Appellate Advocacy Blog

Expand the size of the Supreme Court?

A few weeks ago I saw an article in Time entitled "The Supreme Court Doesn't Need 9 Justices. It Needs 27." The article, written by Jacob Hale Russell, assistant professor law at Rutgers, argues that the "institutional design" of the Supreme Court is "badly broken," and that a larger Court that operated more like the courts of appeal, would have many advantages.  Among the advantages:  hearing more cases, reducing the influence of any single justice (or any single retirement), and reduce the politicization of the Court.

When I first heard about this idea, I thought that it was terrible.  Upon further reflection, however, I do think that Prof. Russell makes some excellent points.  Nonetheless, I don't think that his idea would work, for several reasons.  First, it would be difficult to manage.  I could see a larger Supreme Court take a lot of cases en banc.  The Supreme Court gets the tough cases--the hardest ones to resolve.  It gets the cases that split the federal circuit courts.  It is often the hard cases in the circuits that go en banc (before heading to the Supreme Court).  So a docket of the hardest cases means that justices would have significant panel work, and then significant en banc work.  I don't think that they would like that set-up.  Second, I don't think we can reduce the politicization of the Court until we change how we view the Court.  Prof. Russell has this great paragraph in his article:

Our framers’ conception of constitutional interpretation was far more complicated, messy, and democratic. Constitutional interpretation was seen as fundamentally in the hands of the people, not of courts, much less of nine unelected justices, as Larry Kramer and others have cogently demonstrated. Judicial supremacy, the idea that the court is the ultimate interpreter of the Constitution, took off later, arguably not gaining wide acceptance until the past half-century. In that transition, we the people abdicated our constitutional role—creating and interpreting fundamental rights as part of an ongoing process—to a non-transparent, non-democratic, non-representative body of nine. That is dangerous: we are taught, from our earliest civics courses, to revere the court as higher, more “supreme,” and less subject to the whims of politics—despite the increasingly close splits and increasingly frequent reversals of precedent, the political maelstrom surrounding each nomination, and the fact that it is just one of several co-equal branches of government. We have been lulled into believing that the Supreme Court possesses oracular powers to divine the Constitution’s meaning in a way the rest of us can’t.

Until this view changes, the Court will be political.  Sure, more justices would reduce the influence of any one justice and make vacancies less of a big deal, but they would still be significant, especially if cases frequently went en banc.  Each justice would matter--both for the vote to take a case en banc and for the ultimate resolution of the case.  Furthermore, while justice (and federal judges) are unelected, their selection often plays a big role in federal elections.  I know of people who voted for President Trump specifically because they believed he would pick good judges (and justices).  I suspect that the current Supreme Court vacancy will play a big role in the mid-term Senate elections too.

Still, as Prof. Russell points out, Congress has the ability to expand the size of the Court.  Only time will tell if Congress ever acts on that authority.

Circuit Court Confirmation News

Last week was a big one for circuit court confirmations.  First, Andrew Oldham, one of President Trump's nominees to the Fifth Circuit, was confirmed by the Senate.  I was personally thrilled with this news.  Andy was one of my classmates at Harvard, and I cannot think of a nicer person.  He is kind, genuine, friendly, and very smart.  His personality actually reminds me a lot of Justice Elena Kagan, although I suspect that the two of them might disagree on substantive issues.  Andy is the fifth Trump nominee confirmed to the Fifth Circuit.  The two other circuits with a high number of Trump confirmations are the Sixth and Seventh with four judges each.  You can see all of President Trump's judicial confirmations here.

In addition to Andy's confirmation, four other appellate court nominees made it out of the Judiciary Committee.  A few weeks ago I wrote about Senator Flake's decision to hold up judicial nominees over President Trump's tariff policy.  Apparently, now that the Senate has voted on the tariff issue, Senator Flake is removing his automatic hold.

Finally, Ninth Circuit nominee Ryan Bounds was set to be confirmed by the Senate on July 19.  However, his nomination was suddenly withdrawn after it became clear that he didn't have the votes for confirmation.  The opposition to Bounds stemmed in part from 20 year old college writings that he has expressed regret over. Last Friday, Law.com ran a story on what we can learn from the failed nomination.  I found their observations to be interesting.

First, "it only takes one."  With Senator McCain out, the Republicans hold a razor thin margin in the Senate.  If one senator decides to not support a nominee, then that nomination will fail.

The second and third points in the article both address more cooperation between the White House and the home state senators, even if they are Democrats. This is a touchy topic and one that comes up with nominations whenever the President and home state senators are of different parties. According to the article,

When the nomination was initially announced last year, Oregon’s two Democratic U.S. senators—Ron Wyden and Jeff Merkley—refused to sign off on his nomination since he wasn’t vetted through their bipartisan selection committee. In February, after the senator’s committee convened, they included Bounds on a list of four candidates ranked the highest to the White House.

But shortly thereafter a liberal interest group surfaced opinion pieces Bounds wrote while an undergraduate at Stanford University—article in which Bounds criticized “race-focused” campus groups and urged the school to adopt a “beyond a reasonable doubt” approach to campus sexual assault.

Citing the lack of disclosure and the content of the writings, Wyden and Merkley urged the White House not to move forward with his nomination. The senators said that five of the seven members of their vetting committee said they would not have approved Bounds as a nominee had the writings been handed over.

In Bounds's defense, he has explained that the Oregon senators never asked for his college writings and that he provided those writings to the Senate Judiciary Committee.

As the Law.com article points out, there are 6 (soon to be 7) vacancies on the Ninth Circuit.  So far, only one nominee has been confirmed.  President Trump has the potential to make a huge impact on the Ninth Circuit, but he will likely have to work with Democrat senators in blue states to get it done.

In the interest of full disclosure, I was sorry to hear the news about Ryan's nomination being withdrawn. I worked with Ryan in the Office of Legal Policy over a decade ago, and I found him to be fair and kind to all people.  I will watch with interest who the White House nominates for the seat.

The Approaching Legal Writing Disruption?

As I often tell my students: lawyers can't afford to keep ignoring technological innovation. Two leading professors, Dana Remus and Frank Levy, study the tech threat to large law firms. Their recent paper concluded that if we put just the existing legal technology to work and maintain the status quo, nearly 15% of all lawyer hours would instantly disappear. Imagine what that number will be in five years, or ten?

But we have an option. Instead of letting technology replace what we lawyers do, we can instead use technology to help us do even more for our clients and the public.

Step into any law firm today and the fingerprints of technology are obvious. No longer do banker's boxes fill the halls, overflowing with papers. Emails have replaced phone calls. Attorneys meet over vast distances via high-tech video conferencing setups. Millions of documents are exchanged with the click of a button.

But the changes to how we write and research don't seem so drastic. We still type out our briefs, largely from scratch. We look for cases on Westlaw and Lexis using reference systems based on the old print versions.

Worry not, though. Technology is coming for legal writing and research. Last post, I offered some baby steps to help you start using more technology. Today, I've got more bold tools that can push you to new legal writing heights. Some of these are harbingers of what may be coming: technology so powerful that the way we write and research will never be the same. 

To start, the boldest of all: AI, machine learning, big data, analytics--all the exciting technology buzz words of today. Let's start with Ravel. I've mentioned this program in passing, but the company recently rolled out new features that make it one of the most powerful and exciting legal research tools in existence. Ravel describes itself as "a new category of intelligent tool that combines legal research and analytics." Under the hood, Ravel is cutting edge: machine learning, computational linguistics, and data engineering give you access to entirely different ways of researching and understanding the law. 

I could spend an entire post gushing over all the things Ravel is doing, but let me just point out a couple for now. Ravel can tell you which authority--or even which particular language--persuaded your judge in prior cases. We legal writing professors tell students to "write to their audience." But we mean this as general guidance. Can you imagine knowing the precise cases, phrases, and language that convinced your judge to rule a certain way in the past? 

Ravel can lay out your judge's entire decision history for you, including what the judge has done in cases with similar legal issues to yours. It can tell you the chances of winning on a motion to dismiss in a security case before a particular judge. It can even analyze your judge's judicial writing.

Ravel also has something it calls "page by page citation analytics," which allows you to leap to authority that interpreted the specific language that you care about in an opinion--like Headnotes on crack. And as if all the data analysis wasn't enough, Ravel has a unique visual legal research platform that allows you to make intuitive connections between distinct pieces of authority that you would never pick up on your own: 

 

And this just scratches the surface of what Ravel can do, much less what the company has planned for the future. Ravel is a prime example of the tumultuous shift that we may start seeing in legal writing and research (once a few more kinks are worked out and lawyers start widely adopting these new tools).   

ROSS is another powerhouse in the AI and analytics space. ROSS's platform can automatically track legal issues you care about and ping you with new developments. More astounding, type in a legal question in prose--ROSS will spit out a legal memo that is astoundingly well done. 

ROSS also developed EVA--a brief analyzer. EVA scans your document and not only checks all of the authority to make sure it's good law, but it then does its own legal research to find better cases to support your positions.  Casetext has a similar AI, CARA, which can analyze various sorts of legal documents (from complaints to briefs) and carry out top-notch legal research on its own. 

Another company that I'm excited by is Ailira. Ailira is developing a free AI that answers folks' legal questions. As someone who spends a lot of his time working to educate the public about navigating the system, tools like this can't come fast enough. 

This is only a small sampling of the exciting new AI and analytics tools out there for legal writers. But I want touch on a couple other sorts of technologies you might not have thought about, too.  

First, consider replacing your paper legal pad with a digital one. There are a few sleek digital writing pads on the market that will nearly trick you into thinking you're writing on real paper. The upsides? No running out of ink or paper. No more crinkled-up pages on your desk. And no more searching in drawers or the trash can for your old notes. Not to mention that you now have thousands of documents at your fingertips to peruse and markup just like if they were printed out. 

To give you an idea about what it might be like to give up that ugly yellow pad, I'll share my experience with Sony's Digital Paper.

Sony sent me one of these to try, and I put it through the ringer. For weeks, I took it everywhere: court, meetings, brainstorming in my office, class. I outlined briefs, scribbled on documents, and graded law student papers. 

In the end? I can't see going back. Sony's version is on the big side, but not much bulkier than a full-size legal pad. The text on the screen looks (and to some extent feels) like the real thing. Writing is as natural as paper. It took a bit of adjusting for the first couple days, but after that, I generally forgot it was a screen.

Being able to pull up documents and write on them is just incredibly convenient. And the ease of switching between pages or documents is worth converting to the digital world, trust me. Riffling through legal pads full of notes from different cases or projects is horrible. Not only can you lose track of what's what, but you can lose precious notes altogether. 

In terms of which digital pad to try, after trying Sony's and the other main competitor, I bought Sony's for myself, if that tells you anything. But both are great. 

At bottom, if you haven't tried one of these digital writing pads in your day-to-day, it's worth your time. And don't think that you can just use your iPad or Surface--it just isn't the same. There is a reason you brainstorm your legal-writing ideas on a pad (even when your computer is inches away). You need that full-page screen so that you don't have to zoom or move things around. You need the feel and smoothness of writing on what at least feels like real paper. At least, that has been my experience. 

Next, consider learning how to use Microsoft Flow (or, if you don't use Word, If This Then That). 

Flow and IFTTT are tools for setting up multi-step tasks (called recipes or templates) that run automatically. For example, you can create a recipe like: IF it's raining outside, THEN text me a reminder at 8:00 a.m. to grab my umbrella. It's like having a little robot on your computer.

To fully explore all that these tools can do for you as a legal writer, we need a whole post. But here are a couple ideas to get you started. Really, the only limit is your imagination:

• Do Not Disturb: Writing! Create a button on your desktop that will automatically cease all notifications and message back anyone who texts or emails that you are busy for a set amount of time. You can even include settings so that certain people can break through your do not disturb (like your boss). This way you can hunker down for your writing time without distractions--and not worry that you might be missing something important. 
• Editing Reminders. Create a task that will automatically send you reminders to edit at regular intervals before your legal writing project is due. 
• Draft flow. Setup a task so that whenever someone sends you an email with the word "draft" in it, the attachment is automatically downloaded into a draft folder on your desktop for you to start editing.
• Grading Help. I have a recipe setup so that when a student emails me an assignment, it is automatically downloaded and sent to a folder for me to grade. After I markup the assignment, another recipe automatically sends it back to the student with a pre-filled email reminding the student to read my comments! 
• Appellate Advocacy Blog updates. Setup a task to shoot you an email every time there is a new AAB post! 

I could list dozens of legal-writing-related recipes like this. But I think the best way to get started is to try making one for yourself. Then once you get the hang of it, spend some time brainstorming about the repetitive tasks you do each day--like checking email, downloading documents, or setting reminders. A lot of this can be made easier with an automated recipe (or some other tool). 

Finally, consider downloading a program for your desktop that will help you organize all your documents and papers. Law firms often have document management systems, but I'm talking about something to replace the folders you have within Windows or Mac itself. 

For Windows users, the best I've found is XYplorer. This will replace the normal file "explorer" that you're used to. Why switch? How about tabbed browsing? That's right: tabbed folders, just like your favorite web browser. 

XYplorer also has an advanced search for you to find those old drafts quicker and easier, a better ability to preview documents, an interface that you can customize for your preferences, and even options to automate tasks. This program has helped me become so much more organized with my legal writing. It's much easier to keep track of documents--both those that I'm working on now and past projects. 

That's probably more technology that anyone can take in one sitting. But if nothing else, I hope you consider making technology a core part of your legal writing process. Set aside some time every now and then to try out a couple of the newest tools. You will be happy you did. 

Joe Regalia teaches at Loyola University School of Law, Chicago and practices at the firm of Sidley Austin LLP. The views he expresses here are solely his own and not intended to be legal advice. Check out his other articles here. 

Appellate Advocacy Blog Weekly Roundup July 20, 2018

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 Dan a quick email atDReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).

 

Supreme Court Opinions and News:

Most of the SCOTUS news this past week has centered around commentary on President Trump's pick to replace Justice Kennedy, Brett Kavanaugh.  A variety of articles have discussed his past commentary and opinions to gauge his likely leaning on a variety of important topics that will likely come before the Court and potentially turn on his vote.

The Washington Post had an article addressing the topic that has garnered the most coverage -- abortion rights -- as well as some other topics.  The article focused on Kavanaugh's judicial heroes tending to be more conservative than Justice Kennedy was, like late Chief Justice Rehnquist and late Justice Scalia.

Bloomberg had an article addressing the subject of how Kavanaugh might lean on the question of whether the Court would protect Special Counsel Robert Mueller's investigation.  Democrats have largely argued that Kavanaugh's past commentary clearly indicates that he would "protect" President Trump from the investigation.  The article, however, suggests that the uniqueness of the current investigation makes it difficult to judge how to apply Kavanaugh's previous statements about indictments of sitting presidents.

Federal Appellate Court Opinions and News:

This week, the 11th Circuit Court of Appeals denied rehearing en banc of a decision in which a panel of the court held that Title VII does no apply to protect gay and lesbian individuals from discrimination based on their sexual preference.  Judge Rosenbaum penned a strident dissent from the denial of en banc hearing, noting that other circuits have very recently granted en banc hearing on the issue and noting that the panel's decision on the merits was based on nearly 40-year-old precedent whose continuing validity is questionable.  

This week, a vote was scheduled on one of President Trump's nominees for the 9th Circuit Court of Appeals, Ryan Bounds.  On Thursday, though, the nomination was withdrawn shortly before the scheduled vote, after Republican Senator Tim Scott indicated that he would not vote to support Bounds without gathering further information about racially charged language Bounds had used in op-eds he wrote as an undergraduate student.  Scott indicated that Senator Marco Rubio shared his concerns.  The nomination had garnered some controversy prior because the vacant seat was "unofficially" designated for judges from Oregon, and Bounds's nomination moved ahead over the objections from both of Oregon's Democratic senators.

Practice tips and pointers:

Practice tips and pointers this week come courtesy of "Practice Tuesday."  On Twitter, the weekly #PracticeTuesday thread this week was about using facts persuasively.  A wealth of great thoughts and tips are in that thread.  In addition, this week's post on the Practice Tuesday Blog was a guest post from Professor Danielle Tully of Suffolk University's Legal Practice Program titled, "What's the Story."  That post was all about effective use of storytelling.

 

 

 

Thinking Thursdays: The hero of hyphens

 

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

******************

Dr. Joan Magat, a law professor at Duke, wants you to know that hyphens matter, and they are too often underused. For years she has tried to convince the editors at Legal Communication & Rhetoric: JALWD that the phrase should be “legal-writing document” rather than “legal writing document.” And that lawyers who work with clients who have been charged with crimes are “criminal-defense attorneys,” rather than “criminal defense attorneys.” The latter isn’t distinguishable from someone trying to describe one of those specialists who themself was convicted of a crime. That lawyer would be a “criminal defense attorney.” See the problem?  Although she often finds herself on the losing side of these battles, Joan Magat isn’t wrong.

Her 2014 article, Hawing Hyphens in Compound Modifiers explains as it proves her point. Although she thanked and dedicated the article to her fellow-editor colleagues, its brevity and clarity offers an argument for all lawyers.

The base rule is easy to remember: compound adjectival-modifiers preceding a noun should be hyphenated. It easy to apply it consistently. Exception exist for phrases in italics, quotes, and proper nouns.  Yet, to Professor Magat’s woe, too often writers omit the hyphen, mimicking some of the familiar-but-unhyphenated phrases like “high school student” or “sales tax increase.” She rejects the entries in The New York Times Manual on Style and U.S. Government Printing Office’s Manual of Style, both of which advise against hyphens when the meaning is clear without them. It is up to the writer to determine what might be clear or unclear to the reader. The MLA Style Manual, in contrast, takes the opposite approach and instead requires hyphens to prevent a misreading. Only commonly unhyphenated phrases are excepted. There is much less guesswork involved.

Dr. Magat parses “pointless” from “helpful,” and shrugs off the critique that unexpected hyphens will distract readers. She pushes back, saying that hyphens are unlike scare quotes, exclamation points, or em-dashes used to excess. Rather, the hyphen smooths the way for readers because at times it can become difficult to tell what’s the noun and what’s the modifier. Think about the phrase “common law practice” for a moment. What is that? It could be one of two things. A hyphen could clear it up.

The article ends with a lovely appendix, providing advice about hyphenating compound modifiers. For that alone, the article is worth the thirty-second download time.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New SCOTUS Nominee

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

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

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

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

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

 

Appellate Advocacy Blog Weekly Roundup July 13, 2018

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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt. 

Supreme Court News: 

Here are some reactions—in support of and against—the nomination of Brett Kavanaugh. Other commentary on the nomination can be found here. 

Adam Feldman from Emerical SCOTUS (writing for SCOTUS Blog) details the effect Kavanaugh may have on the Supreme Court if appointed. 

Federal Court News:

The U.S. Court of Appeals for the Third Circuit recently reviewed a question of law, although the appellant failed to preserve the issue. The court discussed the distinction between waiver and forfeiture of an appellate issue. A discussion about the case and what it means for appellate practioners can be found here. 

Practice Pointers and Tips:

Here you’ll find a twitter exchange about underlining or italicizing case citations—clearly favoring italics. 

The Undoing Project*

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

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

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

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

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

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

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• I swiped the title of this post from Michael Lewis's outstanding book about Daniel Kahneman and Amos Tversky. Please read it.)

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

Appellate Advocacy Blog Weekly Roundup July 6, 2018

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 Dan a quick email at DReal@Creighton.edu or a message on Twitter(@Daniel_L_Real). You can also send emails to Danny Leavitt at Danny@tsalerno-law.com or a message on twitter @Danny_C_Leavitt. 

 

Supreme Court Opinions and News:

 

President Trump is scheduled to announce the Supreme Court nominee on July 9, 2018. As of this post, three are on the President's list to be selected: federal judges Brett M. Kavanaugh, Raymond Kethledge, and Amy Coney Barrett. More discussion of the list can be found here. Amy Howe of SCOTUSblog has this piece on Amy Barrett. 

 

Adam Liptak of Empirical SCOTUS wrote about the next nominee in December of last year, but his analysis bears mentioning thing week in light of Kennedy's retirement.  

 

Other Supreme Court news: A webinar about South Dakota v. Wayfair will be held on July 12. Information about the webinar may be found here. And Justice Ginsburg was presented with the Genesis Prize, a lifetime achievement award, in Tel Aviv, Israel. 

 

 

Practice Pointers and Tips:

 

Todd Smith at Texas Appellate Law has a post on the "Appellate Road Warrior: Preparing for Mobile Lawyering."

 

 

Thinking Thursdays: Consider your reader's working-memory limits

Ruth Anne Robbins, Distinguished Clinical Professor, Rutgers Law School

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Professor Andrew Carter has used a juggling metaphor to caution his students about exceeding a reader’s working-memory limitations. A sentence and paragraph need to stay within the boundaries of what a reader can competently hold in her working memory if the writer wants that reader to thoroughly comprehend and maintain the writer’s ideas. His article on the topic provides lawyers with useful information why our writing needs revisions for clarity and, yes, brevity.

Working memory is more than pass-through storage for new information. It is also where we interpret that information and use it to complete tasks. A simple arithmetic problem can be solved in our heads thanks to working memory, because it is there that we are both storing information (the numbers) and processing that information (performing the arithmetic function). At some point, Professor Carter points out, arithmetic becomes too difficult if there are too many numbers to store and manipulate. While we might be able to add numbers in the 100’s, we may need to turn to writing instruments to solve addition or subtraction problems that involve numbers in the thousands or ten-thousands.

Working memory has three different components to it: the first part stores the new information and the second part rehearses it on a loop to avoid forgetting. Third, the central executive component coordinates the information and controls the processing.  

Written text likewise engages working memory. But, a reader can process only a limited number of concepts in a single sentence or paragraph before overwhelming the limited capacity of working memory’s ability to store, rehearse, and process information. In the central executive aspect, the reader completes two tasks: discerning the text’s meaning and putting the text into context by mediating interactions with information housed in long-term memory. Thus, says Professor Carter, legal writers need to be cautious about how much information they ask the reader to juggle.

Professor Carter thus offers two sage pieces of advice. First, promote automatic processing. That means keeping the information simplified and free from disruptions. Long sentences with extraneous information, ornate syntax or obscure phrases all inhibit the automatic processing of information. So too will stumbling blocks in the way of grammatical, word-choice, or punctuation errors. Second, manage the cognitive load visually by chunking sentences and paragraphs so the interactivity of ideas is obvious rather than difficult to sus out. Causal ideas (if/then) in sentences and paragraphs should be clear to the reader via small-group chunks that are more automatically processed because they contain recognizable flow.

Naturally, legal readers carry a duty to read and digest the legal writing of an attorney. But, it bears repeating that a piece of writing’s efficacy will turn in part on its readability. Sometimes, keeping it simple is the strategic choice.