to democratic choice, it was on abortion. The fact that it didn’t should trouble citizens of all political persuasions. When you look to the Court, rather than the democratic process, to create new unenumerated rights, you give the Court the power to impose its will on an entire nation regardless of constitutional constraints. The risk in doing so is that, when the Court’s members change, so too may the rights that the Court previously deemed fundamental. A perfect example is Dobbs v. Jackson Women’s Health Organization, where a conservative majority may limit, if not eliminate, the right to abortion. As they say, the chickens have come home to roost.

That’s what happens when you ask the Court to decide unilaterally what should be decided democratically.

B.    Basing decisions on underlying purposes is an invitation to subjectivity and arbitrariness

It makes no sense to argue that, in the face of constitutional ambiguity, the Court should examine the underlying purposes of a particular provision to discern constitutional meaning. A purpose-driven analysis is an invitation to subjectivity, bias, and arbitrariness. To be sure, most constitutional provisions have multiple – and broad – purposes that judges can construe differently. As Justice Scalia stated, basing a decision on the broad (and often multiple and conflicting) purposes of a constitutional provision leaves judges “out to sea” where nothing but subjectivity reins – as it does in those “penumbras” that the Court in Griswold invented to create an unenumerated right out of thin air.[21]

Of course, the Court does have the power to say “what the law is,” and in some instances, the Court should not defer when faced with constitutional ambiguity, particularly where rights are inferable from the Constitution’s text.[22] For example, it’s certainly reasonable to conclude that the right to counsel implies the right to effective assistance of counsel, and that the right to free speech implies the right to association.[23] However, there are also instances where unenumerated rights are not readily inferable from the text, or where different but equally plausible interpretations of the text are possible.  That was the case in Clinton, Citizens United, and Kennedy (and a host of other cases). And in Griswold and Roe, no honest jurist could claim that the right to privacy and abortion, respectively, were inferable from the Due Process Clause. What’s more, in Washington v. Glucksberg, the Court held that the Fourteenth Amendment’s Due Process Clause did not encompass a right to assisted suicide.[24] So the Fourteenth Amendment protects the right to terminate a pregnancy but not the right to terminate your own life when, for example, you have Stage Four pancreatic cancer. This is what happens when judges base their decisions on little more than subjective values and gift wrap their policy preferences in dishonest legal analysis.

The Court should remember, as Chief Justice Roberts emphasized, that “[p]roper respect for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”[25] The Court should adopt the same approach when interpreting the Constitution’s text. To be sure, human beings do have natural rights that exist independently of and should not be limited by governments or constitutions. That doesn’t mean, however, that the Court should have the power to identify those rights. If it did, there would be no limits on the Court’s power.

We live in a democracy. That gives the people, not philosopher kings, the right to participate in the democratic process and create laws from the bottom up. When the Court interferes with these processes and makes decisions that lack any reasonable basis in the Constitution’s text, it undermines democracy and liberty, and erodes the Court’s institutional legitimacy.

Simply put, the Constitution does not give nine unelected and life-tenured judges the right to define “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” or to define “liberty in its spatial and in its more transcendent dimensions.”[26] That right belongs to the people.

 

[1] See Hannah Fingerhut, Low Public Confidence in the Supreme Court as Breyer Retires (January 27, 2022), available at: Low public confidence in Supreme Court as Breyer retires - ABC News (go.com)

[2] 524 U.S. 417 (1996).

[3] U.S. Const., Art. I, Sec. 7, Cl. 2 and 3.

[4] 524 U.S. 417.

[5] U.S. Const., Amend. VIII.

[6] 554 U.S. 407 (2008); Trop v. Dulles, 356 U.S. 86 (1958).

[7] An “electioneering communication” was defined as a “broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary.”

[8] 524 U.S. 417.

[9] U.S. Const., Amend. I.

[10] 494 U.S. 652 (1990).

[11] 570 U.S. 529 (2013).

[12] 567 U.S. 519 (2012).

[13] Id. (emphasis added).

[14] See Katarina Mantell, The Umpire of the Court – Biography and Judicial Philosophy of Chief Justice John G. Roberts, available at: The Umpire of the Court - Biography and Judicial Philosophy of Chief Justice John G. Roberts, Jr. (shu.edu)

[15] Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu)

[16] U.S. Const., Amend. XIV.

[17] 381 U.S. 479 (1965); Steven H. Aden, Roe v. Wade Was An Abuse of Discretion, Exercise in Raw Judicial Power (October 30, 2013), available at: Roe v. Wade Was an "Abuse of Discretion," Exercise in Raw Judicial Power - LifeNews.com

[18] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).

[19]  Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu)

[20] Laurence Tribe, The Supreme Court, 1972 Term–Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harvard Law Review 1, 7 (1973).

[21] 381 U.S. 479 (1965).

[22] Marbury v. Madison, 5 U.S. 137 (1803).

[23] See Strickland v. Washington, 466 U.S. 668 (1984).

[24] 521 U.S. 702 (1997).

[25] 567 U.S. 519 (2012) (emphasis added).

[26] Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas,  539 U.S. 558 (2003).

Appellate Advocacy Blog Weekly Roundup, Friday, April 22

Each week, the Appellate Advocacy Blog Weekly Roundup 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 a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Supreme Court News and Opinions:

On Monday, the Court issued an order in a capital punishment case from Texas.  In the case, in which a black man was convicted and sentenced to death, one of the jurors made a comment during jury selection about believing that non-whites are more dangerous than whites.  In its order, the Court declined to hear the case, allowing the conviction and sentence to stand.  Justice Sotomayor authored a dissent, in which Justices Breyer and Kagan joined.  The case is Love v. Texas.

• • More from SCOTUSblog
  • More from Bloomberg

On Thursday, the Court issued an opinion in a case involving entitlement of residents of Puerto Rico and other U.S. territories to federal benefits enjoyed by citizens of the states, such as Supplemental Security Income.  In its opinion, the Court by an 8-1 vote ruled that there is no Constitutional right to receive such benefits and that Congress has substantial discretion over how to structure federal tax and benefits programs for residents of the territories such that it is not unconstitutional to deny these types of benefits.  Justice Sotomayor was the sole dissenter, while Justices Thomas and Gorsuch each authored separate concurring opinions.  Justice Gorsuch's concurring opinion has drawn attention for calling on the Court to formally overturn a series of early-20th-century decisions known as the "Insular Cases," in which the Court denied a variety of Constitutional rights to people living in the territories on grounds that Gorsuch described as racist stereotypes.  The case is U.S. v. Vaello Madero.

• • More from SCOTUSblog

On Thursday, the Court issued an opinion in a case involving choice of law determinations in a case where a family brought suit in California against a Spanish museum to recover a piece of artwork expropriated by Nazis.  In its opinion, the Court concluded that California's choice of law provisions should apply instead of federal choice of law provisions, and remanded the case to the 9th Circuit for further proceedings to determine which jurisdiction's substantive property law would be applied by a California court in resolving the underlying dispute.  The case provided a small victory for the family, although only in the sense of leaving open the possibility of the 9th Circuit concluding that Spanish law should not apply to the case.  The case was notable, in part, because it was a unanimous 9-0 opinion.  The case is Cassirer v. Thyssen-Bornemisza Collection Foundation.

• • More from SCOTUSblog
  • More from NY Times

On Thursday, the Court issued an opinion in a case involving an Austin, Texas, city ordinance treating "on premises" signs differently from "off premises" signs. In the case, an outdoor advertising company sought to convert existing off premises signs to digital signs, which city ordinances prohibited (while allowing such signs for on premises signs). In its opinion, the Court ruled that the ordinance was content-neutral and therefore not subject to strict scrutiny.  By a 6-3 vote, the Court sent the case back to the lower courts to determine whether the ordinance survives a lower level of scrutiny.  Comparing the majority and dissenting opinions reveals a disagreement about the appropriate test for determining whether speech is content-neutral, as the majority concluded that the ordinance banned a broad category of communicative content and did not target a specific topic or subject matter while Justice Thomas in a dissent joined by Justices Gorsuch and Coney Barrett argued that the ordinance did discriminate based on content in prohibiting the promotion of events based on whether they occur on or off premises. The case is City of Austin v. Reagan National Advertising of Austin, LLC.

• • More from SCOTUSblog
  • More from Volokh Conspiracy

Federal Appellate Court News and Opinions:

On Thursday, the 11th Circuit Court of Appeals issued an opinion in a case striking down the University of Central Florida's Discriminatory Harassment Speech Code.  In its opinion, the court held that the school's code was unconstitutionally overbroad -- calling it "staggeringly broad" -- and found that it would prohibit any number of statements that would undoubtedly be protected by the First Amendment.  

• • More from Volokh Conspiracy

State Appellate Court News and Opinions:

In Texas, an appellate court ruled that the Texas Health and Human Services Commission policy requiring applicants for Medicaid benefits in nursing homes have "prior occupancy" is incorrect.  The decision removed the concurrent-occupancy standard that required applicants to own and live in the  home at the same time before going to a nursing home.

• • More from Law.com

Appellate Practice Tips and Techniques:

The State Bar of Texas Appellate Section is hosting a webinar on May 17 titled "Appellate Lessons from Legal Insiders:  How Appellate Practitioners Can Add Value to In-House Counsel."  The webinar will be from 12-1, on Zoom.

• • Registration Link Here

 

Appellate Jobs: 

The United States Court of Appeals for the Second Circuit is hiring a Supervising Staff Attorney.  The position would supervise four to six staff attorneys and would involve managerial duties such as recruiting, training, and evaluating the court's staff attorneys.  The position would also involve writing bench memoranda and proposed court orders for appeals and other matters before the court.

• • Posting HERE