Tuesday, September 28, 2021
Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.
A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.
Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.
Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.
Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.
Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.
Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.
September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)
Monday, September 27, 2021
Two weeks ago I blogged about Lance B. Wickman's article, Lawyers as Peacemakers, in the most recent issue of the Journal of Appellate Practice & Process. Today, I want to discuss part of Dean Erwin Chemerinsky's article--The Non-United States of America.
Dean Chemerinsky spends the first half of his article positing reasons for the deep partisan divides in our country. He identifies structural aspects of our governmental system, like the Electoral College, as partially responsible. He also looks at the role of the media, former President Trump, and the COVID-19 pandemic. According to Dean Chemerinsky, the "deep partisan divide in the United States" is "the greatest threat to democracy that [our country] has faced" and could lead to "serious talk of secession." Despite these dire words, he remains "an optimist and believe[s] that there is much more that unites the American people than divides us."
In that spirit, he offers one suggestion--"change the method of picking Justices and lower federal court judges to make it less partisan." Dean Chemerinsky points to states like Alaska that have a merit selection process for picking state court judges. Arizona has something similar. Our Judicial Nominating Commissions take applications for open judicial positions. The Commissions interview candidates and send a bi-partisan list to the governor, who selects a judge from that list. Many merit selection states have systems modeled after the state of Missouri.
According to Dean Chemerinsky, former President Jimmy Carter used merit-selection panels for judicial vacancies. Dean Chemerinsky recommends that such panels be ideologically diverse and include non-lawyers. These panels would give the president at least two names to fill vacancies, and the president would promise to select from the list. Obviously, this would be a change from how presidents have nominated judicial candidates in the past. Traditionally, presidents rely heavily on the home state senators who are of the same party as the president for names.
Such a panel is an interesting idea. Dean Chemerinsky states that the panels should send "the most qualified individuals" to the president, but that is certainly an objective standard. And Dean Chemerinsky recognizes that presidents would have to voluntarily agree to create such a commission. As he writes, "my hope is that once a courageous president creates the system, especially for high-profile Supreme Court nominations, political pressure will be great for others to follow the practice of merit selection."
I do think that the merit-selection process has worked well in some states, and it would be interesting to see something similar adopted at the federal level.
Sunday, September 26, 2021
In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”
The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.
That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.
As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.
Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.
In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.
Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.
Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses, may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.
Friday, September 24, 2021
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 announced that it will hear an abortion case in the 2021 term that asks the court to overturn Roe v. Wade. The case concerns a Mississippi abortion law that bans abortions after 15 weeks with exceptions "only in medical emergencies or for severe fetal abnormality." The law includes no exception for rape or incest. The case is set to be heard on December 1. See reports from CNN, CNBC, and NPR.
The Supreme Court will adopt a hybrid argument format when it resumes in-person argument for the October term. The format will combine the pre-pandemic “free-for-all” style with the pandemic “turn-taking” style. Under the format, after a lawyers’ opening statements and during the allotted argument time, justices will pose questions as they did before the pandemic shut down. According to SCOTUSblog, during the argument, “the justices can presumably interrupt both the arguing lawyer and each other at will.” Then, after a lawyer’s argument time, “each Justice will have the opportunity to question that attorney individually. Questioning will proceed in order of seniority.” See the Guide and reports from Bloomberg and the ABA Journal.
On September 22, the Federalist Society aired “Supreme Court Preview: What is in Store for October Term 2021.” Find the YouTube link here.
Appellate Court Opinions and News
The Fourth Circuit vacated its recent ruling that gun laws barring sales to those under 21 are unconstitutional (a ruling we covered in July 2021). The court decided that the decision was rendered moot when the plaintiff turned twenty-one. According to the court, “[a]fter the opinion issued but before the mandate, [Plaintiff] turned 21. And that made her claims moot.” “Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case.” See the order and reports from Reuters and the Associated Press.
The Fifth Circuit heard a challenge to the Mississippi voting rights act. The case seeks to overturn a Mississippi law that permanently disenfranchises people who have been convicted of certain felonies. The argument can be accessed here. See a report from Courthouse News.
Thursday, September 23, 2021
The Journal of Appellate Practice & Process is currently accepting submissions for Volume 23, Issue 1, to be published in late 2022/early 2023.
This issue will focus on appellate issues in and around Indian Country. We welcome articles on appellate practice in Tribal Courts, articles exploring Tribal sovereignty and appellate justice, articles that explore jurisdictional questions raised by recent U.S. Supreme Court decisions, and other essays or articles addressing appellate practice issues in and around Indian Country. We welcome articles by academics, judges, and practitioners.
Essays and articles should not exceed 15,000 words in length. Please submit all papers to Prof. Tessa L. Dysart (email@example.com) by June 1, 2022. Acceptances will be emailed by August 1, 2022.
The Journal of Appellate Practice and Process is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”
Since its founding in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer have written for The Journal. So influential is the Journal that courts often refer to it in their opinions, with over 100 citations in 2019 alone.
The Journal moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy. You can find out more about the Journal at www.appellatejournal.com.
Wednesday, September 22, 2021
Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.
The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.
Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.
- Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
- Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
- A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
- A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.
Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?
Thursday, September 16, 2021
For law students (and some lawyers) appellate argument can be a mystery. It's definitely not the first thing the average layperson thinks about when someone mentions "legal argument." Even when Law and Order made a half-hearted attempt to show an argument at an appellate court, it didn't get it right (for example, I've never gotten a ruling from the bench as soon as the argument was over). And the misconceptions about appellate argument sometimes lead to strange behavior even from attorneys: advocates objecting during opposing counsel's argument (yes, that really happens); appellant's attorneys requesting to reserve their entire time for rebuttal (I've seen that happen, too); and lawyers calling opposing counsel their "friend" (okay, some U.S. Supreme Court advocates do that and maybe some of you think it is fine, too).
De-mystifying appellate argument means not only understanding the basics but also understanding the nuances. Anyone who has ever argued in an appellate court or taught students how to make oral arguments knows the basics: make the argument conversational; be prepared for questions; smoothly return to your argument after answering a question. And, of course, an advocate should know the substance of an argument inside and out. But what are some of the finer points of appellate argument that often are missed both by advocates and students?
- Exude Confidence: Doing my best Yogi Berra imitation, I often tell students that being successful in an appellate argument is 95% knowing the facts and the law and 95% sounding like you know what you are talking about. In reality, knowing the facts and the law in depth should lead to more confidence. In the end, why should an appellate court agree with your argument if you don't sound like you believe in what you saying? Even if you aren't so sure yourself, you are representing a client expecting zealous representation. And the other side is going to have a zealous advocate, so you should be one as well.
- Control Your Body Language: Even before you say your first word at an appellate argument, your body is already speaking to the court. The body tells the truth. If you are confident in what you are going to say (see above), then approach the lectern with confidence and own the stage you have been given.
- Vary Delivery: An appellate argument should ebb and flow. Much like a singing performance is rarely effective at 100% volume throughout, an argument without variation will either put the court to sleep or, even worse, cause you to lose your case. Vary pitch, vary pace, vary volume. This will hold the court's attention, properly emphasize the points you want to emphasize, and downplay facts and law that are bad for your argument.
- Pause: Oral advocates often feel that any dead time in their argument, even a brief second or two, is bad. On the contrary, oral advocates probably don't pause enough. Some pauses are good for effect; others are good because they allow the advocate more time to reflect upon an answer. The mind works very quickly, so it doesn't have to be (and you don't want it to be) a long pause if you are trying to come up with an answer. I often suggest to students that they begin drinking some water, if available, when a question is being asked. Judges will not be thrown off by an advocate finishing their sip briefly as the question concludes. This buys just a little more time for formulating the perfect (or near-perfect) answer.
- Control Your Zone of Authority: In conjunction with the use of body language, advocates should control their zone of authority--the area immediately around them that they control. Look judges in the eye, don't break the zone by bending over or looking around the courtroom, keep gestures within the zone, and never point. As my students also always hear me say, don't take a pen with you to the lectern! You likely won't have the opportunity to write anything down while you are arguing. And you are more likely to cause a distraction with the pen by waving it around, pointing with it, or tapping it on the lectern.
- Start/Finish Strong: Start the argument with your theme and end with your theme. Grab the court's attention at the beginning. Then remind the court again what the case is really about when you conclude. Listeners (like readers) tend to remember and are more affected by the beginning and the end of an argument than what is in the middle.
The basics of an appellate argument are important without a doubt. But mastering the nuances will make an argument even more polished and persuasive.
Wednesday, September 15, 2021
British Philosopher Michael Oakeshott thought of the law (and other social institutions, for that matter) as a language. In language as in the law, there are heated debates about what the rules are and the proper rate at which to change them. But rather than wade into that here, I want to focus on the law as a language that lawyers learn to speak. I think that there are three main branches to this language: logic, grammar, and rhetoric.
First, logic. In many ways, law students learn the law as children learn a language or a new game—by observation and imitation. Some have an easier time of it than others. We’ve all met them; they are the ones who just “get” law school from day one. Annoying. I wondered for some time what it was that these students were getting exactly that so many do not. I’m now convinced that it’s mostly that they intuitively understand logical reasoning. But many of the best players can’t tell you how to do what they do; they just know how to do it. This is also true of native language speakers—most aren’t able to say why something is right or wrong in speech, they just have a feel for it.
While going the feel-for-it route may be fine for most day-to-day legal tasks, the best lawyers I know are more conscious about the logical rules that they are following in arguments. They can tell you the specific reason that arguments are fallacious, not just that they are wrong. The more logical rules that you can articulate and use, the more effective you will be.
Second, grammar. Here the language analogy is a bit on the nose, but it holds up well. I’ve learned a couple of languages beyond my native English, and every time I do, I understand English a bit better. Before I was forced to understand things like the subjunctive mood or declension forms, I never really learned the whys behind my speech and writing. At bottom, the law is just words. And the fine details of grammar and punctuation matter. A company can lose millions of dollars because their lawyer didn’t use the Oxford comma in a contract. The result in a case may turn on which words in a sentence a modifier applies to, or whether a drafter used a semicolon or a comma, or any other number of fine grammatical distinctions. One federal judge even recently ordered parties to diagram a statutory sentence to reach a decision.
Most lawyers couldn’t diagram a sentence without a fair bit of googling, and to be sure that’s a rare case. But fewer lawyers than should can lay out grammar and punctuation rules and why they matter. Those who can have the advantage, in statutory interpretation cases in particular.
Finally, rhetoric. Since at least ancient Greece, people have explained the rules of persuasion—the patterns of speech that make it appealing to a listener/reader. Repetition can be pleasing (“of the people, by the people, for the people”) or it can be grating (“Baby shark, do do do do do do”); it is all in the execution. Some are natural orators (Eliza Doolittle’s father comes to mind), but most have to work at it. The lawyers who do will be more persuasive, to both judges and juries.
I’m willing to bet that no reader here had a course in law school explicitly focused on logic, grammar, or rhetoric. Perhaps that’s because there just isn’t time. Or maybe it’s not practical to explain a game that is easier to learn (at first) by playing. But every lawyer should spend some time learning these rules. This is doubly true for appellate lawyers, who rely so much on these tools to convince courts—who are often full of the sort of lawyers that understand and care about the fine distinctions.
 Stanford Encyclopedia of Philosophy, Michael Oakeshott, available at https://plato.stanford.edu/entries/oakeshott/#RatiRati.
 See Bryan A. Garner, Making Peace in the Language Wars and The Ongoing Tumult in English Usage, reprinted in Garner’s Modern English Usage, xxxiii-lv (Oxford University Press 2016).
 Jeff Haden, How 1 Missing Comma Just Cost This Company $5 Million (but Did Make Its Employees $5 Million Richer), available at https://www.inc.com/jeff-haden/how-1-missing-comma-just-cost-this-company-5-million-but-did-make-its-employees-5-million-richer.html.
 See, e.g., Lockhart v. United States, 136 S. Ct. 958 (2016).
 Mike’s Smoke, Cigar & Gifts v. St. George City, 391 P.3d 1079, 1084 (2017).
 Dara Kam, Legal Battle Over Florida Protest Law Could Come Down to ‘Language and Syntax,’ available at https://www.wlrn.org/news/2021-08-25/legal-battle-over-florida-protest-law-could-come-down-to-language-and-syntax.
Monday, September 13, 2021
A few weeks ago I blogged about the latest issue of The Journal of Appellate Practice and Process, which looks at what lawyers and judges can do to help ease our country’s deep divisions along racial, ethnic, religious, political, and socio-economic lines. Today I want to focus on one article in that issue--Lawyers as Peacemakers by Lance B. Wickman.
Lance Wickman has a fascinating background. Since 1995, he has served as the General Counsel for The Church of Jesus Christ of Latter-day Saints. He has also served in LDS church leadership. Prior to becoming general counsel, he worked for the firm of Latham & Watkins in California as a litigation partner. He also served in the Vietnam war. Much of his career has been centered around conflicts, either through war, litigation, or "political and cultural conflicts." Despite this experience, his article explains his belief that "the heart of what lawyers and judges do--or should be doing--is peacemaking."
Mr. Wickman starts his article by exploring the existing divisions in our country, highlighting some disturbing statistics on the increasing lack of faith in the rule of law. He then gives a defense of the concept of "the rule of law," explaining that it needs "constant tending and defense" and that it promotes fair, neutral, and peaceful resolution of disputes.
After highlighting the importance of the rule of law, Mr. Wickman delves into the role that lawyers and judges can play in defending the rule of law and acting as peacemakers. I don't want to give away the full article, so I will just touch on two of his examples. First, he talks about how lawyers are resourceful. As he writes, "In battles over cultural or moral is-sues, lawyers can help chart approaches that seek fair-ness for all Americans, rather than winner-take-all out-comes that breed resentment and perpetual conflict." As an example, he cites the compromise in Utah over religious freedom and LGBTQ rights that led to the passage of Utah Senate Bill 296. The bill involved collaboration between Equality Utah and the LDS church and "prevented discrimination in employment and housing while preserving religious freedom."
He also writes that lawyers are "resolute." As he explains, lawyers must "defend the rule of law in the teeth of determined opposition, even when doing so seems to threaten our narrow interests." For this point he cites the example of John Adams defending the British soldiers charged with murder during the Boston Massacre. Although Adams's action caused him to lose clients, even in his later years, Adams cited his representation as "'one of the most gallant, generous, manly and disinterested actions of my whole life, and one of the best pieces of service I ever rendered my country.'"
Mr. Wickman ends his article with an excerpt from President Lincoln's first inaugural address. If any person knew how to bring people together, it was Lincoln. I recently finished A Team of Rivals by Doris Kearns Goodwin, which highlights Lincoln's effort to bring several rivals for the presidency together in his cabinet. For those interested in the role lawyers can make as peacemakers, I commend both Mr. Wickman's article and Ms. Goodwin's book.
Sunday, September 12, 2021
“Interrogate the cases.” With that interesting turn of phrase, Michael Dreeben, a veteran of the U.S. Solicitor General’s Office, told an online audience last week that appellate advocates need to do more than read and study the cases that form the basis of each sides’ arguments. The half-day session, sponsored by the Fourth Circuit, contained a number of nuggets from judges and practitioners useful to any appellate practice.
Of course, there is no single way to argue a case, and two advocates can take very different approaches yet still achieve equal success. But when experienced voices from the bench and bar dispense advice, paying attention becomes the order of the day -- even if that advice does not work for you or, in your opinion, would not work for most people.
When Dreeben advised that appellate counsel “interrogate the cases,” he explained that it was important to examine more than a case’s facial holdings and reasoning. Interrogation meant that it was important to scrutinize the foundations of the decision’s results, its take on cited precedents, and its treatment in different contexts by other courts. Every appellate lawyer knows how to rely on a straightforward application of a decision’s essential holding or how to distinguish an opinion that has problematic application to the position you are taking. However, the suggestion to “interrogate” requires an advocate to go deeper and expose the either stronger basis for the rule announced by a case, or the weaker underpinning for it, perhaps based on a skewed interpretation of existing precedential building blocks.
Another useful perspective that Dreeben advocated lawyers adopt was to compose your argument while bearing in mind what does an intelligent jurist want to know to get the answer right? His experience taught him that most judges want to find the right answer. Consider what, whether based on the factual record or the posture of the law, will provide the tools that will help the judge rule your way. While anticipating what the inquiring mind of a generic judge might need to rule in your favor, it also helps to know your court and the judges who serve on it. Doing so will guide you about a judge’s willingness to consider legislative history or other tools that you might employ.
Looking at a case from every angle is a common refrain in appellate advocacy seminars, though the advice often has little content. Underscoring what it really means, Judge Paul Niemeyer called knowing how you can lose the case is “one of the most important aspects of preparation.” It forces you to consider the weaknesses in your argument and address them – or, explain why the problem you face does not doom your case.
Another experienced appellate practitioner, Kannon Shanmugam, provided some practical tips on modern brief-writing. He explained that, today, most judges read briefs on-screen, rather than plow through paper copies. To prevent points from being lost, he uses fewer footnotes than he once did to avoid forcing the judge to scroll up and down the page. Briefs should help the court reach a result. Shanmugam said that he considered a brief that runs 12,999 words, when the limit is 13000, a “tell” that the advocate has not helped the court by limiting the brief to its most essential focus.
Judge Niemeyer echoed a similar sentiment, calling for shorter, more focused briefs. He said he finds shorter briefs more powerful than the ponderous ones that are too frequently filed. He also warned against overuse of string citations: “Don’t just list cases. Argue.”
Finally, Judge Stephanie Thacker offered one other practical point that may often be overlooked. “My favorite part of a brief,” she said, “is the summary of argument.” She urged counsel not to give it short shrift or treat it as an afterthought. Instead, it should provide the reader with a clear and concise explanation of the facts and law. It helps the judge understand the entire argument and provides a basis for narrowing the issues the judge might believe critical to the ultimate resolution of the case.
* * *
In a posting last month, I discussed arguments made in three briefs filed in short order, each of which sought the reversal of a precedents. One of those cases was Oklahoma v. Bosse, where the State of Oklahoma filed a petition for certiorari that asked the Court to reconsider its year-old decision in McGirt v. Oklahoma, because of the dire consequences the state had experienced since the decision. Less than a month after filing its petition, Oklahoma dismissed it, reserving for another day and another case its argument on why McGirt should be overturned.
 No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).
 140 S. Ct. 2452 (2020).
Thursday, September 9, 2021
Thursday's Rhaw Bar: The Objectives and Means of Brief Writing: Who Makes the Rhetorical Choices? Does it Matter?
Thursday’s Rhaw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.
This semester, I’m teaching Professional Responsibility to about 145 second-year law students. We are on the topic of how the ethics rules allocate decision-making between lawyers and clients. The allocation of decision-making is an ethical question addressed the American Bar Association’s Model Rules of Professional Conduct, which is a good approximation for the individual state ethics rules. Model Rule 1.2 (a) and Comment 5 provide that
[A] lawyer shall abide by a client’s decisions concerning the objectives of representation, and . . . shall reasonably consult with the client about the means by which [the objectives] are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. . . . Clients normally defer to the special knowledge and skill of their lawyer with respect to the means to be used to accomplish their objectives, particularly with respect to technical, legal and tactical matters.
Objectives, Means & The Appellate Brief
Applying this rule to appellate lawyers writing briefs seems straightforward. When a client decides to appeal a trial court decision, the objective is simple; reverse or somehow otherwise turn the trial court’s decision to the appellant’s favor. An appellee has the opposite objective—convince the appellate court to affirm what the trial court did. (Of course, I’m oversimplifying a bit here—there could be other objectives like, for example, filing an appeal to encourage the other side to settle. But generally, the client’s objective is to win on appeal.) Once the objective of winning on appeal has been set, appellate lawyers, after consulting with the client, decide upon the means to accomplish those objectives. In the context of the appeal, those means almost certainly include crafting winning arguments in the appellate briefs. In that case, it would seem that the lawyer’s rhetorical choices, that is, the strategies and tactics of persuasion the lawyer chooses in writing an appellate brief, are the means of accomplishing the client’s objective. If that’s the case, then the ethics rule above suggests that the client should defer to the lawyer on those choices.
So, we might conclude that content of the brief is almost always the means and not the objective of representation. In other words, it is the appellate lawyer’s task to decide on the strategies and tactics of producing persuasive arguments, of engaging in rhetoric as a productive art. (I wrote about this concept of rhetoric as productive art last month.) If rhetoric is a productive art, then one would think that all of the rhetorical choices in a brief, including what issues and arguments to raise and how to raise them are within the lawyer’s purview to decide. Maybe consultation is required under the ethical rule, but nothing more. (In fact, in states with ethics codes like Florida, the comments to the rule suggest the lawyer is to “accept responsibility” for the means, which is slightly more clear than the ABA’s Model Rules on the role of the lawyer regarding the means.)
But is it really such an easy call, to say that it is ethical for the lawyer to make decisions about the choices about what is persuasive in a a brief? Maybe, maybe not. Perhaps surprisingly, the United States Supreme Court has something to say about this question in the context of the Sixth Amendment right to effective assistance of counsel in criminal cases on appeal. Even if one is a civil appellate lawyer without the constitutional obligations of the criminal appellate lawyer, the case is nevertheless a fascinating case to know something about, because the opinion helps us ask questions and think more deeply about the rhetorical choices lawyers make when they write appellate briefs.
Raising Issues on Appeal: The Supreme Court’s View in Jones v. Barnes
In 1976, a New York state jury convicted David Barnes of robbery and assault. Michael Melinger was assigned to represent Barnes on appeal. From prison, Barnes contacted Melinger, sending him a letter identifying the issues that Barnes thought should be raised on appeal. Barnes also enclosed his own pro se brief.
Melinger responded to Barnes rejecting most of his suggested issues and inviting Barnes to consider and respond to the seven issues Melinger concluded could be viable on appeal. Barnes never responded.
In the end, Melinger’s appellate brief (and his oral argument) included three of the seven issues he originally identified and none of Barnes’s. But Melinger also filed with the appeals court Barnes’s pro se brief. Melinger lost the appeal.
In later proceedings seeking relief from his conviction, Barnes alleged that because Melinger refused to raise the issues that Barnes wanted raised on appeal, Melinger had provided ineffective assistance of counsel under the U.S. Constitution’s Sixth Amendment guarantee of a defendant’s right to counsel.
This issue eventually made its way to the United States Supreme Court, and in 1983, the Supreme Court held that Melinger did not violate the Sixth Amendment when he refused to raise the issues Barnes had wanted. Ultimately, the Court, said, an indigent defendant had no constitutional right to “compel counsel to press nonfrivolous points requested by the client, if counsel, as a matter of professional judgment, decides not to press those points.”
The appellate advocate’s “superior skill” and “professional judgment” in selecting the most persuasive issues on appeal occupied most of the Court’s reasoning in the majority opinion. Citing commentators on appellate advocacy, the court celebrated the skill of the “discriminating advocate” to “winnow out weaker arguments on appeal and focus on . . . at most a few key issues.” A good appellate advocate knows, the Court implied, which issues are most “promising” for appeal, and the lawyer should be the one to choose which of the “few major points” should be raised. The discerning appellate advocate knows that raising too many issues in a brief “dilutes the force of the stronger ones.” Ultimately the Court said, “A brief that raises every colorable issue runs the risk of burying good arguments—those that . . . ‘go for the jugular,” . . .—in a verbal mound made up of strong and weak contentions.”
In a footnote, the majority implied that not only would a lawyer act constitutionally in selecting the issues on appeal, they would act ethically as well. The footnote pointed to the ethical duty of the lawyer for the means under the recently adopted Model Rules of Professional Conduct Rule 1.2(a) and noted that the rule expects the lawyer to “take professional responsibility for the conduct of the case, after consulting with the client.”
In his concurrence, Justice Blackmun agreed with the majority that Melinger did not violate the Constitution regarding the “ideal allocation of decision-making authority between lawyer and client.” But, Blackman said, as a matter of ethics, he thought an appellate attorney should advise the client on the issues “most likely to succeed,” and, in the end, “should argue on appeal all nonfrivolous claims upon which his client insists.”
Dissenting, Justice Brennan concluded that Melinger’s apparent refusal to raise Barnes’s issues on appeal violated the Sixth Amendment. At least in the context of an indigent defendant with court-appointed counsel, the autonomy and dignity of that defendant is the dominant concern, Brennan said. Accordingly, the defeindant retained the right to make the decision about which nonfrivolous issues to raise on appeal, even if that went against the advice of counsel. Even though Brennan agreed with the majority that “good appellate advocacy demands selectivity among arguments,” and that advice “should be taken to heart by every lawyer called upon to argue and appeal,” he found that indigent defendant did not have to follow that advice. Brennan noted that the ABA’s Criminal Justice Standards (still in effect today) stated that, as an ethical matter, the decision about what “contentions” to “press” on appeal was to be decided by the client.
Brennan was further skeptical of the majority’s view of the importance of the lawyer’s rhetorical choices at the appellate stage. He thought that judges could effectively recognize meritorious arguments, even if the lawyer did not do such a great job in separating the wheat from the chaff. Brennan said: “[E]ven if [arguments are] made less elegantly or in fewer pages than the lawyer would have liked, and even if less meritorious arguments accompany it, [a judge can recognize a good argument.] If the quality of justice in this country is really dependent on nice gradations in lawyers’ rhetorical skills, we could no longer call it ‘justice.’” In only a handful of cases, “especially at the appellate level,” Brennan observed, would “truly skillful advocacy” make a difference in vindicating good claims and rejecting bad ones.
Some Thoughts About Decision-Making, Ethics, and Rhetorical Choices in Appellate Briefs
So, what then, do we have here?
Ethically, the Model Rules establish lawyers are responsible, after consultation with the client, for the means of the case and, clients, the objectives. The majority of the Supreme Court holds in Jones that it is constitutional for a lawyer to decide which issues to raise in a criminal appeal and suggests in dicta that selecting issues on appeal is, for ethics purposes, a mean for which the lawyer is responsible. Conversely, both the concurrence and dissent suggest that the decision about which issues to raise on appeal are so important for a criminal defendant that, ethically (in Blackmun’s dicta) and constitutionally and ethically (in Brennan’s opinion), the choice is an objective for the client to decide.
The implications for Jones v. Barnes are clear for the appellate lawyer representing indigent criminal defendants: constitutionally, if the lawyer wants to take over the decision-making about what to raise on appeal, the lawyer can do so. (While the Supreme Court suggests it is also ethical, that is dicta, and the ABA’s Criminal Justice Standards suggest a different result. The ethics, then, are perhaps not so clear.) For civil appellate lawyers, on the other hand, the implications of Jones are indirect but interesting. The opinion is worth contemplating because it gets us thinking about the ethics and professionalism of rhetorical choices in briefs and whether rhetorical choices in briefs have any meaning at all.
Is brief writing a mean or an objective?
On its face, one might not immediately think about the ethics of decision-making allocation when deciding how and what to write in an appellate brief. It might seem counterintuitive that the choice about whether to raise a particular issue would be anything other than a mean for accomplishing the client’s objectives. Accordingly, most lawyers, while consulting with their clients about the brief and perhaps even taking suggestions on a brief’s contents, would consider themselves to be ultimately responsible for making choices about how the brief will persuade.
But Jones might make the appellate lawyer pause and consider whether there are situations in the civil context where the issues raised on appeal are objectives rather than means. One might imagine that experienced appellate lawyers can readily share stories where they found themselves in that situation. In some contexts, perhaps, the client’s desire to have their voice be heard in a particular way or to “have their day in court” becomes a driving force behind the content of the brief, even if the lawyer doesn’t necessarily think that every issue or argument raised in the brief is legally important. Instead, those issues and arguments might be seen to have a different rhetorical importance—to create in the client feelings of meaningfulness, to feel heard, to feel seen. Maybe Brennan’s argument for client autonomy and dignity in Jones, even if only analogically and in principle, should extend to all appellate litigants.
Are legal issues created or identified?
Another question Jones raises is the nature of “issue identification” as a rhetorical (i.e., persuasive) act. That is, do lawyers create issues for argument or do they find them? In other words, if issues raised on appeal are the product of a lawyer’s rhetorical imagination—the product of the lawyer’s ability to invent argument—then the case for issues identification as a mean rather than an objective of the representation is stronger. But, if the legal issues exist outside of the lawyer’s imagination, only to be identified rather than created, then maybe there’s less of convincing argument that choosing issues on appeal is a means instead of an objective.
But, on the other hand, even issue identification is a rhetorical act. Aristotle, for example, suggested that logical arguments are informed by artistic and inartistic proofs. Artistic proofs, Aristotle said, are created by the rhetor. An inartistic proof exists in sources outside the rhetor, such as in documents, facts, and other data. So, even if the issues to be raised on appeal are inartistic and not a product of the lawyer’s inventive capacities, there are still rhetorical choices a lawyer makes in finding and selecting those issues. (I tend to think that legal issues are created rather than found, but that depends on one’s view of the rhetorical situation. This classic debate between rhetoric scholars Lloyd Bitzer and Richard Vatz gets at that issue.)
Which rhetorical choices are means? Which ones are objectives?
Another question that Jones evokes is, if one agrees with Brennan’s view that some rhetorical choices are objectives rather than means, then which ones are which? For example, an appellate brief should have a theme. If, as Brennan suggests, the choice of issues can be an objective, is the theme an objective or a mean? How about metaphors? How about references to history or popular culture that help make a point? All of these choices give an appellate brief its character. Does that character belong, ultimately and ethically, to the lawyer or the client? Whose rhetoric—the lawyer’s or the client’s—should a brief reflect? And then, what should the appellate lawyer do about it?
Does the appellate lawyer’s professional expertise in legal rhetoric matter?
And finally, what might appellate lawyers make of Justice Brennan’s suggestion that except for a small handful of cases, the lawyer’s rhetorical choices in a brief—good or bad—are not so important? Brennan’s argument is just the opposite of the majority’s, which places great value on the professional expertise of the appellate lawyer. Brennan, instead, minimizes the value of the appellate lawyer’s contribution to justice, suggesting instead that, in most cases, judges can figure out the right result regardless of the effectiveness of the brief writing. If that is the case, what is the value the appellate lawyer adds in anything but a handful of cases? If the rhetorical, i.e., persuasive, writing of the appellate lawyer does not matter so much, then what does matter? And, if persuasive writing doesn’t really matter, then maybe in appellate brief writing, it doesn’t really matter if rhetorical choices are objectives or means.
Ultimately, I think that the lawyer’s rhetorical skill is most often a means to accomplish the client’s objectives that is influential and meaningful in the judicial process. That skill guides the decision maker, invents effective argument, brings perspective, and, perhaps, most importantly, shapes the law. Brennan acknowledged in his dissent that lawyers do, in some cases, help “shape the law.” This impact is even more obvious where judges, in written opinions, overtly respond to the arguments that the lawyers have raised. And an appellate lawyer’s writing, if not legally, then materially, gives the client voice in a system that may seem to be impenetrable, incomprehensible, and unfair. This makes the appellate lawyer’s rhetorical skill critical, particularly for clients who are not able to effectively do that for themselves regardless of whether a judge can find the just result all on their own.
That being said, Jones v. Barnes reminds that even if rhetorical choices in brief writing are most likely a means to accomplish the client’s objectives and that civil appellate lawyers are most often the last line of decision-making in which issues to raise on appeal, clients of all stripes deserve an opportunity to influence and their own voice to those choices. In fact, that kind of consultation can make briefs even more rhetorically effective because clients can invent arguments, too.
What have I missed in my analysis here? What do you think the ethics and rhetoric of raising issues in briefs? Your thoughts are welcome in the comments below.
Kirsten Davis teaches at Stetson University College of Law and in the Tampa Bay region of Florida. She is the Director of the Institute for the Advancement of Legal Communication. The Institute’s mission is to study legal communication issues and provide programming and training that improves legal communication skills. Among other things she’s up to right now, she’s currently serving on the Florida Bar Association’s Special Committee on Professionalism. The views she expresses here are solely her own and not intended to be legal advice. You can reach Dr. Davis at firstname.lastname@example.org.
Wednesday, September 8, 2021
The Supreme Court's Office of Public Information announced today that oral arguments for the rest of the calendar year will take place in the Courtroom, but sessions will be closed to the public. Understandable. But here's the good thing: the Court anticipates that it will continue to provide a live audio feed of oral argument, at least for the period where public access to the Courtroom is restricted.
So the Court will return to its traditional unstructured approach to oral arguments rather than continue with the seriatim-questioning approach it adopted for telephonic arguments during the pandemic. And the public will be able to follow arguments in high profile cases like New York State Rifle & Pistol Association v. Bruen in real time.
Tuesday, September 7, 2021
The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing. Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.
Do provide appropriate signposts:
- Do consider using headings and summaries.
- Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.
The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next
1. Point headings make our writing better.
Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.
A. Point headings are topic sentences.
Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.
B. Point headings should be full sentences.
Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better
1. Strict Scrutiny.
2. The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.
The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.
C. Point heading should look like sentences.
Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.
D. Point headings are not just for the argument section.
Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:
1. In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.
The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.
E. Point headings serve as a check on your analysis.
If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.
F. Good point headings start with a good outline.
The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.
G. You should include point headings in your Table of Contents.
Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:
Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.
2. Summaries make our writing better.
Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.
After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.
3. Transitions make your writing easier to follow.
A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.
Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.
September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (1)
Sunday, September 5, 2021
In the words of the late Justice Antonin Scalia, “[l[ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Roe v. Wade (and Planned Parenthood of Southeastern Pennsylvania v. Casey) stalks the Fourteenth Amendment’s jurisprudence yet again, reflecting the constitutional mess that these decisions created.
Specifically, in Dobbs v. Jackson Women’s Health Organization, the Court will decide whether a Mississippi law, which bans abortions after the fifteenth week of pregnancy, violates the right, created in Roe and reaffirmed in Planned Parenthood, to obtain abortions before viability (which occurs at approximately twenty-four weeks of pregnancy). By way of background, in Roe, the Court interpreted the Fourteenth Amendment’s Due Process Clause to support a fundamental right to terminate a pregnancy in certain circumstances. In so holding, the Court adopted a trimester framework that balanced a woman’s right to terminate a pregnancy with a state’s right to regulate the abortion procedure. In the first trimester, women had an unfettered right to terminate a pregnancy. In the second trimester, states could regulate abortion to protect a women’s health. After the second trimester – when the fetus became viable – states could prohibit abortions except when necessary to protect the life or health of the mother.
Scholars and judges of all political persuasions criticized the Court’s decision in Roe, arguing that the right to abortion could not be found anywhere in the Constitution’s text and certainly was not inferable from the Fourteenth Amendment’s Due Process Clause, which protects procedural, not substantive rights. These scholars were correct: the abortion right in Roe was predicated in substantial part on and an outgrowth of the Court’s decision in Griswold v. Connecticut, where the Court held that the Constitution contains invisible “penumbras,” that are “formed by emanations from those guarantees [in the text] that give them life and substance.” In other words, the Court could create whatever rights it wanted, regardless of whether the text supported creating those rights.
Two decades later, in Planned Parenthood, the Court made the problem worse. In a 5-4 decision, the Court upheld the central holding in Roe (the right to obtain abortions before viability) but rejected Roe’s trimester framework. In its place, the Court adopted the “undue burden,” test, which stated that before viability, states may not enact laws that impose a substantial burden on a woman’s right to access abortion services. It is obvious why Planned Parenthood introduced instability and unpredictability into abortion jurisprudence. After all, what constitutes an “undue burden” on the right to obtain a pre-viability abortion? No one knew the answer. Perhaps it was located in Griswold’s penumbras, which only the Court could access and define.
Not surprisingly, in response to what many rightfully perceived as judicial overreach in Roe and constitutional ambiguity in Planned Parenthood, some states embarked on a decades-long and seemingly never-ending mission to eviscerate, if not effectively overturn, Roe through legislation that imposes various restrictions upon when and under what circumstances women can obtain abortions. For example, in Planned Parenthood, a Pennsylvania law required minors to obtain parental consent, and adult women to inform their spouses, before obtaining an abortion. The Court upheld the former provision and invalidated the latter. In Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, Texas and Louisiana, respectively, enacted laws requiring physicians to obtain hospital admitting privileges before providing abortion services. In two 5-4 decisions, the Court invalidated both laws. These cases are just a sample of the many instances in which states attempted to limit, directly or indirectly, access to abortion.
And in every case, the Court declined the opportunity to clarify definitively the nature and scope of the abortion right, such as by unequivocally upholding or overruling Roe, or adopting categorical rules concerning when and under what circumstances women could access abortions. Instead, the Court applied the malleable “undue burden” test, which resulted in a case-by-case jurisprudence that led to uncertainty and often kept the abortion right hanging by a thread, dependent more on the current justices’ ideological predilections than on principled constitutional law. Simply put, the Court’s approach ensured that the abortion right would remain in constitutional purgatory, mired in uncertainty, and continuously under attack by states that viewed abortion as constitutionally unsupportable and morally indefensible.
Unfortunately, the saga continues.
In the latest installment of How to Overturn Roe While Acting Like You Are Not, the State of Mississippi has enacted a law that bans abortions after fifteen weeks – and thus bans a portion of previability abortions. Only this time, the plot doesn’t just involve Dobbs v. Jackson Women’s Health Organization, where the Court will decide whether Mississippi's law passes constitutional muster. Rather, Texas has decided to make yet another appearance into the abortion sage by passing an unusually bizarre law that: (1) bans all abortions after six weeks; and (2) gives citizens, not the state, enforcement power by authorizing private causes of action against those who provide or assist in providing abortion services after six weeks. This law is certainly unconstitutional; many women do not even know that they are pregnant at six weeks, thus rendering the six-week limit a substantial and unconstitutional burden on abortion access. Not surprisingly, in Whole Women’s Health v. Jackson, the Petitioner sought an order from the Court preliminarily enjoining the law's enforcement.
You’d think that, based on Roe and Planned Parenthood, the Court would have granted the injunction.
Last week, in a 5-4 decision, the Court declined to issue an injunction.  To be fair, the majority did not rule on the merits of Texas’s law. Rather, the Court held that the Petitioner did not meet the standard for obtaining a preliminary injunction because, among other things, there was no evidence that any private citizen intended to enforce the law, or that the Court had the authority to issue an injunction against state judges who were asked to decide the law's constitutionality. The Court was careful to emphasize, however, that its decision was not “based on any conclusion about the constitutionality of Texas’s law.”
The majority doesn’t live in a fantasy world. It knew that its decision would allow a law to go into effect that unquestionably violated Roe and Planned Parenthood, and effectively outlawed abortion for most women in Texas. As Justice Sotomayor explained in her dissent:
The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.
Furthermore, as Justice Breyer noted in his dissent, the Court could have enjoined the law on the ground that a state “cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.” Ultimately, the Court’s refusal to issue the injunction in Whole Women’s Health v. Jackson suggests that five justices may be prepared to overturn Roe or, at the very least, severely restrict abortion rights.
For that and other reasons, Dobbs v. Jackson Women's Health Organization is perhaps the most important abortion case in years. Whatever the justices decide, they should ensure that the opinion ends the constitutional mess that is abortion jurisprudence, in which the abortion right has been plagued by uncertainty and the Court’s decisions characterized by anything by clarity. The Court can do so by issuing a clear and categorical decision about whether abortion is a fundamental right and, if the answer is yes, clarifies definitively the scope of this right. The Court has several options, including:
- Overturn Roe and return the abortion issue to the states.
- Overturn Planned Parenthood but not Roe and return to the trimester framework.
- Overturn Planned Parenthood and Roe, but hold that the Equal Protection Clause supports the right to abortion.
- Uphold Planned Parenthood and Roe based on stare decisis.
The absolute worst result would be if the Court issued yet another fractured, 5-4 decision that invalidated or upheld the Mississippi law, but otherwise provided no clarity regarding the scope of the abortion right and the states’ power to restrict its exercise. The worst result would be if Chief Justice Roberts engaged in legal shenanigans yet again in a misguided to preserve the Court’s institutional legitimacy. The worst result would be if the Court issued a plurality opinion with multiple concurrences and dissents that made readers think that the Court just can’t – and perhaps never will – reach any agreement on how to address the constitutional mess that Roe created, and that Planned Parenthood exacerbated. Whatever happens, the abortion saga should be a lesson in what happens when courts ignore the Constitution and create rights out of thin air.
The time has come to bring the abortion soap opera to a conclusion and end the decades-old constitutional charade that Griswold, Roe, and Planned Parenthood created. In other words, either kill the monster or allow it to forever terrorize constitutional law and lurk in the hidden penumbras, waiting to trap and possess unsuspecting justices in those penumbras.
The Court’s abortion jurisprudence, however, suggests that the ending in the latest installment of How to Overturn Roe While Acting Like You Are Not will leave the audience wanting, just as in those 80s’ horror movies that ended with the killer seemingly dead, only to open an eye or move a body part before the screen fades out, signaling to the audience that yet another sequel is on the horizon.
 Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (Scalia, J., concurring)
 No. 19-392, available at: Dobbs v. Jackson Women's Health Organization - SCOTUSblog.
 410 U.S. 113 (1973).
 See id.
 See id.
 See id.
 See, e.g., Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu).
 381 U.S. 479 (1965) (brackets added).
 505 U.S. 833 (1992).
 See id.
 579 U.S. 582 (2016); 591 U.S. , 2020 WL 3492640.
 See id.
 See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
 See Whole Women’s Health v. Jackson, 594 U.S. (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).
 See id.
 See id.
 See id.
 Id. (Sotomayor, J., dissenting).
 Id. (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976)) (brackets in original).
Friday, September 3, 2021
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:
Most of the activity concerning the Supreme Court this week was related to the Texas fetal heartbeat abortion law. That law was scheduled to take effect on September 1, and was specifically written to make prior judicial review difficult. Nonetheless, litigation was commenced in federal court, where a federal trial court enjoined the law's taking effect and an appellate court reversed. That led to emergency petitions before the Supreme Court. The Court did not issue any response to the emergency petitions prior to September 1, and the law took effect on Wednesday. Late Wednesday night, by a 5-4 vote in an unsigned brief order, the Court ruled that it would not step in to stop the law from taking effect, indicating explicitly that it was not ruling on the merits or constitutionality of the law.
Coverage of the lead-up and requests for the Court's review:
Coverage of the Court's failure to act before the law took effect:
Coverage of the Court's Wednesday ruling:
Discussion of the implications of the Court's ruling and a larger discussion about the Court's "Shadow Docket":
State Appellate Court Opinions and News:
This week, the Arizona Supreme Court issued a decision eliminating peremptory challenges from the jury selection process. See this blog post from the Evidence Prof blog.
The Third Circuit Court of Appeals is taking applications for a staff attorney. See more at the court's website, HERE.