Appellate Advocacy Blog

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

Monday, November 24, 2014

A Strategy to Withholding Dissent?

Check out this post on Strategically Withholding Dissent which examines Justice Sotomayor’s decision to forcefully dissent in Fisher v. Texas. Some say timing is everything, and in the law that statement is more often true than not. Historically, we can see how attorneys have strategically filed appeals throughout history, particularly in the context of the civil rights movement. Consider, for example, Plessy v. Ferguson, Brown v. Board, Gideon v. Wainwright, and Loving v. Virginia, to name just a few. We can also see how the justices use the dissent and concurring opinions strategically to advance certain agendas, sway votes, or undermine the legal arguments of the majority. But the notion of strategically withholding dissent entirely is a curious one that requires analysis of the real impact of a dissent. In this blog post, the author concludes that Sotomayor’s dissent influenced the Court in such a way that it necessarily avoided ruling on the merits of Fisher back in 2013. The question now becomes what difference, if any, does a couple of years make? Maybe the Court will rule in exactly the same way it would have back in 2013 had it not been for Sotomayor’s dissent. Perhaps Sotomayor just bought some time since, without her dissent, the Court would likely have rendered a merits decision back in 2013. In which case, it may be that Justice Sotomayor accomplished the very purpose intended, and the only purpose that could have been—to delay an inevitable merits decision in Fisher. I guess only time will tell…

November 24, 2014 in Appellate Advocacy, United States Supreme Court | Permalink | Comments (0)

Thursday, November 20, 2014

Maryland Appellate Blog Post on Federal Judicial Vacancies

In a new post on the Maryland Appellate BlogSteve Keppler offers a useful reminder about federal judicial vacancy problem and offers some proposals for addressing it. As he suggests, "the next six months provide a window of time when Congress can reform judicial policy for the next president — before we have much of an idea who the next president will be." 

After a useful reminder about just how understaffed the federal bench is, he offers these three recommendations:  Empty Bench

  1. Create New Judgeships for the Next President to Fill 
  1. Encourage More Appellate Judges to Take Senior Status and to Maintain a Higher Workload.
  1. Don’t Make Consensus Nominees Wait for Floor Votes.

The first has the support of the Judicial Conference, which issued a set of Judgeship Recommendations to that effect. The second is a reform of an already growing practice of employing senior judges in a more active role. The third recommends a change to Senate practice that would encourage the President to nominate consensus nominees. All interesting proposals with some opportunity to side-step political barriers and address the issue.

You can read details of these proposals at the Maryland Appellate Blog: Three Things Congress Should Do in 2015 About Judges.

November 20, 2014 in Appellate Court Reform, Current Affairs, Federal Appeals Courts | Permalink | Comments (0)

Sunday, November 9, 2014

Nevada Votes for Intermediate Appellate Court

Following up on my earlier post regarding the Nevada ballot question regarding the addition of an intermediate appellate court in Nevada, voters in that state approved the measure by only a slight margin. Ballotpedia has this summary.  This move leaves only nine states without an intermediate appellate court.

Seah Whaley of the The Las Vegas Review Journal reports that legislative appropriation is underway and seems uncontroversial. Applications for newly created judgeships are being taken by the Nevada Commission on Judicial Selection with interviews planned for early December and appointment by the Governor in early 2015.  The court will sit in both Carson City and Las Vegas.

Appeals will apparently still be filed with the Nevada Supreme Court, which will then assign some cases to the intermediate appellate court. This strikes me as an unusual arrangement.

November 9, 2014 in Appellate Court Reform, Appellate Procedure, Current Affairs, State Appeals Courts | Permalink | Comments (4)

Thursday, November 6, 2014

The Sixth Circuit Throws a Split on Same-Sex Marriage

Today the Sixth Circuit issued its decision in DeBoer v. Snyder and created the circuit split that the Supreme Court has presumably been waiting for.  In a carefully reasoned opinion, the Sixth Circuit narrowly interpreted precedent and the most recent line of Supreme Court decisions on marriage and sexual relations.  Early in its opinion the Court stated, “What we have authority to decide . . . is a legal question: Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?”  On this question, the Court ruled in favor of the State.

In the opinion, the Sixth Circuit walks through the role of the intermediate appellate courts and the requirement to defer to U.S. Supreme Court precedent.  Looking to Baker v. Nelson, 409 U.S. 810 (1972), the court reasoned that it had not been overruled either explicitly or implicitly by United States v. Windsor, 133 S. Ct. 2675 (2013).  In fact, it determined that Windsor was not a case about the right to marry, but rather a case about the right to enjoy a privilege granted by a state.  The court went as far as to reconcile the two cases stating that “Windsor invalidated a federal law that refused to respect state laws permitting gay marriage, while Baker upheld the right of the people of a State to define marriage as they see it.”  In support of its decision, the Court also relied on originalism and rational basis review. 

Boiled down, the Sixth Circuit basically views the question as one that ought to be decided through the state democratic processes rather than through the courts.  These three lines sum it up best: “History is replete with examples of love, sex, and marriage tainted by hypocrisy. Without it, half of the world’s literature, and three-quarters of its woe, would disappear. Throughout, we have never leveraged these inconsistencies about deeply personal, sometimes existential, views of marriage into a ground for constitutionalizing the field. Instead, we have allowed state democratic forces to fix the problems as they emerge and as evolving community mores show they should be fixed.”

November 6, 2014 in Appellate Advocacy, Appellate Justice, Current Affairs, Federal Appeals Courts | Permalink | Comments (1)