Appellate Advocacy Blog

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

Sunday, November 29, 2020

Covid-19 and Religious Liberty

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.[1]

The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices.[2] Second, the government may not enact laws that impose a substantial burden on religious practices.[3] Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply.[4] Fourth, the government may not coerce individuals into acting contrary to their religious beliefs.[5] Fifth, the government may not target or discriminate against religion generally or specific religious denominations.[6]

In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:

Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.

Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.

Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.[7]

In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.[8]

In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause.[9] To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.[10]

Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people.[11] Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.”[12] Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.”[13] This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:

[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?[14]

Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:

People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.[15]

Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”[16]

Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot.[17]  For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.[18]  

Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses.[19] In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures.[20] Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,” [21] Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”[22]

Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.

1.    Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends

Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:

What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.[23]

In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:

In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.[24]

In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”[25]

Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:

To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.[26]

The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.

2.    Chief Justice Roberts is arguably prioritizing politics over the rule of law

Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.

Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”[27]

Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.

Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.

3.    Ideology continues to influence the justices’ decisions

It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.

Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.

These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.

 

[1] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[2] See Reynolds v. United States, 98 U.S. 145 (1878)

[3] See Wisconsin v. Yoder, 406 U.S. 205 (1972).

[4] See United States v. Ballard, 322 U.S. 78 (1044).

[5]  See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).

[6] See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).

[7] See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday

[8] 592 U.S.              (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).

[9] See id.

[10] See id.

[11] See id.

[12] Id.

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

[14] Id.

[15] Id.

[16] Id.

[17] See id.

[18] See id. (Justice Breyer also dissented on similar grounds).

[19] See id. (Sotomayor, J., dissenting).

[20] See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S.                 , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S.      , available at: 19a1070_08l1.pdf (supremecourt.gov)

[21] Id. (Sotomayor, J., dissenting).

[22] Id.

[23] Id. (Gorsuch, J. concurring).

[24] Id.

[25] Id.

[26] Id. (Roberts, J., concurring).

[27] Id. (Gorsuch, J., concurring).

November 29, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Friday, November 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, November 27, 2020

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Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter (@Daniel_L_Real) or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

Supreme Court Opinions and News:

Skadden, Arps, Slate, Meagher & Flom announced that it is starting a U.S. Supreme Court and appellate litigation group. Veteran appellate advocate Shay Dvoretzky is going to begin and lead the group, leaving Jones Day to undertake the venture.  More info from The National Law Journal.

Aaron Tang had an op-ed in the LA Times this week discussing his view that the early signals from the currently constituted Supreme Court suggest a "surprisingly centrist" approach. He reviews several recent decisions and arguments and makes the case that the Justices are leaning toward a "least harm" approach to resolving cases, tending to favor ruling in ways that put the burden of the ruling on "the side that can most easily minimize its harm." See the op-ed in the LA Times.

On the other hand, Steven V. Mazle had an opinion piece in the Washington Post this week discussing his view that the arrival of Justice Amy Coney Barrett marks a sea change toward more far conservative decision making that will "accelerate a trend toward deference to religious institutions." See the opinion piece in the Washington Post.

The Court announced this week that it will hear arguments in January via phone, livestreaming them, as it has during each sitting since May.  More from Bloomberg.

The Court issued a ruling this week in which it rejected pandemic limits on religious services in New York.  The Court issued a 5-4 decision -- unsigned -- ruling that restrictions on the size of gatherings for religious services in New York likely violated the First Amendment, departing from recent rulings involving restrictions in Nevada and California, where the Court had opted to defer to state health officials. More from CNN.

Appellate Jobs:

The Texas Fifth District Court of Appeals has posted an opening for two staff attorney positions.  See more from the Texas Courts website.

November 27, 2020 | Permalink | Comments (1)

Tuesday, November 24, 2020

The Deceptive Power of Nostalgia

As autumn turns to winter, we all reflexively long for the warmer days of summer. We might also wish for a return to the “normalcy” of pre-COVID-19 holiday gatherings with dear family and friends, or for a more “normal” political climate, or for a more “normal” era of employment and financial security prior to the digital age. But in longing for those normal times, we often fail to acknowledge the negative feelings that came with them. We ignore the insufferable heat waves of summer, or the bickering relatives at the dinner table, as we imagine a return to a better time that, in reality, never existed.

The term “nostalgia” is derived from the Greek work “nostos,” or homecoming, and “algos,” or ache.[1] The concept appears across cultures under various guises, but with the common feature that one can long so deeply for a past moment in time as to experience pain at the mere thought of that period. Nostalgia can be classified as personal—where the subject pines for their own past experiences—or historical, where the subject pines for a distant, bygone era that they did not personally experienced.[2] In either form, Nostalgia often involves a degree of self-deception. When a subject feels nostaligic, they idealize the time or place they imagine, focusing on the peaks of that personal or historic period while ignoring the valleys.[3] Nostalgia, though sometimes useful, thus has a dangerously deceptive component; “If overindulged, nostalgia can give rise to a utopia that never existed and never can exist, but that is pursued at all costs, sapping all life and joy and potential from the present.”[4]

Today’s political debates are steeped in such deceptive nostalgic rhetoric. Campaign promises to “Make America Great Again” explicitly appeal to nostalgia for a prior period where crime was lower, employment steadier, and futures more secure. But such appeals gloss over the challenges of those bygone eras, inviting voters to reminisce about glory days that never existed. Those nostalgic appeals disregard the plight of minority populations systematically disadvantaged in decades past; downplay the dangers and challenges of employment in a less-regulated, manufacturing-based economy; and ignore the innumerable ways that technological advances have improved daily life and at least arguably been a boon to society, even as they have imposed painful employment losses and economic retrenchment. Nostalgia is also at the root of campaigns that seek a return to some form of political normalcy, where opposing parties and opposing ideals coexist peacefully and compromise is plentiful. Such compromise was never truly at the root of our political discourse, even in the founding era. Though America’s political parties were less diametrically opposed in previous years, the cold math of the electoral college or Senate majority always made politics a zero-sum game where victories for one party meant losses for others. Even if the political rhetoric can be less heated, there is no returning to a non-existent “normal” era where politics were not cut-throat and compromise was easy to find.

Modern debates over constitutional interpretive philosophy similarly evoke flawed nostalgic thinking, with nostalgic flaws imbedded in many theories. Originalism is partially defined by what Professor Robert W. Gordon  calls “nostalgic traditionalism,” a sense that today’s jurisprudence is out of control and a return to earlier times, with “sturdier and sweeter models of social life than the decadent ways into which we have fallen,” is much needed.[5] Whether arguing for interpretations consistent with the original intent or original meaning of constitutional text, originalists place great stock in the wisdom of the text’s authors, which was captured at moments in time characterized by widespread injustices and inequalities that significantly weaken the moral attractiveness of that interpretive method.[6] Such theories also suggest that historical analysis yields concrete, rule-like results; in fact, history is filled with meandering narratives, unclear meanings, and unexpected twists and turns.[7]

Living constitutionalist theories are sometimes guilty of similar nostalgic thinking. Again, selective historical memory is the culprit. Living constitutionalism can be fancifully optimistic about judicial eras that expanded the protections for civil liberties, without rightful deference to the role of legislative redress for perceived social injustices, or the social upheaval caused by drastic changes issued through judicial fiat. 

Nostalgia can be heartwarming. Deployed carefully, nostalgia can highlight our missteps as we strive to ascend to a better future. In both the political and judicial realms, though, we should all carefully consider its role in our rhetoric. Nostalgia that is premised upon unduly rosy and inaccurate conceptions of the past is a dangerous, powerful emotion. It oversimplifies the messy truth of history; it presents a painless, simple solution that will surely fail to resolve complex, painful problems.[8] We should all be wary of such nostalgic arguments, whether they arise in courtrooms or around the Thanksgiving dinner table.

 

[1] Neel Burton, The Meaning of Nostalgia, Psychology Today, Nov. 27, 2014, https://www.psychologytoday.com/us/blog/hide-and-seek/201411/the-meaning-nostalgia.

[2] “Longing for our own past is referred to as personal nostalgia, and preferring a distant era is termed historical nostalgia.” Krystine Bacho, Nostalgia Can Be a Useful Psychological Tool—Or a Destructive One, Inverse, June 6, 2017, https://www.inverse.com/article/32591-nostalgia-psychological-tool-helpful-harmful.

[3] Burton, The Meaning of Nostalgia.

[4] Id.

[5] Robert W. Gordon, Originalism and Nostalgic Traditionalism, in Taming the Past: Essays on Law in History and History in Law 361, 365 (2017).

[6] Id. at 372 (arguing that when the Constitution was adopted, the government “supported command over slaves, wives, indentured servants, household servants, servants in husbandry, apprentices, paupers, and children,” and claiming that “[o]riginalism as popular nostalgia necessarily hazes over such details”).

[7] Id. at 368.

[8] Id. at 379 (“[I]t’s also a useful enterprise for judges—like historians and politicians and everybody else—to check their impulses to ancestor-worship by recalling what is most alien, repellent, and unusable about them.”).

November 24, 2020 | Permalink | Comments (0)

Monday, November 23, 2020

Elections have consequences for the bench

**See correction to Illinois**

Elections certainly have significant consequences for the federal bench, as the newly elected president will fill vacancies that occur throughout the country. But, in many states, there are elections for state court positions.  So, how did the state courts fair in the 2020 election?  Thanks to ballotpedia.com for great information.

Alabama--Alabama elected two persons to the state supreme court in partisan elections. Both are Republicans, and both were already serving terms on the Court and ran unopposed.

Alaska--Retained a justice for a nonpartisan position.

Arizona--Retained three justices.

Arkansas--Barbara Womack Webb won a seat on the state supreme court. Although the race is non-partisan, she is the wife of the state GOP chair.

Colorado--Retained two justices.

Florida--Retained one justice.

Georgia--Two justices were reelected to the court in non-partisan races, although have Republican ties.

Idaho--Two justice won reelection in non-partisan races (both had been appointed by the Republican governor).

Illinois--One Democrat and one Republican won seats in a partisan election. Thank you to the reader who notified me that an earlier version of this blog that said a justice was retained was incorrect. In fact, Justice Kilbride lost his retention election, becoming the first Illinois justice to do so.

Indiana--Retained one justice.

Iowa--Retained four justices.

Kansas--Retained one justice.

Kentucky--Elected one justice in a non-partisan election. He defeated a Democrat state representative who was running for the position.

Louisiana--Two seats were up in partisan elections. One Republican won, and for the second seat there will be a run-off between two Democrats.

Maryland--Retained three justices.

Michigan--In a 7 way race, two women won seats on the Michigan Supreme Court.  One was an incumbent and, although the race is non-partisan, both are Democrats.

Minnesota--One incumbent was reelected in a non-partisan race. He has ties to the Democrat-Farmer-Labor party.

Mississippi--Four incumbents won reelection in non-partisan races.

Missouri--One incumbent was retained.

Montana--One justice won reelection in a non-partisan race.

Nebraska--Two justices were retained.

Nevada--One justice won reelection in a non-partisan race.

New Mexico--Two Democrats won reelection to their seats in partisan races.

North Carolina--Like much of the rest of the state, some of the partisan judicial races in North Carolina are nail bitters.  Republican Paul Newby is ahead of Democrat Cheri Beasley by about 400 votes for the Chief Justice position. There will be a recount. Republicans lead in the other two races.  One was an open seat (the seat of Newby who is challenging incumbent Beasley) and won involved an incumbent Democrat losing.

North Dakota--One incumbent won in an uncontested, non-partisan election.

Ohio--In what Ballotpedia calls a non-partisan election, one Republican incumbent won her election while another lost.

Oklahoma--Five justices were retained.

Oregon--Three justices were reelected in non-partisan elections (only one was opposed).

South Dakota--One justice was retained.

Texas--Seven Republican incumbents won reelection in partisan races.

Utah--One justice was retained.

Washington--Four justices were reelected in non-partisan elections (only two ran opposed).

West Virginia--Two incumbents won reelection in non-partisan elections, while another person won a seat vacated by a retiring justice.

Wisconsin--Earlier this year, Justice Daniel Kelly lost to now-Justice Jill Karofsky. Kelly had been part of the conservative majority on the court, while Karofsky said she would be part of the liberal wing of the court.  Theoretically, the elections are non-partisan.

Wyoming--Two justices were retained.

If you have read this far, it seems like, as usual, there were no earth-shattering changes on the state supreme courts. The biggest change will be in North Carolina, if the election results don't change in a recount.

 

 

 

 

 

 

 

 

 

 

 

 

 

November 23, 2020 | Permalink | Comments (0)

Friday, November 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, November 20, 2020

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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

  • The Supreme Court rejected a request to intervene in a case seeking to impose heightened Covid-19 precautions at a Texas prison. The Fifth Circuit stayed a trial court’s order that required increased safety steps at the prison that houses geriatric and vulnerable prisoners and where at least 25 inmates have already died from Covid-19. Oral argument in the Fifth Circuit to determine whether to uphold the trial court order is set for December 3.  See the order and dissents and reports from USA Today and Bloomberg.

  • The Supreme Court granted certiorari in a labor rights case, Cedar Point Nursery v. Hasid, that will look at labor rights in relation to property rights. Relying on  Loretto v. Teleprompter Manhattan CATV Corp., the property owners claim a California regulation that grants union organizers access to workers on private property is a taking because it is "permanent physical occupation of [the] owner's property." Michael Dorf summarizes the issues in the case here

  • A report available this week looks at the Supreme Court’s amicus docket and reviews the last decade’s findings. (Subscription required)

Federal Appellate Court Opinions and News

  • The various attempts to challenge the 2020 presidential election dominate court news still this week. For those interested, a few sources have compiled a description of where things stand: The Guardian, The Washington Post, AP News, and The BBC.  

  • The Eleventh Circuit found unconstitutional two Florida laws that banned conversion therapy for children, finding the laws violated the therapists’ right to free speech. The ruling opines that the First Amendment “does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.” The dissent recognized the compelling interest in protecting children from a “harmful therapeutic practice.” See order and report from Reuters.

  • As Covid-19 cases surge across the country, courts are shutting their doors again and are cancelling juries.  See report from Bloomberg.

November 20, 2020 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, November 19, 2020

A delightful diversion

I will admit, I haven't been the most diligent blogger recently. I have been balancing several deadlines, a sick toddler, and a baby.  But, I wanted to share this delightful video out of the Fifth Circuit.  Kudos to the judges--you have amazing voices!  And thanks to the Federal Bar Association for making this happen.  Enjoy!

 

November 19, 2020 | Permalink | Comments (0)

Sunday, November 15, 2020

Ranking the Current Justices on the United States Supreme Court

Any ranking system contains elements of subjectivity and arbitrariness, and this is unquestionably true when attempting to rank the current justices on the United States Supreme Court. And it should go without saying that every justice on the Court is an incredibly accomplished and well-respected jurist, and among the brightest minds in the legal profession.  

Notwithstanding, based on each justice’s jurisprudence, one can gain a general sense of their effectiveness, influence, and impact on the Court and the rule of law. The following rankings, which are admittedly subjective and unscientific, are predicated on the following factors: (1) the influence, if any, of ideology on a justice’s decision-making; (2) the quality of a justice’s written opinions and legal reasoning; (3) the extent to which a justice’s outcomes reflect a reasonable interpretation of a constitutional provision, statute, or regulation and thus preserve the rule of law; and (4) the degree to which a justice considers the pragmatic consequences of a decision, particularly as it affects the Court’s institutional legitimacy.

1.    Elena Kagan

By all accounts, Justice Kagan is a brilliant legal mind. Justice Kagan possesses outstanding writing skills and the ability to communicate effectively and persuasively with lawyers and laypersons. Additionally, Justice Kagan’s decisions eschew ideology and reflect a balanced approach to constitutional and statutory interpretation, and fidelity to the rule of law.

One of Justice Kagan’s best opinions was a dissent in Rucho v. Common Cause, where Justice Kagan passionately and persuasively argued that partisan gerrymandering was anathema to the Constitution and democracy, and squarely within the Court’s adjudicatory powers. Regarding the partisan gerrymanders in Rucho, Justice Kagan emphasized that they “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”[1]

2.    Neil Gorsuch

Justice Gorsuch has consistently demonstrated that he is a principled originalist. Originalism states that judges should interpret the Constitution’s text based on what the drafters of a particular provision understood those words to mean at the time such provision was ratified. In his opinions, Justice Gorsuch consistently places the rule of law above subjective values or personal policy predilections. Indeed, Justice Gorsuch’s opinions are very well-reasoned and grounded in a faithful interpretation of a constitutional or statutory text. Put simply, Justice Gorsuch is not guided by ideology and his jurisprudence reflects humility and respect for the democratic process.

3.    John Roberts

Chief Justice John Roberts is among the most brilliant lawyers of his generation – and for good reason. Roberts’s intellect, advocacy skills, and writing ability are second to none.  Additionally, Chief Justice Roberts is, by all accounts, a humble jurist who respects the rule of law, the separation of powers, federalism, and democratic choice. Furthermore, Chief Justice Roberts strives to achieve consensus among the justices (thus avoiding, to the extent possible, divisive 5-4 opinions) and is committed to preserving the Court’s institutional legitimacy.

Importantly, however, the desire to preserve the Court’s legitimacy and status as an apolitical branch has led, perhaps inadvertently, to decisions that invite precisely the criticisms Roberts seeks to avoid. For example, in National Federation of Independent Investors v. Sebelius, Roberts wrote for a 5-4 majority, in which the Court held that the Affordable Care Act’s individual mandate passed constitutional muster under the Taxing and Spending Clause, despite substantial evidence that the mandate was an unconstitutional penalty.[2] Roberts’s decision, which surprised many legal scholars, was seen by some as an attempt to avoid the negative political consequences that a ruling invalidating the Affordable Care Act would engender. However, Roberts’s decisions in McCutcheon v. FEC, in which the Court invalidated a limit on contributions that an individual could make to a national party over a two-year period, and in Shelby County v. Holder, where the Court invalidated Sections 4(b) and 5 of the Civil Rights Act (despite a Senate vote of 98-0 to reauthorize these sections) engendered significant criticism and the very charges of illegitimacy that Roberts ostensibly seeks to avoid.[3]

Put simply, an overarching focus on preserving the Court’s institutional legitimacy invariably involves precisely the element of subjectivity (and, to an extent, arbitrariness), that is anathema to legitimacy itself.

4.    Stephen Breyer

Justice Breyer is a thoughtful and very intelligent jurist who balances fidelity to the rule of law with a consideration of the pragmatic consequences of decisions. And Breyer’s jurisprudence does not suggest that he is guided by subjective values or ideological considerations.  Instead, Justice Breyer's decisions are almost always well-reasoned and balanced, regardless of whether one agrees with the outcome of such decisions. For example, in Whole Women’s Health v. Hellerstadt, Breyer wrote for a 5-3 majority that invalidated a requirement in Texas that abortion providers obtain hospital admitting privileges.[4}

The decision in Whole Women's Health was based on a reasonable review of the record and of precedent regarding abortion rights.

One criticism of Justice Breyer, however, is that he subscribes to a method of constitutional interpretation known as “living constitutionalism,” which states that the Constitution’s meaning evolves over time and that the meaning of a particular constitutional provision should reflect contemporary societal values. The problem with this approach is that it vests nine unelected and life-tenured judges with the ability to identify – for the entire nation – prevailing societal values and to impose those values through decisions that often disregard or manipulate the Constitution’s text.

5.    Clarence Thomas

Justice Thomas is a faithful adherent to originalism. The principle undergirding originalism is that judges do not have the right to unilaterally disregard, manipulate, or change the Constitution’s meaning based on their subjective values or policy predilections.[5] Doing so would be fundamentally anti-democratic and give judges the unfettered right to undermine the democratic process and identify unenumerated rights based on nothing more than their personal values. Justice Thomas consistently adheres to this philosophy.

However, Justice Thomas can sometimes be far too formalistic and eschew any consideration whatsoever of the pragmatic consequences of his decisions. This is not necessarily a criticism, although originalism does not – and should not – prohibit judges from basing decisions on pragmatic considerations where such decisions would be consistent with a reasonable interpretation of the Constitution’s text. For example, Justice Thomas has repeatedly advocated for reversing Roe v. Wade, where the Court held that the right to privacy under the Fourteenth Amendment protects a woman’s right to terminate a pregnancy under certain circumstances.[6] Although the decision in Roe, particularly the reasoning, was arguably one of the worst in the last fifty years, the reliance that women have placed on Roe during this time, and the political and social divisiveness that would accompany overturning Roe, counsel in favor of adhering to Roe’s central holding. Thus, Thomas’s rather rigid position on Roe, and his overly formalistic legal analysis in other cases, leaves far too little room for pragmatic considerations.

6.    Sonia Sotomayor

Justice Sotomayor is an incredibly accomplished jurist who has authored several passionate and well-reasoned dissents, particularly in the areas of abortion and affirmative action. And Justice Sotomayor’s personal story, in which her intellect and work ethic propelled her to Princeton University and Yale Law School, is truly inspiring.

However, in a number of decisions, Justice Sotomayor, whose jurisprudence reflects living constitutionalism, appears to be motivated more by ideology or policy preferences than a commitment to the rule of law. This is arguably evident in the Court’s affirmative action jurisprudence, such as in Schuette v. Coalition to Defend Affirmative Action, where Justice Sotomayor’s reasoning read more like a policy prescription than a legal opinion, and where Sotomayor ostensibly eschewed any workable legal standards for assessing the constitutionality of affirmative action policies.[7] Regardless of one’s views on affirmative action, one gets the sense that Justice Sotomayor will, without exception, uphold any affirmative action policy irrespective of the merits of that policy. That approach is antithetical to the role of and limits on judicial decision-making. 

7.    Brett Kavanaugh

Justice Kavanaugh, a graduate of Yale Law School, had an extraordinarily impressive record as an attorney and a judge on the United States Court of Appeals for the District of Columbia Circuit where, by all accounts, Kavanaugh was a fair and principled judge.

Justice Kavanaugh’s ranking is not a reflection of his jurisprudence. Rather, he has not been on the Court for a sufficient time to adequately assess his jurisprudence, judicial philosophy, and impact on the Court and the law.

8.    Samuel Alito

Justice Alito is extremely intelligent, and a well-respected and accomplished jurist.

However, one gets the sense from both oral arguments and Justice Alito’s written opinions that his decisions are motivated in substantial part by ideological considerations and policy preferences. Indeed, on November 12, 2020, Justice Alito delivered a speech to the Federalist Society in which he criticized the Court’s free exercise jurisprudence, its decision in Obergefell v. Hodges (invalidating same-sex marriage bans), and the protections afforded to free speech.[8]

Note: Amy Coney Barrett: Having been confirmed only a few weeks ago, Justice Barrett has not been on the Court for a sufficient time to justify including her in the ranking.

 

[1]  139 S. Ct. 2484 (2019) (Kagan, J., dissenting).

[2] 567 U.S. 519 (2012).

[3] 572 U.S. 185; 570 U.S. 529 (2013).

[4] 136 S. Ct. 2292 (2016).

[5] Of course, originalism, like living constitutionalism, can also be used as a tool to impose a judge’s subjective values and policy preferences. However, principled originalists eschew such an approach and predicate their decisions on ascribing the meaning that the drafters intended at the time a provision was ratified.

[6] 410 U.S. 133 (1973).

[7] 572 U.S. 291 (2012).

[8] Sydney Bauer, Justice Alito Takes Aim at Gay Marriage in ‘Politically Charged Speech,’ (Nov. 13, 2020), available at: https://www.nbcnews.com/feature/nbc-out/justice-alito-takes-aim-gay-marriage-politically-charged-speech-n1247772

November 15, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, November 13, 2020

Appellate Advocacy Blog Weekly Roundup November 13

WeeklyRoundupGraphic

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.

 

U.S. Supreme Court News and Opinions:

Last week, newly confirmed Associate Justice Amy Coney Barrett sat for her first oral arguments as a member of the Court.  The ABA Journal reported on her first arguments HERE.

As the Court has returned to action for this term, it has already started hearing arguments in some particularly big cases that are being closely watched and likely to have significant impacts. 

Federal Appellate Court Opinions and News:

This week, the First Circuit Court of Appeals ruled in an appeal challenging Harvard's affirmative action policy that the policy does not amount to impermissible discrimination.  As the AP noted, although the decision upholds considering race in admissions and offers some relief to other institutions that currently do so, it also likely sets the stage for the Supreme Court to revisit the topic.

Appellate Jobs:

A couple of employment opportunities for those seeking jobs in appellate practice:

    • The Virginia SG's Office is looking for a post-JD fellow.  Applications are due November 15.  More information HERE, courtesy of Toby Heytens on Twitter.
    • The United States Department of Justice is accepting applications for an Assistant United States Attorney for the Western District of Michigan.  More information HERE.

November 13, 2020 | Permalink | Comments (0)

Tuesday, November 10, 2020

What We Can Learn from a Short History of Election Disputes.

1876 nastWe tend to think that the most recent election is uniquely important, and any irregularity is quickly magnified. A short history of just a few of the many contested U.S. Presidential elections shows that elections are often messy, and that legal intervention of some sort (either by a change in the law or by court ruling) has frequently been the remedy. That review may also give us a glimpse of what to expect this year.

The first major election dispute was in 1800, when the Jefferson ran against Adams. Jefferson's party, the Democratic Republicans, handily won, and the party electors dutifully wrote down the names of both the presidential candidate (Jefferson) and the vice-presidential candidate (Burr). This resulted in a tie. The vote thus went to the House, which was controlled by the Federalists, and in which Burr refused to concede his position to Jefferson, thinking that the Federalists might prefer him and he could thus win the presidency. In the end, the House chose Jefferson, and, eventually, the 12th Amendment was passed to prevent a repeat tie.

In 1836, there were four candidates for president. Jackson won the popular vote, but with no majority in electoral votes, the election once again went to the House. The House dropped the fourth candidate with the lowest votes (Clay), and Adams managed to capture most of those elector's votes, possibly because he promised Clay a cabinet position. As a result, for the first time, the person who won the popular vote did not win the presidency.

In 1876, Tilden ran against Hayes, and Tilden won the popular vote. However, when the electoral college met, Tilden came up one vote short of winning, with 20 electoral votes being disputed by their states (each party claiming the votes for themselves). For the first time, the Supreme Court had a role in deciding who won - a commission was formed with 5 senators, 5 congressmen, and 5 Supreme Court Justices. The commission was supposed to be equally split, 7-7, between the parties, with one independent being chosen by the Justices, in this case, Justice Davis. When Davis was selected to serve as a Senator, he was replaced by a Justice Bradley, who, it turned out, voted entirely with the Republicans, and the commission decided 8-7 to award Hayes all of the votes. After numerous compromises (including, allegedly, the Compromise of 1877, ending Reconstruction) and bargains between the political parties, Hayes was sworn in accord with the commission's decision.

In 2000, Al Gore won the popular election against George W. Bush by .5%. However, the electoral vote remained unknown until Florida completed its vote count on November 8, resulting in a win by George W. Bush by just over 300 votes (later rising to 900 when mail-in ballots were counted), giving him 271 electoral votes. Issues with "hanging chads" and purported fraud resulted in a call for a hand recount in some counties. That recount resulted in a 537 vote win for Bush, certified on November 26.

Gore challenged the vote. He lost his challenge in a lower state court, but won in the Florida Supreme Court, which issued an order on December 8 requiring a recount of the 70,000 votes recorded as "undervotes" by the voting machines. The next day, the U.S. Supreme Court issued an order staying the Florida Supreme Court's order, treating the application for the stay as a writ of certioari, granting the writ, and setting the case for a 1 1/2 hour oral argument on December 11.

On December 12, the Court issued a 7-2 per curiam decision ordering that the recount stop, based on equal protection grounds, given the different standards of counting that were being used in different counties. Justices Breyer and Souter recommended that a statewide recount be held prior to the December 18th meeting of electors, but because the State of Florida had stated that it intended to meet the discretionary December 12 “safe harbor” deadline set by U.S. Election Code (3 U.S.C. §5), the court ruled 5-4 to reject that remedy. In the end, there was no time left to do anything but certify the original vote.

As you can see, the 2000 election was the first time the Supreme Court directly intervened in a State's efforts to decide an election recount. The division reflected in the court's opinions showed a tensions between two goals - ensuring a proper process to determine legal votes, and making sure that every vote is counted. Scalia's initial concurrence to the stay summarized the issue nicely from his perspective: each recount was alleged to physically degrade the paper ballots, so if the process being utilized was incorrect, counting the ballots first might actually mean that counting the ballots under a proper process, later, might become impossible.

It seems likely that there will be recounts in the 2020 election. In some states, those recounts will occur statewide. In others, they may be called on a district-by-district basis.

Political compromise, the main method in determining earlier close elections, seems unlikely. Court challenges, however, are already in the works. Methodologies for recounts have been largely standardized, so any machine recount should be done fairly quickly and with fewer potential challenges (hand recounts may be a different matter). This is important, because Bush v. Gore gave great weight to the State of Florida's election code and deadlines. Unlike the Franken-Coleman senate-race recount and court challenge, which took almost nine months, presidential recount challenges are very time sensitive. Any challenges to the recounts because of election fraud are thus also likely going to have to be decided within this narrow timeframe.

Already, though, Trump's legal teams are making equal-protection arguments, showing that they are also closely reading the Bush v. Gore playbook. There are claims that mail-in and in-person ballots are treated differently. There are suggestions that count observations are also done differently in different districts. However, to date, none of these allegations show as concrete a difference as the way those "hanging chads" or "dimpled chads" were being counted in each county in Florida. And the ticking clock for election deadlines means that any challenge will need to be equally clear if it has any hopes of resolution in time.

(image credit - Thomas Nast, Harper's Weekly, February 17, 1877, commenting on the compromise of 1877 that eventually resolved the 1876 election, Library of Congress Prints and Photographs Division, public domain)

November 10, 2020 in Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, November 1, 2020

Reforming the Judiciary

In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance.  These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.

In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:

If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.[1]

But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.

1.    Require a 6-3 supermajority to affirm or reverse lower court decisions

Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.

Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.

2.    Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.

In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause.[2] Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto.[3] Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?

Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut).[4] Instead, it should defer to the coordinate branches – and to democratic choice.

3.    Allow the Supreme Court to issue advisory opinions

The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.

Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights.  And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.

***

Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.

[1] Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at:  https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.

[2] 567 U.S. 519 (2012).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

 

November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)