Appellate Advocacy Blog

Arguing History

In writing today’s post, it is difficult to overlook the Supreme Court’s predictable rulings on abortion and guns, with a less certain but likely precedent-shattering decision on coach-led public-school prayer. Others will critique the decisions, extrapolate their consequences for issues beyond the cases decided, and speculate about new doctrinal implications. For today, I want to focus solely on the tools it suggests appellate advocates must use.

Dobbs and Bruen place a heightened emphasis on history. It is not the history that originalists who look to the Framers’ intent utilize, but whether an asserted constitutional liberty is “deeply rooted in this Nation’s history and tradition.” In Dobbs, the majority rejected a constitutional right of access to abortion because it held that no historical tradition, common law or otherwise, enabled women to have abortions regardless of the legislative policy choices, before the Constitution’s framing or in its aftermath or even following the ratification of the Fourteenth Amendment. In Bruen, similarly, the Court held text, history, and tradition informed the meaning of the Second Amendment, with the Court holding that history without consideration of possible countervailing government interests dictates the result.

While the decisions fail to take account of constitutionally significant differences in the principles that animate modern society, including, for example, the equal status of women and minorities or the contemporary principle of religious tolerance, an essential approach to argument emerges from the decisions. First, advocates must focus on the relevance of historical analogy. Are historical restrictions on the exercise of a right animated by the same considerations that underlie a modern restriction? Thus, for example, it is well-accepted that online publications receive the same type of free-press protections that publications that emerged from hand-operated printing presses issued in large measure since the time of John Peter Zenger.

Even though Justice Breyer’s Bruen dissent criticized the majority’s use of “law office history,” the majority’s reliance upon it constitutes the order of the day. Justice Thomas’s majority opinion rejects contrarian historical examples as “outliers,” unworthy of bearing constitutional significance. Similarly, Justice Alito’s history of abortion in Dobbs seems to be selective about what history counts.

The two decisions, then, place a burden on an advocate to make the history that favors a position compelling and part of an unbroken narrative (except for insignificant outliers). Messy renditions of history open too many doors to predilection. That historical advocacy, then, also reflect timeless principles consistent with constitutional understandings.

A pure historical approach is not a complete stranger to constitutional law. The Seventh Amendment’s right to trial by jury has long adopted that approach, defining the scope of the right by how it was practiced at common law when the Bill of Rights was ratified. Thus, then-appellate advocate John Roberts won a unanimous victory, written by Justice Thomas, where the Court recognized that jurors have always served as the “‘judges of the damages,’” even under the English common law that predated the Constitution in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (19978) (quoting Lord Townshend v. Hughes, 86 Eng. Rep. 994, 994-995 (C.P. 1677)). The decision hinged, in large part, on close 18th-century analogues to the statutory copyright damages at issue in the case. Similarly, in invalidating administrative procedures utilized by the Securities and Exchange Commission the Fifth Circuit in Jarksey v. SEC, No. 20-61007, 34 F.4th 446, 451 (5th Cir. 2022), relied upon historical analysis to find that “[c]ivil juries in particular have long served as a critical check on government power,” so that the civil enforcement at issue could not be assigned to agency adjudication.

Where constitutional rights are at issue, history has become destiny.

Appellate Advocacy Blog Weekly Roundup Friday, June 24, 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

• Today was the penultimate opinion issuance date on the Court calendar. As the term winds to a close, the Court has issued a number of highly anticipated opinions this week, perhaps the most anticipated came today.

  As foreshown by last month’s leaked opinion, for the first time, the Supreme Court has taken away a basic right, a right that has existed for nearly 50 years. Today’s decision in Dobbs v. Jackson Women’s Health Organization overturns Roe v Wade and Planned Parenthood of Southeastern Pa. v. Casey and claims that the right to abortion is not “implicitly protected by any constitutional provision, including . . . the Due Process Clause of the Fourteenth Amendment” because the right to abortion is not “deeply rooted in this Nation’s history and tradition” and “implicit in the concept of ordered liberty.” (quoting Washington v. Glucksberg.) The dissent of Justices Breyer, Sotomayor, and Kagan characterizes the right protected by Roe and Casey as “a woman’s right to decide for herself whether to bear a child.” The dissent defends the rationale of Roe and Casey and questions today’s decision, stating: “It eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy.” The dissent closes: “With sorrow—for this Court, but more, for the many millions of American women who have today lost a fundamental constitutional protection—we dissent.” See the decision and dissent and a sampling of the many reports, which cover the decision and dissent and discuss the consequences of the decision: NPR, The Associated Press, Reuters, and The New York Times.

  Earlier this week, the Court struck a New York law that required a gun-owner to show proper-cause to obtain an unrestricted license to carry a concealed firearm. The Court held that the law violated the Second Amendment right to keep and bear arms. The decision protects an individual’s right to carry a handgun for self-defense outside the home and announced a standard for courts to judge restrictions on gun rights: “The government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation.” See the decision and reports from New York Times, The Washington Times, The Los Angeles Times, and NPR.

  Also this week:

  • The Court rejected a Maine ban on tuition programs for religious schools, holding that the state cannot exclude religious schools from a state tuition program. See the decision and reports from The New York Times and USA Today.
  • The Court limited Miranda rights, holding that suspects who are not warned about the right to remain silent cannot sue police officers for damages. See the decision and reports from CNN and Bloomberg Law.

Appellate Court Opinions and News

• The Fourth Circuit affirmed a district court ruling that stuck as unconstitutional a North Carolina charter school rule that required girls to wear skirts. The court ruled that the rule, based on the view that girls are "fragile vessels" deserving of "gentle" treatment, is unconstitutional and that it violated students' equal protection rights as a policy based on gender stereotypes about the "proper place" for girls in society. See the ruling and reports from Reuters and The New York Times.

Writing like Justice Kagan, part III

Continuing the series on Justice Kagan's writing style--a third and final installment on her opinion in Gundy v. United States. The first and second installments are here and here. 

13. Teach your audience. "Recall again the provision at issue.  Congress gave the Attorney General authority to 'specify the applicability' of SORNA's requirements." "Note the tense 'was,' not 'is.' This Court has often looked for Congress' choice of verb tense to ascertain a statute's temporal reach, including when interpreting other SORNA provisions. . . . . Here, Congress' use of the past tense to define the term 'sex offender' shows that SORNA was not merely forward-looking." "Now that we have determined what [the statute] means, we can consider whether it violates the Constitution."

Reading Justice Kagan's opinions often feels like a guided tour of the law. She points out and reminds and makes plain the most important parts, as if she's still the law professor and we are all still students. But it's not condescending at all--it feels natural. This same tone might not work for an advocate, but we can all learn how to highlight what we want our audience (judges/justices) to focus on and lead them through our arguments smoothly.

14. A little self-deprecation never hurts. "(Once again, the Reynolds majority noted this history, but Justice Scalia's dissent thought that was gilding the lily. . . . He had a point, but we can't resist)."

What an artful way of acknowledging an opposition position while going against it. Some self-deprecation and acknowledgement of the reasonableness of your opponent's position is disarming and makes the reader more receptive to what you have to say.

15. Parentheticals for emphasis. "Gundy makes his stand there (and there only), insisting that the lonesome phrase 'specify the applicability' ends the issue." Within a year of SORNA's enactment (217 days, to be precise), the Attorney General determined that SORNA would apply immediately to pre-Act offenders." Only twice in this country's history (and that in a single year)have we found a delegation excessive--in each case because 'Congress has failed to articulate any policy or standard' to confine discretion." 

A well-placed parenthetical within a sentence feels like someone explaining something in a lower voice or as a quick and sometimes humorous aside. It slows down the reader a bit, but with purpose, and does not drag.

16. Repetition for emphasis. "By contrast, we have over and over upheld even very broad delegations. Here is a sample: We have approved delegations to various agencies to regulate in the 'public interest.' . . . We have sustained authorization for agencies to set 'fair and equitable' prices and 'just and reasonable' rates. . . . We more recently affirmed a delegation to an agency to issue whatever air quality standards are 'requisite to protect the public health. . . . And so forth." 

Here, Justice Kagan uses the rhetorical device of anaphora--repetition at the beginning of a sentence ("we have, we have, we have). She also uses relief (we have, we have, we have, we more recently . . . and so forth) to pleasantly wrap things up. A less skilled writer would have written something stilted like "This Court has repeatedly approved of various delegations," and then buried the lede in case parentheticals, which the reader is likely to skip. Justice Kagan weaves the cases in to make a point. Point made! (Sorry, Ross Guberman :).

17. A well-placed turn of phrase. "It is wisdom and humility alike that this Court has always upheld such 'necessities of government.'"

There are so many less effective ways to say that it's a good idea to uphold statutory delegations of authority. She hit on a memorable and almost poetic one. 

That wraps up this series. It's amazing how much you can learn by paying attention to what good writers do. Always pay attention to Justice Kagan and you'll learn a lot about persuasion. 

All in the Family

Happy Father's Day to all the appellate dads out there--my husband included. We had a rather quiet Father's Day, as one of our junior associates has been under the weather. The lack of sleep associated with the sick junior associate has left me a bit uninspired when it comes to writing. Thankfully, Tony Mauro had a fascinating post on The Marble Palace Blog that is worth sharing and discussing.

Mauro's post, inspired by the recent controversy over Ginni Thomas and her role in former President Trump's efforts to overturn the 2020 election, looks at how "justices' family members--especially when they are lawyers--can raise concerns and recusal issues."  Ginni Thomas is married to Justice Clarence Thomas.

According to Mauro, there are six sitting justices with attorneys in the family. Here is his list:

➤ Chief Justice John Roberts Jr.’s wife, Jane, is a lawyer who is managing partner at Macrae, a legal recruiter company.

➤ Virginia Thomas, as mentioned, is a lawyer.

➤ Stephen Breyer’s brother, Charles, is a lawyer and federal judge, and Justice Breyer recuses himself when a case handled by his brother lands at the Supreme Court.

➤ Samuel Alito Jr.’s son, Philip, is a lawyer and line assistant U.S. attorney in the narcotics unit at the Eastern District of Virginia.

➤ Brett Kavanaugh’s parents, Everett and Martha, are both retired lawyers.

➤ Amy Coney Barrett’s husband, Jesse Barrett, is a partner at the Indiana law firm SouthBank Legal. Her sister Amanda Coney Williams is a lawyer, but it is not certain where she practices. Her father, Michael Coney, was a lawyer for Shell Oil. Justice Barrett did not recuse herself when she participated in a 2021 case in which Shell Oil was a party.

Justices married to attorneys is nothing new. At the beginning of his post, Mauro notes the example of Abe Fortas whose wife Carolyn Agger was an attorney.  Justices Ruth Bader Ginsburg and Sandra Day O'Connor were both married to attorneys.

Moving beyond the highest court in the land, I can think of several other prominent attorney couples.  Current Arizona AG (and U.S. Senate candidate) Mark Brnovich's wife Susan Brnovich is a federal district court judge. Fourth Circuit Judge Diana Gribbon Motz is married to J. Frederick Motz, a Maryland District Court judge. Former Fourth Circuit Judge Allyson Duncan is married to Magistrate Judges William A. Webb. These are just a few examples, I know that there are countless more.

Mauro notes in his blog post that in 1993, seven members of the Supreme Court signed and publicized a recusal policy for when family members were part of a case. In relevant part, the policy stated "Absent some special factor, therefore, we will not recuse ourselves by reason of a relative’s participation as a lawyer in earlier stages of the case. … We shall recuse ourselves whenever, to our knowledge, a relative has been lead counsel below." Of the justices who signed the policy, only Justice Thomas remains on the Court. Perhaps it is time for the Court to revisit this issue. 

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id. 

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

Seizing Control of Your Argument

When writing an appellate brief, an advocate has the one true opportunity to seize control of the argument (unlike during oral argument, which often is hijacked by a judge). Don't waste this opportunity to tell the appellate court exactly what it should do and why it should do it. There are ways to make the argument yours, steering it in the direction you want the court to go.

I often find that law students writing appellate briefs for the first time are hesitant to seize control of their argument. They frequently lack confidence because they are inexperienced and feel they lack sufficient knowledge to tell the court what the law is and how it should rule.

Of course, nothing makes up for experience and knowledge. Even attorneys with experience and knowledge, though, have problems with persuasive writing. Being persuasive is about making your argument with confidence, and as someone once said: you don't have confidence; you do confidence.

It goes without saying that a good appellate advocate must know the facts of the case and the law that applies to the case inside and out. That obviously is a good start. But what can a appellate advocate do to ensure that the document is a persuasive appellate brief and not an objective essay or law review article? Well, there are a few tools and strategies that all good appellate advocates should think about using but often don't.

• Use favorable facts in the Questions Presented to make them persuasive. This preliminary portion of an appellate brief often is overlooked. And advocates frequently include no facts in them even though that is what often makes or breaks an argument. Even appellees usually can use facts to frame the questions in a way that favors their position.
• Make sure to write a persuasive--but honest and accurate--Statement of the Facts. The fact statement should tell a story, not recite testimony. A good appellate advocate can tell a story in such a way that the reader wants to rule for that advocate's client before even reading the actual legal argument. Emphasize the good facts by placing them in places of importance in the story. And don't forget to include favorable background facts, even if they aren't outcome determinative, if they can contribute to the overall pathos of your brief. While you can't leave out relevant facts that are bad for your position, there are ways to downplay them (for instance, burying them in the middle of a paragraph or using passive voice in stating them).
• Start each main argument section with an introductory paragraph that includes your thesis for that section--what is your contention? Put this in definitive and assertive terms.
• Write general rules--if possible--in a way that favors your client. Some advocates consider general rules as neutral statements that set up the persuasive argument but aren't really part of it. However, this portion of the argument should not be ignored. If there is a way to state a general rule that is positive for your side--but, of course, still accurate--don't be afraid to state it that way.
• Use topic sentences. This particularly is important when using a case to illustrate a rule. Why let the reader decide what he or she thinks about the case you are discussing? Tell the reader upfront what the case means before describing its facts and holding. In many ways, this topic sentence will be like a sub-rule inferred from the case. Make sure to not use a general rule you already have stated as your topic sentence; make it is something new and more specific than the general rules.
• Include strong concluding paragraphs in each section of your argument. This is the opportunity to again state your ultimate thesis, and it never hurts to tell the reader again.
• Don't be afraid to tell the appellate court what it should do. For whatever reason, the word should usually is assertive enough without going over the line. Many, if not most advocates, would not go so far as to tell a court what it must do.

Seizing control of the argument in a brief means making it easier for the reader to understand your position and to believe it is the only right position. Your argument will be easier to understand and more convincing if you use various persuasive tools and strategies like the ones set out above.

Knowing When to Sit Down

Years ago, I witnessed a portion of an argument before the Supreme Court of India that was then in its third day with additional anticipated days of argument remaining. When I spoke to members of the Supreme Court bar afterwards, one experienced lawyer expressed astonishment that U.S. Supreme Court arguments were 30 minutes per side. How, he asked, is a lawyer going to “warm up” in that amount of time?

Last week, I argued a case in the Seventh Circuit. It rekindled memories of that trip to India, not because more than the usual amount of time was allotted, but because of how little time was needed. I represented the Appellee with 15 minutes of argument time. I was also in the unusual position of having three recent sister circuits ruling in favor of my position, along with more than 100 district court decisions. Even though I had suggested in my brief that argument would not further inform the court, oral argument was ordered.

My opponent was largely relegated to policy arguments. I planned three different approaches to my argument depending on how my opponent had faired. As expected, the Court was well prepared and pummeled my opponent with questions that could have come from my brief. He ended up using his entire 15 minutes responding to questions and reserved no time for rebuttal.

 As I stood at the podium, the presiding judge immediately asked questions about whether any circuit had issued new decisions on our issues since I had filed a 28(j) letter in March and whether any other similar cases from within the circuit were pending on appeal. When I answered no to both questions, I was finally able to introduce myself. While I used a small amount of time to add favorable precision to some statements made during my opponent’s time at the podium, the questions from the bench tended to focus on whether a narrow decision would be sufficient to affirm our motion for remand, where the defendant had removed claiming federal-officer removal, complete preemption, and an embedded federal question. I understood the panel’s questions to favor affirmance. As the questions wound down, I realized the court was satisfied and that no further argument was necessary. I simply said that, unless there were any further questions for me, I ask that the district court be affirmed.

When I did so, about seven of my 15 minutes remained. Using more time was both unnecessary and likely counterproductive. The judges also likely appreciated my decision to end the argument early. From my perspective, even though the decision is under advisement, the argument seemed to go very well – even if I had not had the amount of time to warm up!

A Few Commonsense Tips on How to Persuade Judges (and People)

It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.

1.    Keep it simple, talk like a normal human being, and get out of the weeds.

If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.

After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:

Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.

This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:

Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.

Again, this isn’t perfect, but you get the point. Keep it simple and direct.

2.    Address the court’s questions and concerns.

Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.

Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:

Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.

Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.

Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:

Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?

Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.

That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:

The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.

This response, although not perfect, responds directly to the justice’s concerns.

3.    Acknowledge weaknesses in your argument.

Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.

The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.

Whatever.

That was bad.

Very bad.

And very damaging to her credibility.

4.    Be passionate and emotional (when appropriate).

It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.

5.    Be likable and relatable.

This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

• • More from Bloomberg

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

• • More from SCOTUSblog

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

• • More from SCOTUSblog

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

• • More from the Sacramento Bee

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

• • Details HERE

Pop Culture and Fictitious Parties

I have blogged before on judges using pop culture references in judicial opinions. In my mind that remains an interesting, debatable issue. What is not a debatable issue, or at least should not be an issue, is the ability of fictitious characters from pop culture to file lawsuits. But, just in case you are confused, a Pennsylvania Court has made clear (albeit in a non-precedential opinion) that Tom Bombadil, a character from the Lord of the Rings, cannot bring a cause of action to retake possession of trailers that were lost in a previous lawsuit for non-payment of rent. 

The procedural history of the case is a bit dicey, but apparently several storage trailers were left on property belonging to a Gail Gustafson.  According to the complaint filed by Tom Bombadil and a Timothy Parr, "Tim Parr was renting the open space from Appellee Gail E. Gustafson and that there was a breakdown of the relationship resulting in the six trailers and the contents therein remaining on the land." A landlord tenant lawsuit resulted in Parr losing "access to the six trailers and the personal property contained therein." Here is where things get confusing. It was at this point that Parr and Bombadil, acting pro se, filed suit to regain possession of the trailers. They apparently claimed "that Tim Parr is a fictional tenant against whom the Appellees obtained an order for possession in the underlying landlord tenant matter." 

Gustafson argued that the complaint should be dismissed for several reasons, including that it "was initiated by fictional characters such as 'John Michaels' and 'Tom Bombadil,' and because Timothy D. Parr regularly denied his own existence." The trial court held a zoom hearing on Gustafson's preliminary objects, but discontinued the hearing in favor of an in-person hearing after the Tom Bombadil who appeared on zoom was "unable to conduct himself with the requisite decorum for a court proceeding." Neither Bombadil or Parr appeared at the in person hearing.

Although Bombadil and Parr timely appealed, the Pennsylvania court affirmed the trial court's dismissal of the action. It also ordered the trial court to award attorneys' fees to the Appellees and identify "the party against who that award will be directed." 

The moral of the story? Well, the Pennsylvania court summed it up quite well--"An appeal taken by a fictious individual to avoid preclusive effect of a prior judgment is more than frivolous and that alone would warrant the imposition of attorneys' fees."

Thanks Derek Muller who blogs at Excess of Democracy for sharing the opinion!

Whither (wither?) Strict Scrutiny?

Professor Gerald Gunther once memorably described strict scrutiny as “‘strict’ in theory and fatal in fact.”[1] And, courts have employed that strict scrutiny to content-based restrictions on free speech,[2] as well as burdens on fundamental rights under both due process[3] and equal protection.[4] It is easy to suppose, even if wrong, that strict scrutiny applies to all fundamental rights.

However, the Supreme Court has adopted different standards for different constitutional rights that make such a knee-jerk response to the presence of a fundamental right the wrong move. For example, the free-exercise clause in a much-criticized decision written by Justice Scalia limited the scope of this protection by requiring the state action to target religion or a religion for different treatment, as opposed to being a valid, neutral law of general applicability.[5] The Seventh Amendment’s jury-trial right also eschews strict scrutiny in favor of a historical test.[6]

Recently, a concurring opinion (to his own majority opinion) by Eleventh Circuit Judge Kevin Newsom speculated on the proper test for the Second Amendment.[7] He rejected one based on levels of scrutiny because the majority in District of Columbia v. Heller[8] expressly shunned any type of “judge-empowering ‘interest-balancing inquiry.’”[9] 554 U.S. at 634.

Newsom instead endorsed a view he credits to a Justice Kavanaugh dissent written when Kavanaugh sat on the D.C. Circuit. That opinion stated that “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”[10] Newsom, though, is not entirely happy with that formulation. He questions its inclusion of “tradition” as a metric.[11] As he explains, if tradition represents the original public meaning, it duplicates what history provides.[12] If it “expand[s] the inquiry beyond the original public meaning—say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.”[13]

Newsom adds a “bookmark for future reflection and inquiry than anything else” to his opinion.[14] He states that it is problematic to reject balancing tests in the context of the Second Amendment, yet still apply it to other fundamental rights. Using the First Amendment as an example, he criticizes the balancing tests adopted there as “so choked with different variations of means-ends tests that one sometimes forgets what the constitutional text even says.”[15] He says that the “doctrine is judge-empowering and, I fear, freedom-diluting.”[16] He suggests that “bigger questions” need to be raised to decide whether applying scrutiny at any level should continue.

The concurrence is provocative and suggests that the roiling of doctrine in other areas of law may extend to how courts should view fundamental rights. However, there is no holy grail that reduces judicial discretion in favor of assuring liberty. Construing constitutional rights is no less subject to manipulation based on a judge’s views if the judge subscribes to the original public meaning school of interpretation, rather than balancing tests. Newsom appears to agree that Heller “was perhaps ‘the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.’”[17] Yet, Heller adopted a historical analysis others have criticized as skewed to obtain a result.[18] Those who expect the pending SCOTUS decision in N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen[19] before the Supreme Court to invalidate New York’s century-old restrictive gun law recognize that history supporting the type of government authority the statute represents is likely to make little difference to the majority. And, original public meaning cannot reflect our rejection of ideas about race and gender from the founding period.

So, what should we make of Newsom’s concurrence? The opinion seems further evidence that nothing about our approach to constitutional law is settled – and the questioning of strict scrutiny as an interpretative tool is only beginning.

 

[1] Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

[2] See City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

[3] Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

[4] See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).

[5] Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).

[6] Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).

[7] United States v. Jimenez-Shilon, No. 20-13139, 2022 WL 1613203, at *7 (11th Cir. May 23, 2022) (Newsom, J., concurring).

[8]  554 U.S. 570 (2008).

[9] Jimenez-Shilon, 2022 WL 1613203, at *8 (Newsom, J., concurring).

[10] Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

[11] Jimenez-Shilon, 2022 WL 1613203, at *8 n.2 (Newsom, J., concurring).

[12] Id. (Newsom, J., concurring).

[13] Id. (Newsom, J., concurring).

[14] Id. at *9 (Newsom, J., concurring).

[15] Id. at *10(Newsom, J., concurring).

[16] Id. at *11 (Newsom, J., concurring).

[17] Id. at *8 (Newsom, J., concurring) (quoting United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)).

[18] See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Mark Anthony Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts. J. 413 (2020).

[19] No. 20-843.

Appellate Advocacy Blog Weekly Roundup Friday, May 27, 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

• On Monday, the Court surprised many when it unanimously ruled against a mandatory arbitration clause. Specifically, the Court overturned a specific rule that had allowed a defendant to invoke an arbitration clause even after having participated in litigation. The suit sought overtime pay from a Taco Bell franchise. The defendant participated in the litigation for over eight months before finally moving to compel arbitration. The Court ruled that by waiting, the defendant had waived the right to compel arbitration. The decision is rooted in the Federal Arbitration Act, which requires courts to put arbitration contracts on “equal footing” with other kinds of contracts. Thus, the Court rejected the argument that arbitration should be favored and held “a court must hold a party to its arbitration contract just as the court would to any other kind.” Further, the Court ruled that “a court may not devise novel rules to favor arbitration over litigation. … [F]ederal policy is about treating arbitration contracts like all others, not about fostering arbitration.” See the decision in Morgan v. Sundance and reports from Bloomberg, Slate, and The Des Moines Register.

• The Supreme Court ruled against two death row inmates and sharply limited a prisoner’s ability to challenge a conviction in federal court based on a claim of ineffective counsel in a state proceeding. The Court held that a federal court considering a habeas corpus petition “may not conduct an evidentiary hearing or otherwise consider evidence beyond the state-court record based on ineffective assistance of state post-conviction counsel.” The dissent criticized the ruling, arguing that the majority “all but overrules two recent precedents that recognized a critical exception to the general rule that federal courts may not consider claims on habeas review that were not raised in state court[: that] that a federal court may consider a habeas petitioner’s substantial claim of ineffective assistance of trial counsel (a “trial-ineffectiveness” claim), even if not presented in state court.” See the decision in Shinn v. Martinez Ramirez and reports from The New York Times, The Washington Post, and SCOTUSBlog.

Appellate Court Opinions and News

• The Eleventh Circuit struck part of a Florida law that required social media platforms to display posts by political candidates and “journalistic enterprises,” even if such posts violate the platforms’ rules of conduct. The court held that the law was an unconstitutional violation of the First Amendment. The court held that  it is substantially likely that social media companies — even the biggest ones — are private actors whose rights the First Amendment protects" and ruled, "[p]ut simply . . . the government can't tell a private person or entity what to say or how to say it.” See the decision and reports from NPR, Bloomberg News, and The Washington Post.
  
  
• The Fourth Circuit has ruled that a candidate who takes part in an insurrection may be barred from holding public office under the 14th Amendment of the US Constitution. The decision came in a case that sought to bar Madison Cawthorn’s candidacy. See decision and report from Bloomberg News.

Writing like Justice Kagan, part II

Continuing last week's post analyzing Justice Kagan's writing techniques from Gundy v. United States that make her such an effective communicator.

7. Signal attention to prevent skipping: "Given that standard, a nondelegation inquiry always begins (and often almost ends) with statutory interpretation." "And indeed, once a court interprets the statute, it may find that the constitutional question all but answers itself." She signals to the reader that statutory construction is going to be key here, which draws the readers attention to what is often otherwise just boring explication (this statute requires this and that, etc.).

8. Pair opposites. "begins (and often almost ends)"; "The constitutional question is whether Congress has supplied an intelligible principle to guide the delegee's use of discretion. So the answer requires construing the challenged statute to figure out what task it delegates and what instructions it provides." "And indeed, once a court interprets the statute, it may find that the constitutional question all but answers itself." Begin-end; question-answer. Pairing opposites provides a sense of balance and contrast, and hints that the end and the answers are quick in coming.

9., 10. Short sentence beginners and short sentences to draw attention. "That is the case here, because [the statute] does not give the Attorney General anything like the 'unguided' and 'unchecked' authority that Gundy says. . . . The provision, in Gundy's view, 'grants the Attorney General plenary power to determine [the statute's] applicability to pre-Act offenders . . . . If that were so, we would face a nondelegation question. But it is not. This Court has already interpreted [the statute] to say something different . . . . And revisiting the issue yet more fully today, we reach the same conclusion. The text, considered alongside its context, purpose, and history, makes clear . . . ." "And no Attorney General has used (or apprarently, thought to use) [the statute] in any more expansive way. To the contrary." Many of Justice Kagan's first words in each sentence are single-syllable, which provide a breezy beginning and help speed the reader along. She also uses short sentences--and even sentence fragments--to draw attention to a point before returning to her normal sentence cadence. Crisp!

11. Nutshell your arguments. "The delegation was a stopgap, and nothing more." This is a great line. After going into great detail about what the act requires (and what it does not), she sums up, in plain English, exactly what the delegation does that makes it permissible. In this same vein, at oral argument in Wooden v. United States, counsel remarked that she had summed up the case better than he could in a month's worth of moots preparing for the argument. For those who have listened to her over the years, this ability is often on display at argument, but she does it equally well in her writing. 

12. More colloquialisms. "Gundy dismisses Reynolds's relevance, but his arguments come up short." "The different answers on offer here reflect competing views of statutory interpretation." "So the mismatch between [the statute's] statement of purpose and Gundy's view of [it] is as stark as stark comes." So many attorneys would have just said "fail," "each party offers," and "there is a mismatch." Justice Kagan says those things better and gives the reader little pleasing surprises rather than the same-ol' same ol'.

I have yet more thoughts on this opinion, which I'll continue next time.

 

 

Camille Vasquez Is a Rockstar

Actor Johnny Depp is currently suing his ex-wife, actress Amber Heard, for defamation, and the trial is both entertaining and educational – particularly for law students and lawyers. The reason for that is Camille Vasquez, who graduated from the University of Southern California and Southwestern Law School, and whose performance at the trial is equivalent to a master class in persuasive advocacy.

Put simply, Camille Vasquez is a rockstar.

Law students (and lawyers) should watch Camille because they will learn more from her in a few hours than they will likely learn in three years of law school. Below are a few reasons why Camille Vasquez is an outstanding attorney, and why she represents the best of the legal profession.

1.    She is confident and owns the courtroom.

Whether it is conducting the cross-examination of Amber Heard or objecting to the adversary’s questions on direct examination, Camille Vasquez is incredibly confident and self-assured. Quite frankly, Vasquez has swagger. She knows she is among the best. She owns the courtroom. And if you try to bullshit her, it won’t end well for you.

Such confidence, which Vasquez has exuded in all aspects of the trial, is critical to creating the perception with the court and jury that you know what you’re doing, and that you are a credible advocate. When you create that impression, the judge and jury are more likely to view you and your client more favorably – and rule in your favor.

2.    She uses non-verbal techniques effectively.

When arguing before a judge or jury, your non-verbal techniques are equally, if not more, important, than what you say. Non-verbal techniques, such as posture, facial expressions, eye contact, and variance in tone, attitude, and emphasis, convey to the jury, among other things, your confidence, knowledge of the record, and belief in your position.

Camille Vasquez uses non-verbal techniques extremely effectively. When Vasquez was cross-examining Amber Heard, for example, she stood upright, at times leaning into the podium to emphasize a critical point. She varied her facial expressions to convey skepticism, if not disbelief, of some of Heard’s responses. She remained focused and confident at all times. She never laughed or displayed inappropriate emotional responses. She never fidgeted, folded her arms, or paced about the courtroom. She listened to Heard’s responses and retained eye contact. In short, her non-verbal communications showed that she had perfect knowledge of the record and that she was owning the witness and the courtroom.

3.    She knows how to adjust and follow up during cross-examination.

During cross-examination, Camille Vasquez adjusted effectively to Amber Heard’s sometimes-evasive responses with follow-up questions that forced Heard to concede unfavorable facts. In so doing, Vasquez didn’t simply recite a list of questions and hope that she would receive a favorable answer. Instead, she knew Heard was going to be evasive at times, and she adjusted in the moment, asking follow-up questions that would not allow Heard to avoid conceding unfavorable facts. For example, during cross-examination, Heard testified that she had pledged/donated seven million dollars to a particular charity. Vasquez refused to allow Heard to conflate the distinction between pledging and donating money, forcing Heard to admit that, although she had pledged seven million dollars to a charity, she never actually donated any money to that charity.

4.    She knows how to strategically include comments that undercut a witness’s credibility.

Effective advocacy includes strategically commenting on a witness’s testimony during cross-examination to express skepticism about a witness’s truthfulness or highlight a witness’s non-responsiveness. Simply put, cross-examination is not merely about asking questions. It’s about having a conversation with the witness and, through excellent questions, non-verbal communication, and strategic commentary on the witness’s responses, owning that conversation and eliciting facts that damage the adversary’s credibility. For example, during the cross-examination, Vasquez made comments such as:

“That wasn’t my question, Ms. Heard.” (conveying to the jury that Heard was being evasive)

“You know what a deposition is, right Ms. Heard?” (implying that Heard is ignorant and trying to hide unfavorable facts)

“You understand the difference between pledging money and donating money, right?” (this may not be the exact quote, but it’s similar and conveys that Ms. Heard’s attempt to say that pledging and donating money are synonymous makes no sense)

The inclusion of such comments enables a lawyer to communicate subtly to the jury that the witness’s testimony is not credible. Put another way, when cross-examining a witness, you can still “testify” if you do so strategically and subtly. Camille Vasquez did that very effectively.

5.    She is prepared and has outworked Amber Heard’s attorneys.

This point doesn’t need much explanation, except to say that many people have no idea what it means to be truly prepared for a trial (or a midterm or final examination, for that matter). Preparation means, among other things, knowing every inch of the record. It means being able to recite the page and line number of a deposition when conducting a direct or cross-examination. It means knowing the rules of evidence and practicing objections thousands of times, and being able to anticipate responses to those objections. It means knowing the relevant case law so well that you never need notes.

Camille Vasquez was incredibly prepared for this trial and almost certainly as prepared as any human being can be for a trial. She knew the rules of evidence so well that every objectionable question from Heard’s attorney was met with an objection by Vasquez – and sustained nearly every time. The link below shows the preparation – and sheer talent – that Vasquez has displayed during the trial.

Amber Heard's Lawyer SHUT DOWN! 40+ OBJECTIONS Within 19 MINUTES (Camille Vasquez) - YouTube

6.    She’s very smart.

Intelligence matters, and great lawyers are highly intelligent. Camille Vasquez is no exception – her analytical abilities, quick thinking, and ability to articulate complex points in a clear and relatable manner, reflect her impressive intellect.

7.    She cares for and is a passionate advocate for her client.

This trial has shown that Camille Vasquez is a kind and passionate person who cares deeply for her clients and for the causes that she is advocating. She represents Johnny Depp with compassion and empathy, and through her interactions with Depp, you can obviously see that she cares about him and is doing everything possible to achieve a favorable result.

In short, she is a good person – and good people make the best attorneys.

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
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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
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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.

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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.