Tuesday, June 30, 2020
Recently, the Seventh Circuit addressed an article that stirred up quite a bit of debate earlier this year. In March 2020, Harvard Law and Policy Review published an article by U.S. District Judge Lynn Adelman sharply criticizing the United States Supreme Court for, in his opinion, advancing the interests of the Republican party in siding with business interests over rights of the middle-class, poor, and minorities. To illustrate his position, Adelman relied on voting rights and campaign finance decisions, largely drawing from the dissents in those cases.
The article began by claiming that it is now "a truism that Chief Justice John Roberts' statement to the Senate Judiciary Committee that a Supreme Court justice's role is the passive one of a neutral baseball 'umpire who [merely] calls the balls and strikes,' was a masterpiece of disingenuousness." He then compared Republican leaders to "those fervent defenders of slavery who pushed the South into Civil War."
At first, Adelman was unrepentant. "It needed to be said," was his response to the initial criticism. However, as the Seventh Circuit convened a panel to address disciplinary complains over the article, Adelman met with them and disavowed his intention to criticize the integrity of the Court, reaffirmed his commitment to impartial administration of justice, and agreed to make a public statement to that effect. This statement, plus a public admonishment, were sufficient to address the violations according to the Judicial Council's resolution.
This is not the first time a judge has been called to task for expressing opinions outside of court. Making such statements involves a tricky balance. On the one hand, judges have an intimate knowledge of the law, and their writings and opinions on the evolution and development of the law can be invaluable. On the other hand, there are a number of issues raised by the Code of Judicial Conduct for United States Judges and similar state rules that make expressing those opinions perilous.
1. Judges Should not Act (or Write) in a Manner Inconsistent With their Judicial Obligations.
The Judicial Council that reviewed Judge Adleman's work found that most of his analysis was a substantive critique of past United States Supreme Court decisions, and thus was not objectionable. This type of analysis, according to the Council, is to be encouraged, since judges have important insights into the law. However, the Council found that the opening sentences regarding Chief Justice Robert's "disingenuousness," as well as the characterizations of the Republic Party, ran afoul of Canon 4. Sort of.
Canon 4 encourages judges to engage in extrajudicial activities, such as speaking, writing, lecturing, or teaching on the law. However, in doing so, Canon 4 cautions that a judge may engage in activities that "detract from the dignity of the judge’s office, interfere with the performance of the judge’s official duties, reflect adversely on the judge’s impartiality, lead to frequent disqualification, or violate the limitations set forth below."
This broad prohibition is where the Council found an ethical violation. As the Council noted, trust in the nation's federal courts is essential to their continued vitality. Thus, "[i]f a particular judge makes statements, on the bench of off, that undermine confidence in that judge's ability to approach cases impartially, such statements impair the ability of the entire judicial system to serve the public and to engender the public's confidence in judicial decisions."
As noted, the Council found that most of the Adelman article was substantive and permissible. The statements accusing Chief Justice Roberts as being "disingenuous" in his claims of impartiality, and comparing the Republican Party to slave-owning firebrands, however, while not specifically prohibited under Canon 4, where found to be improper because they "do not promote public confidence in the integrity and impartiality of the judiciary."
This language more closely mirrors Canons 1 and 2 than Canon 4. Canon 1 provides that "a judge should maintain and enforce high standards of conduct and should personally observe those standards, so that the integrity and independence of the judiciary may be preserved." Similarly, Canon 2 provides that "[a] judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Council thus seems to be reading Canon 4's restrictions on extrajudicial activity with Canon 1 and 2's broad requirements to preserve the integrity and independence of the judiciary.
Taken this way, Canon 4 has very broad implications. It is appropriate, under this reasoning, to write in substantive disagreement with a court decision. But it is not appropriate to do so in a way that undermines the integrity, impartiality, or independence of the deciding court. You can hate the sin, but not the sinner.
2. Judges Should not Engage in Politics.
Canon 5 states quite broadly that judges should not engage in politics. They cannot act as a leader in a political organization, endorse any political candidate, make speeches for a candidate or political organization, solicit funds for or contribute to any candidate or political organization, or "engage in another other political activity."
The Council considered Adelman's activities under this Canon because of his characterizations of the Republican Party. However, the Council concluded that, while his statements were in violation of his duties to uphold the confidence and impartiality of the judiciary, and could reflect adversely on his own impartiality, they were not political statements.
A broad reading of Canon 5 is probably unwise. Politics underlay appointments, and on the state level, many judges are required to run on party-line tickets. As long as they remain impartial in their decisions and stay out of politics as much as their system allows, however, Canon 5 should not be called into play. It was likely enough to note that Adelman's impartiality was called into question without characterizing it as a political endorsement.
Indeed, many schools of constitutional interpretation have been adopted by one political party over another. It would be perilous to suggest that endorsing one school of interpretation over another could be prohibited political speech, simply because that school has become associated with a given party.
3. Judges Should not Comment on Pending or Impending Proceedings
The most obvious prohibition on judges expressing opinions outside of court arises under Canon 3A(6) of the Code. That section of the code provides that "[a] judge should not make public comment on the merits of a matter pending or impending in any court." Certainly, a judge with a matter pending before their own court must be cautious in discussing the matter. But the Canon also requires caution when discussing issues pending in other courts, or that are "impending" elsewhere.
In 1999, Justice Posner published a book entitled, An Affair of State: The Investigation, Impeachment, and Trial of President Clinton. In that book, Posner expressed his belief that President Clinton had committed perjury, and could well be prosecuted for wire fraud, criminal contempt, making false statements, and aiding and abetting a crime.
This book was quite popular, but it also drew criticism under Canon 3A(6). At the time the book was published, there was an ongoing criminal investigation for charges of perjury and obstruction - the very issues addressed by Posner - as well as proceedings to revoke Clinton's law license.
U.S. scholars debated the application of the Canon and the appropriateness of Posner's comments for quite some time. To my knowledge, no grievances were ever brought before the Judicial Council on the matter.
Similarly, Lord Steyn, a member of what was then the highest court in the U.K. caused consternation when he wrote about Pepper (Inspector of Taxes) v. Hart, a 1993 decision regarding the construction of statutes. At first, Steyn (who did not sit for the decision) praised the reasoning of the case. Over time, however, Steyn, while still on the bench, wrote that the decision "is not good law," and then proceeding to lay out what he believed should be a successful attack against the case.
As some authors have noted, this analysis of a legal issue that was likely to come before the high court again essentially signaled a prejudgment or "signalling" by one of the members of that court. This was exacerbated when another member of the court endorsed his reasoning. See Susan Bartie and John Gava, Some Problems with Extrajudicial Writing, 34 Sydney Law Rev. 638.
Their are several concerns with this type of writing. Prominent justices like Posner may influence proceedings outside of their courts. And Lord Steyn's writings influenced other members of the bench, signaled arguments that would be influential, and essentially served as non-official opinions. Broad topics are probably much safer to discuss than narrower holdings of specific cases or potential cases.
4. Judges Should Exercise their First Amendment Rights.
In the end, judges should be encouraged to exercise their rights and discuss the law in a way that helps the rest of us benefit from their experience. Sometimes, that will mean criticizing the legal work of other judges. However, as the Council noted, judges who criticize decisions should do so in a way that does not interfere with public trust, and the public perception that the judges they appear before will approach their cases fairly and impartially. Hopefully, by keeping the above Canons and rules in mind, judges can help the public engage in important discussion about the law without making those discussions personal or political.
(image credit - untitled political cartoon by Clifford Berryman from the 1930s)
In Texas, a new form of advocacy to the Texas Supreme Court is taking shape around the bar exam. COVID-19 cases are climbing in the state,
and while this has been an issue faced in many states throughout the pandemic, the timing in Texas feels dire because of the rapid increase and short time until the bar.
Earlier in the pandemic, Texas had changed from a two and a half day bar to two days, and split the administration from only July to July and September to allow for more social distancing. At the time those changes were made, infection rates in Texas were relatively low. With less than a month until the planned July administration though, recent graduates, law school deans, professors, and other supporters are putting pressure on the Texas Supreme Court and the Board of Legal Examiners to come up with another plan that better protects the health of the examinees.
Tomorrow, the Board of Legal Examiners in Texas is holding an open, online meeting to discuss the administration of the bar exam.
The deans of all ten Texas law schools have signed this letter proposing three potential solutions: remote administration, apprenticeship, and diploma privilege. Recent graduates have made a big push for diploma privilege. With mere weeks until the July administration, any major change in the actual exam does not give enough time to the examinees to adjust. Additionally, many examinees do not have appropriate conditions at home to test remotely.
To hit this point home, graduates have been releasing personal impact statements via Twitter to illustrate their hardship Also, the bar exam in Houston will be administered at NRG stadium, the same location where surge capacity for COVID-19 is planned. Recent graduates have effectively used imagery of the tents and of officials in hazmat suits to illustrate the absurdity of taking the bar exam there in a month.
Certainly, the Texas Supreme Court and the Board of Legal Examiners have a difficult decision to make, but protecting the public from unprepared attorneys should not come at the expense of exposing examinees to COVID-19 and risking further spread throughout the public. It’s also incumbent on these Texas leaders to treat these examinees with humanity and compassion. I’m proud of our recent graduates for advocating for themselves and their peers.
Saturday, June 27, 2020
Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online: Preparation and Professionalism
In March, we had only hours to transition from in-person teaching and law practice to remote options. As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms. Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work. I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online. (If you could not attend, you can view asynchronous postings here: https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.) Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend.
Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.” The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward. As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.” Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020). Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances. In other words, be prepared and yes, wear pants.
Part of our preparation for oral argument today should include a test run of our technology. Whenever possible, appellate practitioners should do moot courts before oral arguments. Now, we should make our moot courts a test of both online systems and legal arguments. Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms. Id. They expect us to be familiar with the platforms as well. In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation.
We should also be as professional as possible in every detail of our online appearances. Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance. The ABA panel stressed smaller points as well. For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking. Id. at 2. Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level. The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument. Id. Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking. Id. Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.
We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves. For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.” Id. at 3. Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.
June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Friday, June 26, 2020
I am thrilled to announce that the Journal of Appellate Practice and Process will be transferring to the University of Arizona James E. Rogers College of Law. I posted several months ago about how the Journal was looking for a new home, and I am pleased to announce that we are able to provide that new home. While I will have more information to share in the future about the Journal, including the new Journal website, I wanted to at least share the following press release. Please feel free to reach out to me with questions about the Journal.
After 20 years at the University of Arkansas at Little Rock’s William H. Bowen School of Law, The Journal of Appellate Practice and Process is moving to the James E. Rogers College of Law at the University of Arizona, which already publishes the Arizona Law Review, the Arizona Journal of International and Comparative Law, the Arizona Journal of Environmental Law and Policy, and the Arizona Law Journal of Emerging Technologies.
“The University of Arizona is well positioned to shepherd The Journal through the next stage of its development,” said Nancy Bellhouse May, who joined The Journal in 2001 and has been its editor since 2004. “With the resources of a great public research university behind it, University of Arizona Law has the reach and the reputation to keep The Journal at the forefront of the national discussion about appellate courts and appellate law.” Those strengths, she added, “will enable The Journal to continue as an important forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”
Tessa Dysart, assistant director of legal writing and clinical professor of law at University of Arizona Law, is the publication’s new editor in chief, and members of the college’s legal writing faculty will be involved as editors.
“We are excited to welcome The Journal to University of Arizona Law and grateful to the Bowen School of Law for all the work they have invested in it,” said Dysart. “The Journal will complement our existing strengths in legal writing and advocacy and our faculty's ongoing contributions to the national conversation on appellate practice issues. And we look forward to leveraging University of Arizona Law's global focus and connections to expand The Journal's reach and coverage of appellate practice.”
Submissions and questions regarding The Journal may be sent to email@example.com(link sends e-mail).
Since its founding at the Bowen School of Law in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer of the United States Supreme Court have written for The Journal, as have prominent federal and state appellate judges including Judge Frank M. Coffin of the United States Court of Appeals for the First Circuit, Judge Robert A. Katzmann of the Second Circuit, Judge Ruggero J. Aldisert of the Third Circuit, Judge Richard Posner of the Seventh Circuit, Judge Richard S. Arnold of the Eighth Circuit, Chief Justice Randall T. Shepard of Indiana, Chief Justice Vincent L. McKusick of Maine, Chief Justice Charles B. Blackmar of Missouri, and Chief Judge Judith S. Kaye of New York. The Journal has also published the work of leading legal scholars from law schools across the country that include the University of California at Berkeley, the University of Chicago, Columbia, Cornell, Duke, Georgetown, Harvard, the University of Michigan, New York University, Northwestern, the University of Pennsylvania, Stanford, the University of Virginia, and Yale.
Courts often refer to The Journal in their opinions, citing it over 100 times in 2019 alone. Bowen Professor J. Thomas Sullivan, who founded The Journal and was its first editor, noted that “The Journal attracted important scholarship right from the start.” He mentioned as an example an article by Judge Arnold published more than 15 years ago that is still being cited today. Adding that articles like Judge Arnold’s “played a major role in establishing The Journal’s position as a scholarly, yet pragmatic, publication,” he also credited the appellate bar. “Appellate lawyers were happy to see a law journal that addressed their practical concerns while furthering scholarly discussion about the future of the appellate process,” he said. “The Journal has been pleased to play a part in supporting that dialogue as appellate law and procedure have developed in new ways.”
Continuing The Journal’s practice of addressing a wide variety of appellate concerns, issue 2 of its volume 20, the last to be published by the Bowen School of Law, includes a rhetorical analysis of Justice Scalia’s majority opinions, a roadmap for appellate judges’ use of social media, a report on appellate judges’ preferences about appellate lawyers’ approach to oral argument, a history of the abstract requirement for appellate briefs, and a review of Justice John Paul Stevens’s autobiography. It will reach subscribers later this summer. Issue 1 of The Journal’s volume 21, the first to be published by University of Arizona Law, will include a comprehensive assessment of the reasonableness standard, a scholarly review of the United States Supreme Court’s grant-vacate-and-remand practice, advice on structuring appellate briefs, a plea for shorter appellate opinions, and a look at the ways in which the COVID-19 pandemic has affected appellate courts and appellate practice. That issue and those to follow will be published in electronic form on a schedule to be set by University of Arizona Law.
The University of Arkansas at Little Rock, established in 1927, is a metropolitan research university that provides accessibility to a quality education through flexible learning and unparalleled internship opportunities. The University of Arizona, established in 1885 and recognized for its student-centric environment, is one of the nation's top public universities.
Tuesday, June 23, 2020
Can Textualism (and Originalism) Expand Judicial Discretion? An Analysis of Justice Gorsuch’s Opinoin in Bostock v. Clayton County
The Supreme Court’s decision in Bostock v. Clayton County last week confirmed that, under Title VII of the 1964 Civil Rights Act, unlawful employment discrimination based upon sex includes discrimination based upon homosexuality or transgender status. The decision is a clear landmark for the advancement of LGBTQ rights through the Supreme Court. But more subtly, it may be a landmark for “ordinary public meaning” interpretation of legal texts by the Court. And it traces back to the surprising author of the opinion, Justice Neil Gorsuch.
Justice Gorsuch’s opinion applies a familiar interpretive method to the question facing the Court. At the outset of his analysis, he promises to interpret the statute “in accord with the ordinary public meaning of its terms at the time of its enactment.” That texualist approach aims to limit judicial discretion when uncovering the meaning of a text, cabining decisions to the words on the page themselves.
To undertake his textualist interpretation, Gorsuch refers to contemporary dictionaries of the early 1960s to define “sex” and “because of” in the statute. He uses those dictionary definitions, along with a fair bit of the Court’s precedent, to assert that the statute prohibits discrimination where an individual’s sex is a but-for cause of that discrimination. “In other words,” Gorsuch writes, “a but-for test directs us to change one thing at a time and see if the outcome changes. If it does, we have found a but-for cause” of discrimination. And because “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” Title VII prohibits employment decisions based upon an individual’s homosexuality or transgender status.
While this may seem to be standard public-meaning textualism, Gorsuch offered a potentially dramatic shift in that interpretive method while rejecting the dissent’s claim that few living in 1964, let alone the statute’s drafters, would have believed that the statute prohibited discrimination because of sexual orientation or gender identity. Gorsuch admitted that ordinary public meaning interpretation “must be sensitive to the possibility a statutory term that means one thing today or in one context might have meant something else at the time of its adoption or might mean something different in another context,” which sometimes requires looking to the understandings of the text’s drafters. But for Gorsuch, the employers and dissenters fail to suggest that the statute “bears some other meaning”; instead, they “merely suggest that, because few in 1964 expected today’s result, we should not dare to admit that it follows ineluctably from the statutory text.”
This may be monumentally important change in “original public meaning” versions of textualist, and more broadly originalist, methods of interpretation. Underlying Gorusch’s interpretation is a belief that a text means what it was understood to mean at the time it was enacted. That belief, long a creed of conservative jurists, was commonly invoked to limit judicial discretion by ensuring that later interpreters of a text can only follow what the words chosen by the document’s drafters meant, according to historical practice. But Gorsuch’s interpretation expands judicial discretion by allowing later interpreters of text to hold the original drafters to the perhaps unintentionally expansive meaning of their chosen terms. It becomes a sort of progressive textualism that justifies, rather than cabins, judicial discretion to expound upon the original intentions of the text’s drafters in politically liberal directions. And if applied in constitutional cases, it may further erode originalism’s long-criticized tether to the intention of any group of founders or well-informed citizens of the founding era. The Bostock dissenters are almost certainly right about the views of those living in 1964, or of the original authors of the Civil Rights Act. But for Gorsuch’s version of original public meaning interpretation, the understanding of those authors or contemporary citizens is less important than the expansive terms the authors chose to employ, which might include new social legal concepts that grew in the public consciousness much later in time.
Whether this is taken as a welcome development depends upon one’s political preferences and interpretive predilections. And its repercussions could be limited if the Court or Justice Gorsuch are willing to bend to the drafter’s intent in other cases. But it provides an avenue for textualist or originalist interpretations that generate much more judicial discretion than those methods traditionally tolerate, which may be an important turning point on the Court for years to come.
Monday, June 22, 2020
A few weeks ago I participated in CALIcon2020--an online conference on law school in the time of pandemic. My session was entitled "Moot Court + Pandemic = New Future." You can view the session here. You can find videos of the other presentations here.
CALI has been putting on some great programming focused on online teaching, so I encourage professors to check out their resources.
Sunday, June 21, 2020
This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California – that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity. In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex. In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.
The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.
So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”
Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.
I. Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts
The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.
Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.
But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision. And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage. Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.
Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.
II. Ideology matters – for conservative and liberal justices
For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.
However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.
Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.
III. Bias matters – for both liberal and conservative justices
Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women. In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.” Additionally, African-American defendants often receive harsher sentences than white defendants. As one scholar explains:
[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.
Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.” In so doing, the potential for reaching an improper result increase substantially.
IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”
Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.” As researchers explain:
[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.
Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.
V. Intuition matters
Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.” As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.” In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.
Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.
 See 590 U.S. ___ , 2020 WL 3146686.
 See id.
 See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.
 Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.
 567 U.S. 519 (2012).
 570 U.S. 529 (2013).
 576 U.S. 644 (2015).
 See id.
 Id. at 28 (internal citation omitted).
 Id. at 29.
 Id. at 32.
 Id. at 16.
 Id. at 24.
 Id. at 27.
 Id. at 14.
 Id. at 21.
Saturday, June 20, 2020
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
- Earlier this week, the Supreme Court in a 6-3 decision ruled that the plain language of the Civil Rights Act of 1964 applies to discrimination based on both sexual orientation and gender identity. Widely seen as a landmark decision, the ruling applied textualist principles and found that the plain language unambiguously protects gay, lesbian, and transgender employees because decisions discriminating for those reasons are—at their core—decisions discriminating because of sex. The opinion recognizes that "[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex.” See the opinion and a sampling of the many reports from NPR, The New York Times, The Washington Post, and Bloomberg Law.
- On Thursday, in another much-anticipated case, the Court ruled 5-4 that the administration’s attempt to end DACA is impermissible. Justice Roberts writes, “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ [citation omitted.] We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” See the opinion and a sampling of the many reports including from The New York Times, CNN, NBC News, and NPR.
Federal Appellate Court Opinions and News
- Last week, the Fourth Circuit invoked the murder of George Floyd in its opinion reversing a lower court and refusing to apply qualified immunity to dismiss a lawsuit again police officers who shot a black American 22 times after the victim had been subdued. The opinion found that if the victim “was secured, then police officers could not constitutionally release him, back away, and shoot him. To do so violated [his] constitutional right to be free from deadly force under clearly established law." The opinion also states that, “[a]lthough we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop.” See the opinion and reports from CNN, The Washington Post, and The National Law Journal.
- Today, a federal court denied an emergency request from the Justice department block former national security adviser John Bolton's book from being published. The court held that, “while Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy.” See reports from The Hill, CNN, and NPR (find order at NPR link).
Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.
Tuesday, June 9, 2020
In 2017, Justice Thomas surprised some when he noted that current qualified immunity jurisprudence seemed to be straying from proper judicial inquiry and into the sort of policy balancing that is more appropriately left to Congress. Until that test is changed to a legal inquiry as to whether immunity existed at common law, he opined, "we will continue to substitute our own policy preferences for the mandates of Congress." He concluded with a warning that "[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence."
Zadeh v. Robinson, when it was first decided by the Fifth Circuit in 2019, was not terribly remarkable. Dr. Zadeh ran a pain clinic, and his office was searched without warrant or notice in violation of his (and his clients') Fourth Amendment rights. But the officers involved were entitled to immunity, because somewhere in the tangle of applicable statutes and rules it was not "absolutely clear" that their conduct was unlawful.
This is a fairly typical result in official immunity cases. In 2018, the U.S. Supreme Court reiterated the requirement that officers, to be liable, must violate a right in such a way that the unlawfulness of their conduct was "clearly established at the time." District of Columbia v. Wesby, --- U.S. ---, 138 S.Ct. 577, 589 (2018). For the law to be "clearly established," there must be a close congruence of the facts in the precedent and those in the case before the reviewing court. "The precedent must be clear enough that every reasonable official would interpret it to establish the particular rule the plaintiffs seek to apply." Id. at 590. The Fifth Circuit interprets this to require almost identical prior facts found to be unlawful. So government officials, like dogs, generally get one free bite in every "unique" situation.
However, on rehearing, Justice Willett wrote a dissent that was attention grabbing. In that dissent, Willett opined that:
To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly. Merely proving a constitutional deprivation doesn’t cut it; plaintiffs must cite functionally identical precedent that places the legal question "beyond debate" to "every" reasonable officer. Put differently, it’s immaterial that someone acts unconstitutionally if no prior case held such misconduct unlawful. This current "yes harm, no foul" imbalance leaves victims violated but not vindicated. Wrongs are not righted, and wrongdoers are not reproached.
Specifically, Willett noted two issues with current qualified immunity analysis. First, many courts simply hold that the violation at hand was not "clearly established," without holding that it was, in fact, a violation. This means that subsequent violators can argue that their actions are still not "clearly established" to be unlawful.
Second, Willett noted that modern violations increasingly involve modern technologies, the contours of which are rapidly changing. Thus, it may be impossible to "clearly establish" a violation of one type of technological scenario before that scenario changes.
As Willett concluded:
Doctrinal reform is arduous, often-Sisyphean work. Finding faults is easy; finding solutions, less so. But even if qualified immunity continues its forward march and avoids sweeping reconsideration, it certainly merits a refined procedural approach that more smartly—and fairly—serves its intended objectives.
Recent events have made his words seem particularly prescient, as calls for reformation of official immunity law gather. His analysis gives some insight into how the court may recalibrate, rather than dismantle, the doctrine.
The Petition for Writ of Certiorari has been pending on Zadeh since September 2019, and was recently relisted and distributed for conference. It is one of several official immunity cases before the court at the moment, but may be just the type of case that Justice Thomas is looking for to address his concerns. If you want to follow the case, you can do so here.
(image attribution: Collier's Weekly, March 9, 1912 pp. 14)
Monday, June 8, 2020
Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian. Today I am sharing an interview that I did recently with David Lat. David is the founding editor of the popular blog Above the Law. He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19. He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background. Thanks David for joining me for the interview!
Edited: Sorry about the video issues, I think that it is fixed.
June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, June 7, 2020
The death of George Floyd was tragic and appalling. The video that showed Officer Derek Chauvin’s knee on Floyd’s neck for almost nine minutes was disturbing. Sadly, many unarmed African-Americans have been fatally shot by law enforcement, and although most officers have been acquitted of criminal conduct based on these events, they have been tragic and involved the questionable, if not unnecessary, use of force.
This is not to say that the majority of law enforcement officers are bad people. Most strive to – and do – protect their communities. But the events this past week have rightfully renewed a call to address problems in the law enforcement community and issues related to inequality. Below are a few thoughts regarding how to address the broader issue of inequality and achieve a society where equal opportunity exists for all citizens.
I. Focus on Institutional Corruption, not merely Institutional, or Systemic, Racism
There can be no doubt that racism and discrimination exist throughout the United States. Indeed, the legacy of, among other things, slavery, segregation, and Jim Crow have caused incalculable social and economic harm to African-Americans that continue to this day. As such, achieving equality and eradicating discrimination in all of its forms is a moral and categorical imperative.
To do so, however, it is not sufficient to rely upon an overly general assertion that the United States is currently an institutionally or systemically racist society. Although institutional racism certainly existed for much of this country’s history, it does not exist to nearly the same degree in contemporary society. For example, federal and state laws outlaw discrimination. Public universities have prioritized diversifying their student bodies and faculty. Private employers have made laudable efforts to diversify their workforces. Affirmative action programs have increased access to education for traditionally disadvantaged groups. This is merely a representative sample of the efforts reflecting a commitment to equality of opportunity and evincing a condemnation of practices that, by design or in effect, discriminate against particular groups.
Of course, although institutional racism is no longer ubiquitous, there can be no doubt that some institutions remain racist or, at the very least, retain policies that disparately impact traditionally marginalized groups. Accordingly, the best path to achieving equality would be to identify, at the county, state, and federal level, the specific institutions that remain institutionally or systemically racist – and to develop workable policy prescriptions to remedy the infirmities in these institutions. Put differently, it does little, if any, good to recite the proposition to institutional or systemic racism exists because these terms are overly broad and thus make it difficult to develop workable and sustainable remedies for specific problems.
Additionally, scholars and policymakers place insufficient emphasis on institutional corruption. This concept, which was developed by Harvard Law School Professor Lawrence Lessig, states as follows:
Institutional corruption is manifest when there is a systemic and strategic influence which is legal, or even currently ethical, that undermines the institution’s effectiveness by diverting it from its purpose or weakening its ability to achieve its purpose, including, to the extent relevant to its purpose, weakening either the public’s trust in that institution or the institution’s inherent trustworthiness.
Simply put, institutional corruption does not involve violations of the law. Rather, it refers to the degradation of an institution’s underlying values, and how the institution’s actions, although not illegal, undermine the public trust.
The United States Department of Justice’s investigation into the tragic death of Michael Brown – and the Ferguson Police Department – is instructive. The Department cleared Officer Darren Wilson of wrongdoing but, in so doing, found that the Ferguson Police Department was institutionally corrupt. That is, although the Ferguson Police Department did not engage in illegal activity per se, its policies and practices disproportionately and unfairly impacted African-American residents, thus highlighting the need for principled reforms.
II. Focus on Crime Prevention by Addressing the Underlying Causes of Criminality
There can be no doubt that reforms to policing practices (and legal doctrines, such as qualified immunity) are necessary in some jurisdictions to ensure that police brutality ends and that the lives of African-American suspects (and all suspects) are not needlessly lost. This may include eliminating specific physical restraints, making changes to police training methods, and revisiting the qualified immunity doctrine.
But such reforms are not enough.
Legislators and policymakers must address a critical issue that has nothing to do with law enforcement – the underlying causes of criminality in the African-American community (and all communities, for that matter) – and strive to reduce criminal behavior.
Regarding this issue, the landmark report of former Senator Daniel Patrick Moynihan is also instructive, albeit controversial. In that report, Senator Moynihan found that, by the mid-1960s, nearly half of African-American families were in the middle class. In subsequent years, however, that progress stalled. Senator Moynihan posited that the decline of the nuclear family and the increase in single-parent families contributed to this problem as part of a “tangle of pathology,” which included “delinquency, joblessness, school failure, crime, and fatherlessness.” These factors, Moynihan concluded, created a “self-perpetuating cycle of deprivation, hardship, and inequality.” Decades after its publication, the Urban Institute revisited Senator Moynihan’s report and concluded that African-Americans “still suffer from the intersecting disadvantages that Moynihan called a ‘tangle of pathologies,’ with each negative factor reinforcing the others.” Specifically, the Urban Institute noted that children “born into single-mother families [approximately 72% of African-American children] are far more likely to be poor and persistently poor than children born into two-parent families,” and that “[h]igh-poverty neighborhoods suffer from high rates of crime and violence, poor schools, and weak connections to the labor market.” Consequently, these factors may be responsible, in part, for criminality and inequality of opportunity.
But the Moynihan Report’s findings do not tell the whole, or even most important part, of the story. Perhaps the most deleterious effect of the systemic discrimination that continued until the mid-twentieth Century was the disparity in the quality of education at the grade and high school levels. To make matters worse, in San Antonio School District v. Rodriguez, the United States Supreme Court held that the funding of public schools based on property tax revenue did not violate the Fourteenth Amendment. The practical effect was far-reaching and long-lasting: children from wealthy neighborhoods received a better education than children from poor neighborhoods. That, in a nutshell, made equality of opportunity illusory for poor children of all races. As the Urban Institute noted, “[y]oung people from high-poverty neighborhoods are less successful in school than their counterparts from more affluent communities: they earn lower grades, are more likely to drop out, and are less likely to go on to college.”
Make no mistake: racism is and continues to be part of the problem. Indeed, the Urban Institute noted that “race remains a factor in determining economic opportunities and outcomes,” and that “aggressive enforcement of antidiscrimination statutes as well as affirmative action policies are required to ensure equal opportunity.” Police brutality, of course, is also a problem, and the recent protests are a testament to citizens’ rightful anger, at such brutality although those citizens who engaged in violence and other criminal activity should not be considered protesters in any sense whatsoever.
But the path to equality requires policymakers and scholars to do far more than focus on law enforcement. For the promise of equality to become a reality for all citizens, researchers and scholars must develop policies that address community and family issues, and that remedy the disparities in education at the grade and high school levels.
III. Reform Federal and State Sentencing Guidelines – and Reentry Programs
At the federal and state level, sentencing guidelines often authorize the imposition of unnecessarily long and unprincipled sentences. Additionally, during incarceration, the criminal justice system often provides inadequate support and treatment for mentally ill inmates. And upon release, these individuals, many of whom are members of traditionally disadvantaged groups, have deteriorated substantially and lack the social and economic support to successfully reintegrate into society. Not surprisingly, they frequently engage in criminal conduct and return to prison, where the cycle continues.
Thus, reforming sentencing law to enhance rehabilitation-based programs for inmates – and prioritize support for inmates upon release – is critical to reducing crime.
IV. The Millennial Sequence
The path to the middle class – and away from criminality – is attainable for citizens of all backgrounds. Specifically, the American Enterprise Institute has found that, among millennials, “getting at least a high school degree, working full-time, and marrying before having any children,” facilitates upward mobility into the middle class:
[The] divergent paths toward adulthood are associated with markedly different economic fortunes among Millennials. Young adults who put marriage first are more likely to find themselves in the middle or upper third of the income distribution, compared to their peers who have not formed a family and especially compared to their peers who have children before marrying … This pattern holds true for racial and ethnic minorities, as well as young adults from lower-income families. For instance, 76% of African American and 81% of Hispanic young adults who married first are in the middle or upper third of the income distribution, as are 87% of whites.
In fact, this sequence is almost certain to reduce, if not eliminate, the likelihood that an individual will live in poverty:
97% of Millennials who follow what has been called the “success sequence”—that is, who get at least a high school degree, work, and then marry before having any children, in that order—are not poor by the time they reach their prime young adult years (ages 28-34). The “success sequence,” so named by Brookings Institution scholars Ron Haskins and Isabel Sawhill, has been described as the path into adulthood that is most likely to lead towards economic success and away from poverty.
The problem, however, is that “young adults aged 28 to 34 from lower-income families are about half as likely to have completed the success sequence, or be on track with the sequence, compared to their peers from upper-income families.”
This short article cannot capture in sufficient detail the many issues relevant to inequality. Ultimately, however, and perhaps most importantly, the solution to this problem requires citizens of all races and backgrounds to come together in a spirit of reconciliation, with a commitment to eradicating racism and discrimination, and with an openness to diverse perspectives. It does no good to maintain an almost-exclusive focus on, for example, white privilege (the extent of which cannot be quantified and differs based on intersectional factors), and implicit bias (which evidence suggests does not correlate with biased behavior). These arguments rightfully identify problems impacting inequality, but without more, they have no practical impact on improving the day-to-day lives of African-Americans. If anything, now is the time to come together and recognize that what we have in common far outweighs that which we do not, and to collectively devote our efforts to achieving equality – and equal protection of the law – for all citizens. After all, what happened to George Floyd, and many others, should never happen again. The United States Constitution guarantees equality for all citizens and whenever the effects of inequality manifest – as they did in Minneapolis – the Founders’ vision for a more perfect union vanishes.
 Institutional racism is generally defined as state-sponsored policies that discriminate against or disproportionately impact traditionally marginalized groups.
 Edmond J. Safra, Institutional Corruption, available at: https://ethics.harvard.edu/lab
 See United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (March 4, 2015), available at: https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf
 Kay S. Hymowitz, The Black Family: 40 Years of Lies, (2005), available at: https://www.city-journal.org/html/black-family-40-years-lies-12872.html
 Gregory Arcs, The Moynihan Report Revisited (June 2013), available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF
 411 U.S. 1 (1973).
 Arcs, supra note 6, available at: available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF\
 W. Bradford Wilcox, The Millennial Success Sequence: Marriage, Kids, and the ‘Success Sequence’ Among Young Adults (June 2017), available at: https://www.aei.org/research-products/working-paper/millennials-and-the-success-sequence-how-do-education-work-and-marriage-affect-poverty-and-financial-success-among-millennials/
Saturday, June 6, 2020
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
In a 5-4 decision with Justice Roberts as the swing vote, the Supreme Court rejected an emergency appeal by a California church that challenged Covid-19 related restrictions on attendance at worship services. The church argued that the state guidelines limiting attendance at places of worship to 25% of building capacity or a maximum of 100 attendees violate constitutional guarantees of religious freedom. Justice Roberts concurred in the denial and wrote that the “restrictions appear consistent with the Free Exercise Clause of the First Amendment” and that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect.” (Internal quotes and citations omitted.) See opinion and a sampling of the many reports from The New York Times, The Washington Times, The Associated Press, Reuters,
Federal Appellate Court Opinions and News
The District Court for the District of Arizona ruled that a same-sex spouse cannot be denied Social Security survivor benefits for failure to meet the marriage duration requirement without consideration of whether the marriage was prohibited by unconstitutional laws barring same-sex marriage. For a surviving spouse to receive Social Security benefits, the couple must have been married for “a period of not less than nine months.” (42 U.S.C. 416(g).). The SSA argued that the provision was neutral because it applied equally to all seeking benefits. The court rejected that claim because same sex couples have been impacted by law prohibiting their marriages, which affects their ability to meet the marriage duration requirement. The opinion recognizes that, “[b]ecause same-sex marriage is a fundamental right, and the underpinnings of the duration-of-marriage requirement has relied on the unconstitutional ban of that right, [the regulation] cannot be said to be rationally related to a legitimate interest to a surviving spouse.” See ruling and case summary and reports from Slate and NBCNews.
State Court Opinions and News
The nine justices of the Washington Supreme Court, in an extraordinary step, penned an open letter to the legal community addressing racial injustice. The letter recognizes the role of the judiciary and the legal community in the continuing injustices against black Americans. From the letter:
Recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.
The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. . . .
As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong—but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.
Monday, June 1, 2020
In the midst of a Pandemic, COVID-19’s place atop the headlines seemed secure. Then last week, we were all witnesses to George Floyd’s death at the hands of a Minneapolis police officer. There is broad anger at the injustice, the abuse of power, and the plight of another African-American killed in police custody. We are still watching protests across the country; a fuse of rage lit and now exploding.
Like many, my thoughts turned to Floyd’s family and their right to receive justice, both criminally and civilly. Criminal charges have already followed for the officer who kneeled on Floyd’s neck for over eight minutes. More charges are likely forthcoming for the other officers who stood by.
As for civil damages, Floyd’s murder brings a spotlight to the U.S. Supreme Court, which was already looking at a group of qualified immunity cases for next term. Whether Floyd’s estate can recover for a violation of his civil rights against the now-former Minneapolis police officers may depend on the outcome of the case or cases the Supreme Court decides to take. The Justices discussed more than 10 qualified immunity certiorari petitions at their conference last Thursday, just days after Floyd’s death.
Qualified immunity is a court-made doctrine that provides immunity to government actors against suit as long as they do not violate “Clearly Established” constitutional rights. This standard has been interpreted to require a prior case with a violation of rights that was nearly identical to the violation alleged. It is a difficult standard to meet, even in cases with egregious police conduct. Voices from both the left and the right have criticized Qualified Immunity and are calling for more accountability for police.
If you are interested in reading more, the New York Times ran an OpEd on Friday addressing Qualified Immunity and Floyd’s murder:
You can also read more at these links:
I suspect many readers have wondered, as have I, how the law can work more proactively to prevent deaths and abuses at the hands of police. Revisiting and refining qualified immunity is an important step. While many officers respect the rights of individuals, those who do not are currently immunized almost all of the time. We have to re-balance the incentive structure to allow accountability. Clearly, the status quo is not working.