Appellate Advocacy Blog

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

Saturday, October 30, 2021

The U.S. Supreme Court’s Institutional Legitimacy is At Stake in Whole Women’s Health v. Jackson

Like a bad dream (or a toxic ex-partner), abortion has made yet another unwelcome visit to the United States Supreme Court, thanks to the State of Texas.

Texas is up to its old tricks again in its never-ending quest to find some way – any way – to disregard Roe v. Wade and Planned Parenthood v. Casey, and eviscerate abortion access in the Lone Star State. By way of background, in 2013, Texas passed a law requiring abortion providers to have hospital admitting privileges and claimed that the law’s purpose was to protect women’s health.[1] But the stated purpose was as meritless as it was disingenuous: complications from abortions are quite rare and less frequent than, for example, complications resulting from tonsillectomies and tooth extractions – neither of which were subject to such a requirement.[2] The law was challenged and, in Whole Women’s Health v. Hellerstedt, the Court, by a vote of 5-4, rightfully invalidated the law and implicitly recognized that its purpose was, in the words of former Governor Rick Perry, “to make abortion, at any stage, a thing of the past.”[3]

Sadly, Texas didn’t learn its lesson.

The legislature recently passed – and Governor Gregory Abbott signed – a “fetal heartbeat” law (“SB 2”)  that prohibits abortions after six weeks. But there’s more: ostensibly aware that the law unquestionably violates Roe and Planned Parenthood, which held that women have the right to terminate a pregancy before viability (approximately twenty-four weeks), Texas designed a ridiculous scheme to evade review by the federal courts. Specifically, SB 2 authorizes private citizens, not state officials, to enforce the law by giving all citizens the right to sue abortion providers who perform abortions after six weeks.[4] And to incentivize such lawsuits, Texas is offering private citizens at least $10,000 if they succeed in a lawsuit against an abortion provider. Put simply, SB 2 creates private bounty hunters.

Not surprisingly, SB 2’s constitutionality was immediately challenged. Initially, the Court refused to grant injunctive relief, holding that, although the law raised serious constitutional questions, it also raised “novel antecedent procedural questions," such as whether the Court had the power to issue an injunction against “state judges asked to decide a lawsuit under Texas’s law,” and whether an injunction was proper given that the named defendants lacked the power to enforce the law.[5] As a result, the law is now in effect and abortions in Texas are, as a practical matter, a thing of the past.

So here we are again.

Like in Hellerstedt, where Texas unsuccessfully argued that a hospital admitting privileges requirement was necessary to protect women’s health – a justification the Court rightfully rejected – it  now argues that it can effectively eliminate the right to abortion by adopting a private enforcement scheme that uses citizens as proverbial human shields to evade federal review and preclude injunctive relief . As in Hellerstedt, the Court should invalidate this ridiculous law, which thumbs its nose at the Court, its abortion precedent, and judicial review. The law unquestionably violates Roe and Planned Parenthood, and is an unconstitutional assault on the viability threshold. The Court should recognize the obvious.

If the Court fails to do so, it will severely, if not irreparably, undermine its institutional legitimacy. Indeed, at a time when forty percent of the public has confidence in the Court, doing the right thing – regardless of ideology – is critical.[6]

To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Whole Woman’s Health the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is the point – and the problem.

Yet, this is precisely what the public may believe if the Court refuses to grant Petitioners relief and, instead, focuses on the “novel antecedent procedural questions," such as those mentioned above. Doing so will likely be viewed for what it is: conservative justices hiding behind Texas’s legislative shenanigans to all but outlaw abortion in Texas and, concomitantly, give states carte blanche to eviscerate any constitutional right simply by enacting a private enforcement scheme. If the Court countenances such nonsense, constitutional rights will be worth the equivalent of Monopoly money.

The Court should grant Petitioners relief.  Regardless of whether one is pro-life or pro-choice, what matters is recognizing this charade for what it is: a sophomoric and transparent attempt to disregard Roe and eliminate abortion. 

Ultimately, the mess that is abortion jurisprudence reflects three problems with the Court's decisions in this and other areas.

  1. Living Constitutionalism. The Court is in this mess primarily because Roe v. Wade was a constitutionally indefensible decision. Decided less than a decade after Griswold v. Connecticut, an equally indefensible decision, the Court created a right to privacy (and abortion) out of thin air, as no reasonable interpretation of the Fourteenth Amendment’s Due Process Clause could support recognizing these rights. The backlash among states that Roe and, later, Planned Parenthood engendered, and that has thrust the abortion right into uncertainty for decades, reflects the flawed reasoning in these decisions. 
  2. An ambiguous legal standard. In Planned Parenthood, the Court reaffirmed the central holding in Roe but created a new standard by which to assess the validity of abortion restrictions. Specifically, the Court held that laws regulating abortion cannot place an “undue burden” on a woman’s right to terminate a pregnancy. But what exactly constitutes an “undue burden"? No one knows. Adopting this vague standard created uncertainty and unpredictability regarding the right to abortion and only guaranteed that states like Texas would continually attempt to limit, if not eliminate, abortion access.
  3. Incrementalism. The Court, particularly under Chief Justice John Roberts, has adopted an incremental approach to deciding cases, in which the Court only decides the narrow legal issue before it, thus eschewing broad rulings or the adoption of categorical legal rules. This approach has many benefits. Sometimes, however, clear – and categorical – rules are necessary to bring clarity to the law, guide lower courts, and bring stability to the law.

The Court’s abortion jurisprudence suffers from all three flaws. As such, it should not be surprising that the right to abortion has for decades led to countless legal challenges and continued uncertainty.

Hopefully, the Court will recognize – and rectify – the problem. Its institutional legitimacy depends on it.

 

[1] 579 U.S. 582 (2016).

[2] See id.

[3] Press Release, Governor Rick Perry, Tex., Governor Perry Announces Initiative to Protect Life (Dec. 11, 2012), http://perma.cc/CWN2-KLDD.

[4] See Brief of Professors Adam Lamparello, Charles E. MacLean, and Brian Owsley in Support of Petitioner, available at: Microsoft Word - Amicus Brief In Support of Petitioners (supremecourt.gov).

[5] See Whole Woman’s Health v. Jackson, 594 U.S.        (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).

[6] Se Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (September 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

October 30, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Thursday, October 28, 2021

Appellate Court Recusals

Motions requesting recusal of an appellate judge are relatively rare. But as appellate cases become more and more about hot-button political issues, an increase in recusal motions at the appellate level is likely and perhaps already happening. For an appellate practitioner, it is important to understand the bases for judicial disqualification as well as what may happen if there is a recusal in an appellate court as the answers to these questions may factor into any strategic decision to move for recusal.

When is recusal on appeal required?

On occasion, the constitutional right to due process mandates recusal of a judge. Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009). Because "most matters relating to judicial disqualification [do] not rise to a constitutional level," FTC v. Cement Institute, 333 U.S. 683, 702 (1948), "only in the most extreme cases would disqualification on this basis be constitutionally required." Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 821 (1986). Circumstances that have implicated due process concerns include cases in which (1) the judge has a direct pecuniary interest, (2) a court will be tempted to impose a fine because it benefits the judge or the judge's governmental entity, (3) the judge was responsible for bringing criminal charges against the defendant or the judge is holding someone in contempt for a personal affront, or (4) one of the parties has made a contribution to the judge's election campaign large enough to affect the outcome of the election, knowing the party's case would come before the judge. Caperton, 556 U.S. at 877-87.    

Absent a due process issue, a statute or rule usually controls whether a judge should be disqualified. In the federal system, judicial recusal is governed by 28 U.S.C. § 455. Under that statute, there are two categories of disqualification: (1) recusal in any proceeding in which "impartiality might be reasonably questioned"; and (2) recusal due to (a) actual bias or prejudice concerning a party, (b) financial interest, no matter how small, in a party, (c) service as a lawyer in the controversy while in private or governmental practice, or (d) having a spouse or child who is a party, lawyer, or witness in the matter. The first category of disqualification can be waived by the parties following full disclosure; the second category cannot.

Similar criteria for recusal exist in state systems. In my home state of North Carolina, for instance, the Code of Judicial Conduct provides that a judge should recuse upon the motion of a party, or on the judge's own initiative, whenever the judge's "impartiality may reasonably be questioned." The rule then provides a non-exhaustive list of specific instances when recusal is appropriate that roughly mirrors the bases for recusal in the federal statute.

The messy question is what is meant by "impartiality [that] might reasonably be questioned." Recusal rules generally permit the judge being asked to recuse to decide in the first instance whether disqualification is necessary. Some rules also provide that certain recusal motions should be referred to another judge for decision, usually if the taking of evidence might be required to resolve the question.

If an appellate judge refuses to recuse, what recourse is there? Unlike the refusal to recuse at the trial level, refusal of an appellate judge to recuse generally is subject to less review than the refusal of a trial judge. After all, review of an intermediate appellate court judge's refusal to recuse may only be reviewable in an appeal--often discretionary in nature--to the highest court of the jurisdiction from a final decision of the intermediate appellate court in the case.

And what about the refusal to recuse by a justice of the highest court of a jurisdiction? What court will review that decision? Unless the refusal amounts to a due process violation, the United States Supreme Court is not going to intervene. But can the full court decide to involuntarily recuse one of its own?

These questions are brewing in North Carolina.

In NAACP v. Moore and Berger, the plaintiffs filed a lawsuit against two state legislators in their official capacities challenging a voter ID law and a state income tax cap. The plaintiffs contend the laws are unconstitutional because they were passed by a legislature with members elected from districts that a federal court ruled were unconstitutionally gerrymandered. The plaintiffs won at the trial level, but the North Carolina Court of Appeals reversed in a 2-1 decision. By virtue of the dissent at the intermediate appellate court, the plaintiffs appealed to the North Carolina Supreme Court. The plaintiffs then moved to recuse two of the seven members of the court, one because his father is one of the named defendants and the other because she was in the legislature when the laws in questions were enacted. In what would have to be considered a surprise move, the North Carolina Supreme Court subsequently entered an order requiring the parties to brief a number of issues related to recusal including whether the full court can order the involuntary recusal of its members.

It seems from the order entered by the North Carolina Supreme Court that it hopes to nail down some sticky questions about recusals. That is a laudable goal. In the end, one party or the other will be unhappy (as in most appellate decisions). And while the potential reasons for disqualification in the case may not fit the criteria for a due process violation, it would not be difficult to see the losing party seeking some sort of further review.

What is the effect of recusal?

What happens if there is a recusal at an appellate court?

At the trial level, disqualification of a judge means another judge will preside in the case. At an intermediate appellate court, typically sitting in panels, there usually is a another member of the court that can be substituted for a recused judge (but see below). At the highest court of a jurisdiction, usually sitting with all members, a recusal can become much more complicated.

The highest court of a jurisdiction normally will sit without a recused justice so long as there is the quorum necessary for the transaction of business. If more than one member of the highest court of the jurisdiction is recused, however, it becomes more interesting. If, for instance, both justices in the North Carolina case noted above are recused--voluntarily or involuntarily--does that mean the five remaining members can decide the case based on a majority vote of those remaining members? In North Carolina, at least, the answer is no. Regardless of how many justices are recused, four members of the seven-member court must rule one way or the other in order to constitute a decision of the court. Northwestern Bank v. Roseman, 319 N.C. 394, 395 (1987). If four justices do not agree, the lower court decision stands without precedential value. Id. In other words, the plaintiffs in the North Carolina case--having lost at the North Carolina Court of Appeals--will need at least four votes to reverse that decision regardless of how many members of the court ultimately sit for the case.

If there is not a quorum at the highest court of the jurisdiction due to multiple recusals, there is a danger that the issues before the court will go unanswered. As noted above, it usually is simple to substitute another member of an intermediate appellate court for one who is recused. In a recent case, however, all fifteen members of the Fourth Circuit Court of Appeals recused themselves. United States v. Roof, 10 F.4th 314 (4th Cir. 2021). Because judges in the federal system can sit by designation, three members of other circuit courts of appeals were designated for and ultimately decided the case. Id.

When there is not a quorum in the highest court of a jurisdiction, more drastic measures may be required. In yet another case from my home state, Lake v. State Health Plan for Teachers and State Employees, the plaintiff class members are challenging a law requiring government retirees to pay premiums for their health insurance. The plaintiff class prevailed at the trial level, but the North Carolina Court of Appeals reversed. Although the North Carolina Supreme Court granted review of that decision, it then disclosed that five of its seven justices have family members who are or could be members of the class.

Needing at least four justices to constitute a quorum, the North Carolina Supreme Court in Lake ultimately entered an order exercising the "Rule of Necessity" to permit all members of the court to hear the case. The "Rule of Necessity" is invoked when a judge has an interest in the outcome of a case but there is no provision for substitution of another judge. Noting that the rule dates back at least six hundred years and quoting the Supreme Court of Kansas, the United States Supreme Court has stated: "'[It] is well established that actual disqualification of a member of a court of last resort will not excuse such member from performing his official duty if failure to do so would result in a denial of a litigant's constitutional right to have a question, properly presented to such court, adjudicated.'" United States v. Will, 449 U.S. 200, 214 (1980) (quoting State ex rel. Mitchell v. Sage Stores Co., 143 P.2d 652, 656 (1943). Needless to say, that order likely pleased one side but not the other.

It is important to understand the bases for recusal and the possible ramifications of recusal in an appellate court. The North Carolina cases now pending highlight the difficulties in dealing with recusals at the highest appellate court of a jurisdiction. Perhaps the decisions in those cases will give some clarity.

October 28, 2021 | Permalink | Comments (0)

Monday, October 25, 2021

There is a meme for that....

For years, I have required my students in Advanced Legal Writing (Appellate Brief Writing) to watch a real oral argument. Typically, they watch one on campus when either the Arizona Supreme Court or the Arizona Court of Appeals visits.

For some time, I struggled with an appropriate assessment of this activity. I didn't want to require a memo, since that is what they did as 1Ls.  Then, I read a book chapter by Jane Bloom Grisé entitled "Improved Comprehension with Visual Images."  The chapter appears in Lawyering Skills in the Doctrinal Classroom, which is edited by Tammy Pettinato Oltz. Professor Grisé writes about how student learning improves when they read something complex and then find an image that explains the text. In the chapter she describes some of the assessments that she has done and student reactions to those assessments.

Inspired by the chapter, I decided to incorporate a visual image assignment into my brief writing class. After my students watched the oral argument, they needed to find or create a meme or image that reflected the argument. After doing this assignment a few times, it has become one of my favorites of the semester. I am astounded by the creativity of the students.  Sometimes the memes touch on the subject matter of the argument. Other times, however, students reflect on the advocacy--such as one advocate's inability to answer a question or that advocate's surprise as a line of questioning. Inevitably the memes serve as a starting place for us to discuss strong advocacy.  And, we usually get in a few laughs as well.

 

October 25, 2021 | Permalink | Comments (0)

Sunday, October 24, 2021

Qualifying for Qualifying Immunity

Last week, in two per curiam opinions, the Supreme Court reversed decisions of the Ninth and Tenth Circuits by holding that the police officers accused of exercising excessive force were entitled to qualified immunity. In both decisions, the Court found that no clearly established precedent put the officers on notice that their actions violated the suspect’s rights. Many commentators described the decisions as a blow to police reform and asserted that the Court displayed a tin ear about roiling concerns about racial justice and criticisms of qualified immunity.

That dissatisfaction was poignantly expressed at the end of summer by U.S. district court judge Carlton Reeves where he reluctantly applied qualified immunity to dismiss an action against a Mississippi police officer, who pulled over a Mercedes driven by a black man on the assumption by the officer that the driver had to be involved with drugs to be operating the luxury car. He detained the man for nearly two hours while the car was disassembled (and then left that way) in a fruitless search for contraband. Through simple declarative sentences recalling other similarly wrongheaded incidents,[1] many of which resulted in tragic deaths, Judge Reeves made clear how qualified immunity has served as a “shield” for police abuse and misconduct, even as he followed controlling precedent.

To be sure, the judge-made doctrine of qualified immunity has its most urgent and controversial application in the context of police actions. Even critics of qualified immunity acknowledge that some split-second decisions do not allow the type of reflection necessary to understand why certain conduct crosses a line. Yet, qualified immunity applies not only to pressing life or death situations, but also to circumstances where deliberation is possible and where the offender is not a police officer, but people knowledgeable in the law. Two cases in which I have been involved demonstrate the uneven application of qualified immunity and why the doctrine is overdue for an overhaul.

In Stamps v. Town of Framingham,[2] the First Circuit denied qualified immunity to a police officer, who as a member of a SWAT team, was asked to watch an elderly black man while other members of the team searched the man’s apartment for a stepson wanted in connection with selling crack. SWAT had been briefed that Eurie Stamps, Sr., a 68-year-old retired Metro worker, was no threat. Shortly after midnight, the team executed a raid by throwing a flashbang grenade through the kitchen window as others battered down the front door. When they met Stamps, he complied with an order to get down on the floor on his stomach with his hands and feet in the air. The officer asked to watch Stamps as the search continued, pointed his assault rifle at Stamps’s head with the safety off and his finger on the trigger. Then, the officer unintentionally pulled the trigger, killing Stamps. The stepson was not in the apartment.

 Framingham defended by claiming that qualified immunity should require dismissal of the subsequent lawsuit because it was not “clearly established” that the unintentional discharge of the rifle violated the decedent’s rights. The First Circuit made short work of the claim. Pointing the rifle at a person’s head when he posed no threat and was suspected of no criminal act was the intentional act that put in motion the weapon’s discharge and that type of recklessness was comparable to past precedents, making it clearly established and putting police officers on notice. The “clearly established” requirement was satisfied, largely by reference to federal appellate decisions in other circuits.

 However, in Echols v. Lawton,[3] the “clearly-established” requirement defeated the lawsuit. In Echols, the plaintiff had served seven years in prison for a crime he did not commit and that DNA evidence, examined as a result of work by the Innocence Project, finally exonerated him. Echols lost his family, his military career, and his health as a result of his long, imprisonment. He was released, after the State entered a nolle prosequi on the charges. A bill was introduced in the legislature to compensate him, and the Georgia Claims Advisory Board voted unanimously twice to support the bill. However, the bill was derailed when the prosecutor sent letters to key legislators, asserting the conviction was proper and, falsely, that Echols remained under indictment for the original charges of rape and kidnapping. The bill then died.

Echols sued the prosecutor for violations of his First and Fourteenth Amendment rights. The Eleventh Circuit, while finding the prosecutor’s actions, undertaken with deliberation, highly detestable and likely libel per se, nonetheless found that the violations were not “clearly established” in that circuit. Even if other circuits would have found no qualified immunity based on existing precedent, the Eleventh Circuit requires an on-point in-circuit precedent before qualified immunity can be denied. Echols now serves as a precedent for a future case, clearly establishing that a prosecutor cannot misrepresent to other government officials the case’s status. It is now “clearly established” that the same misconduct would not be immunized in the future. It did not matter that rules of ethics and rules specifically applicable to prosecutors plainly prohibited what occurred here; the court required a precedential decision from within the circuit, something that other circuits do not. Oddly, Supreme Court precedent does not even require a prior ruling on the issue.

Interestingly, the panel included a judge sitting by designation from the Sixth Circuit. He concurred in the decision, only because of the Eleventh Circuit requirement of a prior in-circuit decision, stating that his circuit would have denied qualified immunity.

The many decisions that provide qualified immunity insensibly to a host of situations where the violation is patent and the different standards applied by the circuits at this late date in the doctrine’s existence calls for its reexamination. Reconsideration of the doctrine is coming – sooner is much better than later.

 

[1] See Jameson v. McClendon, No. 3:16-cv-595, https://www.documentcloud.org/documents/7013933-Jamison-v-McClendon.html.

[2] Stamps v. Town of Framingham, 813 F.3d 27, 29 (1st Cir. 2016).

[3] Echols v. Lawton, 913 F.3d 1313 (11th Cir.), cert denied, 139 S.Ct. 2678 (2019).

October 24, 2021 in Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, October 20, 2021

Counterpoint: Use (cleaned up) or something like it

The (cleaned up) debate continues apace. Tessa has articulated well one side of the debate, so I thought I'd quickly respond to her points.

  1. Judges can do it, just not attorneys. Let's recall that it was an appellate attorney--Jack Metzler--who came up with it. So if only judges are free to do this sort of innovation, then there will be less--if any--helpful innovation in citations. I started using it a few years ago after a member of our court of appeals used it in an opinion. I see innovations like this being a two-sided conversation with the bench. Of course, you have to know your bench--if it's going to irk the judge(s) you appear in front of, then using it is not worth the distraction that could detract from your arguments.
  2. The citations matter. I wholeheartedly agree that citations belong in the body, not footnotes, because the legal reader wants to know at a glance the authority supporting your assertions. But (cleaned up) doesn't have to sacrifice that. Sometimes the source of a quote is important, sometimes not. If it is, cite to the original case--no need to clean up. If it's a fairly mundane proposition, but you like the quote, then use it and clean it up. If the line of authority is important, then don't use (cleaned up) that time .
  3. It's too informal. I know a number of attorneys who think that (cleaned up) sounds too informal for a court document. Some members of our court of appeals apparently feel this way, but it doesn't stop them in principle--they just use (quotation simplified) instead.
  4. It means more trouble for the court and clerks to look up authority. No judge is going to just take an attorney's word for what a case says, regardless of the parenthetical--they and their clerks will be reading the cases anyway.
  5. It's deceptive. Whether something is deceptive depends on the user. Just because I can quote Exodus 20:14 as "Thou shalt . . . commit adultery" doesn't make use of ellipses inherently deceptive. Like any tool, (cleaned up) should be used with judgment and skill, but it's just that--a tool.
  6. It's overused. I agree that some attorneys can get carried away with it, but again, I don't see that as an argument against using it well. A lot of people drink too much too, but that's not a reason to stop everyone else from drinking. Those attorneys have issues that go beyond their use of a citation signal.

October 20, 2021 | Permalink | Comments (3)

Monday, October 18, 2021

(Clean[] Up) Your House, Your Car, Your Life--Not Your Citations

Unpopular opinion--Lawyers should not use (cleaned up) citations in their briefs. 

Two years ago Charles Oldfield blogged on this very blog about (cleaned up) citations. As Charlie explained it, in legal writing we often "alter or omit inconsequential parts of the quotation to make the quotation more readable."  All of those alterations and omissions can make a quote difficult to read between the ellipses, the [sic], and the brackets.  The solution, as proposed by Jack Metzler of @SCOTUSPlaces, is to omit these changes and use a parenthetical (cleaned up) to signal to our readers that we have not indicated those changes. 

Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago. Apparently, Bryan Garner has endorsed the practice too--but he also supports the dreaded practice of footnoting citations. The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.

So, now for my unpopular opinion--Judges can use (cleaned up) all they want.  But attorneys should not unless the court rules expressly allow for it.

I have no issue with Justice Thomas or any other judge using (cleaned up). I consider that a benefit of being on the bench.  The truth is that judicial opinions are rarely models of exemplary citation form. And, to be honest, they don't have to be. If the briefing was done well, there shouldn't be many sources in the opinion that come as a surprise to the advocates. Attorneys, on the other hand, write to inform the court about the issues and the law. Citations and explanations of caselaw are a key part of that responsibility. Perhaps one of the best explanations of the role of citations that I have read came from Eugene Volokh.  He wrote:

I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

If judges do view citations and quotations to caselaw as "the most important part of the argument," then they might be wary of efforts to clean those sources up.  As I explained in this blog post, one of judges' most common complaints about briefs is that attorneys misstate the law and record. That post, in fact, discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases.

If I were a judge, a brief full of (cleaned up) citations would just annoy me (and my clerks), since we would have to carefully check each cite. Sure, one would hope that the opposing party would help out, but you never know.  And, while I am aware that misrepresenting quotations isn't the spirit of the (cleaned up) citation, I am also aware that regardless of its purpose it would be misused as a citation device.

So, my advice for attorneys (and students) is to avoid (cleaned up) citations for the present. If court rules eventually adopt the practice, then you can use it correctly (and hopefully sparingly).

 

October 18, 2021 in Appellate Practice, Legal Writing | Permalink | Comments (0)

Saturday, October 16, 2021

Why We Should Use Proper Apostrophes, Even on Facebook

Like many, I use “Weird Al” Yankovic’s “Word Crimes” in my legal writing classes.   See    https://www.youtube.com/watch?v=8Gv0H-vPoDc.  In the past few years, I have added a note about not calling each other “morons” when I play the video.  Nonetheless, the song and lyrics still have great examples about why we need Oxford commas, correct apostrophes, and other basic punctuation, all to a catchy tune.  Often, I pair this discussion with an analysis of the 2018 Maine dairy delivery drivers’ dispute about a missing comma and overtime pay.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  I’ve blogged about the Maine case before, as it leads to great teaching discussions.  See also Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/ (“For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”).

This month, the District Court of New South Wales in Australia gave us another ruling on punctuation, this time involving defamation and a Facebook post.  See https://www.theguardian.com/law/2021/oct/10/missing-apostrophe-in-facebook-post-lands-nsw-real-estate-agent-in-legal-hot-water.  As New York Times writer Livia Albeck-Ripka explained in her article on the case, “a missing apostrophe in a Facebook post could cost a real estate agent in Australia tens of thousands of dollars after a court ruled a defamation case against him could proceed.”  https://www.nytimes.com/2021/10/11/world/australia/facebook-post-missing-apostrophe-defamation.html#:~:text=Missing%20Apostrophe%20in%20Facebook%20Post%20Lands%20a%20Man%20in%20Defamation,mark%20may%20cost%20him%20thousands.

In his Facebook post, real estate agent Anthony Zadravic appeared to accuse Stuart Gan, his former employer at a real estate agency, of not paying into the Australian government retirement fund for all of the agency’s employees, and not just for one employee.   Zadravic’s Facebook post stated:

Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation [for the Australian retirement system].  Shame on you Stuart!!! 2 yrs and still waiting!!!

Id.  Gan filed a defamation claim against Zadravic, alleging the Facebook post improperly stated Gan had not paid his contributions for any of his employees, since Zadravic did not use an apostrophe in “employees.”

Although Zadravic explained he meant the singular “employee’s” contributions for his own account, the court refused to dismiss Gan’s case.  The court ruled the plural “employees” without an apostrophe could “be read to suggest a ‘systematic pattern of conduct’ by Mr. Gan’s agency rather than an accusation involving one employee.”  Id.  Thus, the judge allowed the defamation case to move forward.

While there are lower standards for defamation in Australia than in the United States, for example, the punctuation point is well-taken.  Just as we teach our students to be cautious in their work texts and avoid imprecise language, emojis, and the like, we should also caution them be careful not only in content, but also in language on social media. 

My teen/twenty-something sons will roll their eyes (via emojis, no doubt) at my suggestion we use proper grammar on social media.  However, when our students and newer associates are posting about professional matters, they should err on the side of caution.  Many employers, in fact, have strict guidelines on social media posts, and using proper punctuation helps ensure compliance.  

Thus, whether we use the dairy drivers, “Weird Al’s” YouTube videos, or now the Facebook apostrophe case, we have several fun sources to encourage discussion and create teaching moments on commas, apostrophes, and more.  

October 16, 2021 in Appellate Practice, Current Affairs, Legal Writing | Permalink | Comments (0)

Sunday, October 10, 2021

Becket is Hiring

I received word this week that Becket is hiring. For those who are not familiar with Becket, it is a leading religious liberty public interest law firm with a superb record before the U.S. Supreme Court.  It would be an excellent place to get some appellate experience. The details on the positions are below:

First, Becket is seeking to hire 1-2 new attorneys as Counsel. Ideal candidates will have an appellate clerkship, 1-5 years of post-law-school experience, and excellent litigation skills. You can find more details on the position here: https://www.becketlaw.org/counsel-position/.

Second, Becket is seeking 2-3 new attorneys for its 2022-23 Constitutional Law Fellowship. The fellowship is a one-year position that is open to exceptional recent judicial clerks. It provides immediate, hands-on experience litigating cutting-edge constitutional cases under the mentorship of experienced Becket attorneys. It is also an excellent stepping stone to an additional judicial clerkship, government service, private practice, or public interest law. Fellowships start in fall 2022 and offer a competitive salary and benefits. You can find more details here: https://www.becketlaw.org/constitutional-law-fellow-posting/.

October 10, 2021 in Appellate Practice, Federal Appeals Courts, Legal Profession | Permalink | Comments (0)

A Supermajority Requirement Would Solve Nothing

            If the solution is simple, it might not actually be a solution. Last week, another contributor to this blog suggested that a six-vote supermajority rule could help resolve concerns about the Supreme Court being just another political institution rendering political decisions. The suggestion struck me as misguided and ineffective.

            In recent weeks, no fewer than four justices have spoken out that they are not, as Justice Amy Coney Barrett put it, “political hacks.” Each made the point that they adhere to a judicial philosophy, rather than carry their political preferences into law. Although I have no doubt that each believes that to be true, the judicial philosophies that each espouses, on many of the hot-button issues that come to the Court, tend to coincide with views of the political party of the president who appointed them, which is why modern Supreme Court nominations generate deep political schisms. To be sure, there are occasional “strange bedfellows,” where the majority line-up includes justices thought to have incompatible philosophies/politics and where the results surprise. Still, most decisions seem to follow political views as much as judicial philosophy so that any distinction that exists appears, at best, a subtle one.

            Accusations that the Court is engaged in politics are not new and would not change if a supermajority requirement were adopted. Two of the most important constitutional law decisions issued by the Court, both of which were unanimous, were criticized as political and evinced a political tinge. The dispute in Marbury v. Madison,[1] for example, came out of the political growing pains of a new nation during the first transition of power from one political party to another. The Federalist administration of John Adams tried to seed the judiciary with party loyalists, just as Democratic-Republican Thomas Jefferson was about to take office. In the rush of appointing “midnight judges,” some commissions were not delivered by Secretary of State John Marshall before his successor, James Madison, took office. It was Madison’s refusal to deliver those commissions that resulted in William Marbury’s lawsuit seeking to complete his appointment as a justice of the peace.

            The new Congress recognized the case would be decided by Federalist appointees, including John Marshall, himself a midnight judge. It cancelled the upcoming Supreme Court term, delaying the case. When the Court finally heard the matter, it was fully aware of the political stakes involved and how a politically problematic decision would generate retaliation against the Court. As the administration and Congress feared, the Court held Marbury was entitled to his commission. Yet, in a masterful twist, the Court also held it was without authority to provide relief because the congressional authorization giving the Court jurisdiction to issue a writ of mandamus conflicted with the Constitution’s limited grant of original jurisdiction. The Court struck down this extra-constitutional authorization, exercising the power of judicial review. It avoided a confrontation with the Jefferson administration over its power to order the seating of Marbury, while establishing the Court as the venue where the Constitution would be authoritatively construed and laws struck as unconstitutional. The decision was a balancing act that operated to preserve – and, indeed, strengthen – the Court as an institution.

            The second landmark foundational case, Brown v. Board of Education,[2] unanimously struck the separate, but equal doctrine. Though it now, deservedly, garners laurels, it generated a storm of criticism at the time, including a massive-resistance movement and Senator James O. Eastland’s declaration that the opinion was a “legislative decision by a political court.” The decision came to be in large part because Chief Justice Earl Warren used his political skills honed as governor of California and the Republican vice presidential nominee before taking the bench to work his colleagues so that a single authoritative opinion spoke for the Court. Similar “political” considerations resulted in the decision in Cooper v. Aaron,[3] signed by each of the justices as though co-authors, to express the Court’s emphatic intolerance of delays in desegregating Central High School.

            These decisions did not merely hew to some abstract concept of law existing somewhere only to be found, but recognized the legal questions being answered existed in a political world in which the Court’s authority would be questioned.

            Requiring a supermajority vote fails to assure public confidence and respect. It is not the line-up of the vote, but the reasoning and consequences that count. Some of the worst decisions in Supreme Court history boasted overwhelming support among the justices, such as: Dred Scott v. Sandford[4] (7-2, holding that African-Americans could not be U.S. citizens and likely precipitating the Civil War ); Plessy v. Ferguson[5] (7-1, creating the separate-but-equal doctrine); Korematsu v. United States[6] (6-3, upholding the internment of Japanese-Americans during World War II); and, Buck v. Bell[7] (8-1, finding no constitutional impediment to a state law mandating sterilization of those deemed “feebleminded” to prevent future generations from inheriting “bad” genes). In each of these cases, the political considerations were determinative.

            The point is that a 6-3 supermajority requirement provides no guarantee that the Court will render decisions divorced from politics – or – decisions that are sounder from some hypothetical purely legal perspective.  And a more closely divided Court is no more or less legitimate than one that garners an additional vote or two for its majority.

            The proposal aired in this blog specifically argued in favor of at least six votes to affirm or reverse a lower court decision. Without a supermajority, the proposal would let the lower court decision, whether it was made in federal or state appeals courts, stand, even if it were the product of a bare majority on that court or constituted a plurality opinion. Those consequences, however, would produce their own political dynamics – a Supreme Court able to avoid controversy due to a lack of supermajority support for one result or another, disharmony on federal questions across the circuits and state courts so that federal law would be different depending on where a person lived, and, possibly, even summary reversals of decisions disliked by a supermajority without an agreed-upon ratio decidendi, creating uncertainty about what rule of law applies. None of these consequences are more desirable than the current approach.

            A supermajority requirement simply would not depoliticize the Court.

 

[1] 5 U.S. (1 Cranch) 137 (1803).

[2] 347 U.S. 483 (1954).

[3] 358 U.S. 1 (1958).

[4] 60 U.S. (19 How.) 393 (1857).

[5] 163 U.S. 537 (1896).

[6] 323 U.S. 214 (1944).

[7] 274 U.S. 200 (1927).

October 10, 2021 in Appellate Court Reform, United States Supreme Court | Permalink | Comments (0)

Saturday, October 9, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, October 9, 2021

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.

US Supreme Court Opinions and News

Appellate Court Opinions and News

  • The controversial Texas abortion ban was blocked and then reinstated this week. The Texas law bans most abortions after about 6-weeks, making abortion virtually impossible in Texas. Judge Pitman of the District Court for the Western District of Texas blocked the ban, recognizing the deprivation of a constitutionally protected right. Judge Pitman wrote: “[T]here can be no question that [the law] operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and ‘equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.’”  He ends the opinion by finding that “[f]rom the moment [the Texas law] went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” See Judge Pitman’s decision and reports on the decision from NPR, Reuters, The New York Times, APNews, the Austin American Statesman, and The Washington Post.

  • Late Friday, the Fifth Circuit stayed Judge Pitman’s order.

Appellate Practice

The Advocate’s Society, Appellate Advocacy Practice Group: Networking Launch, is offering an online program titled “Dirty Tricks of Appellate Advocacy?” on October 26.

October 9, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, October 7, 2021

Communicating with Clients, Cultural Competency, and Rhetorical Listening

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.

Just yesterday, the American Bar Association’s Standing Committee on Ethics and Professional Responsibility issued its Formal Opinion 500, “Language Access in the Client-Lawyer Relationship.”  (Formal Opinions are the means by which the ABA offers its advice on how to interpret its Model Rules of Professional Conduct, the model upon which all fifty states ethics rules are based.)  In that Opinion, the Standing Committee took up the question of a lawyer’s duties when the lawyer and client do not share a common language.  The Standing Committee concluded that when a lawyer and a client do not share a common language or mode of communicating, there is room for misunderstanding that can impact the sufficiency of the lawyer-client communication and the competency of the representation.  In other words, if a client cannot understand what the lawyer is saying because of a language barrier or the lawyer cannot fully understand what the client is communicating, the lawyer’s ethical duties of competency and communication are at risk.

In these cases, the Standing Committee said, lawyers have a duty to get assistance from “qualified and impartial” interpreters or employ “assistive or language-translation devices” (such as closed captioning, live transcription, or speech recognition software) that enable the client to participate fully and intelligently in the representation and to ensure that the lawyer is competently gathering information to prepare the client’s case.  Lawyers would be wise to take a look at Formal Opinion 500 as it gives detailed advice on when a lawyer has a duty to employ the services of a translator, interpreter, or other assistive communication device. It also explains what to consider in determining if an interpreter is qualified. 

The most interesting part of the Formal Opinion, however, from a rhetorical perspective, comes at the end in the guidance about cultural competency.  In that section, the Standing Committee turns from a discussion on language and physical barriers to communication to the barriers created by social and cultural differences between lawyers and clients.  The Standing Committee suggests that language differences may indicate cultural differences that impact how lawyers and clients interpret their communications.   In other words, the “[t]he client may view the representation and the choices it entails through the lens of cultural and social perspectives that are not shared by or familiar to the lawyer.”  As a result, the Committee said, the lawyer has a responsibility to develop cross-cultural competence that enables the lawyer to navigate and understand how clients give meaning communications based on the the whole context of their cultural, social, and lived experiences.  Ultimately, the Opinion concludes that effective communication between lawyers and clients exists only when “client[s] understand[] the relevant law and legal, institutional, and social contexts of the communication." In other words, lawyers are responsible not only for the words they choose but for ensuring that clients, from the vantage point of their experiences and perspectives, understand what those words mean.  That is, the Opinion establishes that lawyers have a duty to be culturally competent in their communication to ensure that meaning is not just conveyed but shared.

Having the responsibility to ensure that clients not only hear what the lawyer says but also know what those words mean—and conversely to ensure that the lawyer knows what the client’s words mean­—is a tall order. Thus, the Opinion offers helpful advice to lawyers on how to approach meaning-making in attorney-client communications when cultural differences exist:

  • Be aware of cultural differences;
  • Understand how they impact the representation;
  • Pay attention to how biases distort understanding;
  • Frame questions in multiple ways that might help the client in familiar contexts;
  • Explain the matter in multiple ways;
  • Give additional time in meetings for questions and clarifications; and
  • Learn more from both research and experts about how to accomplish mutual understanding.

These are all good pieces of advice, particularly for lawyers who are aware that they regularly work with clients who do not share the lawyer’s cultural expectations, understanding, or contexts.  Moreover, training in cultural competency and effective cross-cultural communication is something every lawyer should seek out to better serve clients. 

Not surprisingly, I suppose, I want to extend the Standing Committee’s discussion into the realm of rhetoric and ask what rhetorical skill might have to do with cultural competency.  Thus,  I’m going to suggest that effectively communicating across cultures is not just a type of cultural competency but instead is also a rhetorical competency—an ability in any given situation to understand the needs of the audience and to communicate effectively with them to create shared meaning.

One specific rhetorical competency that can help with the kind of cross-cultural communication that the Opinion suggests is an ethical duty is rhetorical listening.  Rhetorical scholar Krista Ratcliffe explored the concept of rhetorical listening in the context of her studies on composition, gender, and ethnicity. (See her book and her article on the topic.)  Ratcliffe defines rhetorical listening in her book as a “stance of openness that a person may choose to assume in relation to any person, text, or culture.”  It is a form of listening not for “mastery” but for “receptivity.”  For lawyers, the concept of rhetorical listening has application for thinking about how we might “turn one’s ear,” so to speak, toward the communication needs of clients who come from cultural backgrounds different from one’s own and might improve lawyers’ client interview skills.  What follows is my adaptation of Ratcliffe’s theory to lawyer cross-cultural communication as a rhetorical skill.

Often, when lawyers talk to clients, they are engaged in what Ratcliffe describes as listening for mastery.  I might call that kind of listening the lawyer’s typical “interrogative listening”—listening to extract from the client the information lawyers find legally relevant and filtering the client’s story through one’s own cultural and legal understandings.  When lawyers engage in this kind of listening, lawyers tend to give the words meaning through exclusively their own perspectives, perhaps with only a passing thought to whether the meanings drawn from the client’s words are the meanings shared by the client themselves.   

Conversely, when lawyers rhetorically listen to the client, they are not listening to interrogate the client and extract the story; instead they are listening to be receptive to the possibilities of meaning that might come with what they hear and to question how the client might understand the shared information through their own culture and experiences.  In addition, a lawyer engaged in rhetorical listening will be thinking about whether the messages the lawyer delivers to the client mean the same things to the client as they do to the lawyer.  Rhetorical listening, then, is a way lawyers can listen to clients to focus, as Ratcliffe says, simultaneously on “differences and  commonalities” across the potentially different cultures clients and lawyers occupy. In this way, lawyers’ rhetorical listening creates spaces for accomplishing the shared meaning that the Standing Committee’s Opinion demands.

One way to get one’s head around this somewhat nebulous idea of rhetorical listening, Ratcliffe suggests, is to invert the word “understanding” in the context of communication and think of it instead as “standing under” communication. “Standing under” means to let others’ messages “wash over, through, and around us” while acknowledging at the same time our own “particular and fluid standpoints” and how those might relate to each other.  This means that instead of hearing client messages as a set of building blocks that the lawyer sorts and stacks,  client messages are experienced as a waterfall--immersive, experiential, and exploratory.  I think Ratcliffe may be on to something here for lawyers--rarely, I think, do lawyers let client stories “wash over” them; instead, they seek to fit the client’s story into a particular legal framework with little room for negotiated meaning when cultures collide.  Rhetorical listening may be a game-changing addition to lawyers’ cross-cultural listening skills.

If lawyers are sorting and stacking the client’s story, they are likely narrowly focused on filtering that story through their own cultural understandings and meanings.  The client may not share those understandings, and this is the point the Standing Committee is making in its Opinion.  If lawyers ignore this potential cross-cultural gap in meaning-making, they stand to be less competent and effective.  As the Committee points out, “a lawyer must ensure that the client understands the legal significance of [the lawyer’s] communications and that the lawyer understands the client’s communication, bearing in mind the potential differences in cultural and social assumptions that might impact meaning.”

Ratcliffe’s rhetorical listening gives lawyers a space in which to approach this cross-cultural work, even as they begin to become more knowledgeable of cultural differences between themselves and their clients.  Ratcliffe gives lawyers a way to “listen for that which [they] do not intellectually, viscerally, or experientially know.”  As she suggests, lawyers must “first acknowledge[e] the existence” of different cultural understandings, they must listen for “unconscious presences, absences, and unknowns,” and they must “consciously integrat[e] this information into [their] worldviews and decision-making.”

What are your thoughts?

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 kkdavis@law.stetson.edu.

October 7, 2021 in Legal Ethics, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (1)

Saturday, October 2, 2021

A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court

The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court.[1] Three factors arguably explain the reasons underlying the public’s negative perception of the Court.

1.    Chief Justice John Roberts

Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.

Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.

The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.

Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.   

2.    The Shadow Docket

The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.

Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences.  Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).

So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.

3.    The Justices’ Political Views

If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.

Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.

And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.

This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.  

Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras,  seeking to discover new rights that reflect the “heady days of the here and now.”[2] That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.

The Solution

Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.

This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. Specifically, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues divisive, controversial – and politicized – decisions.

Furthermore, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would likely be minimized.

Finally, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. 

Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.

 

[1] See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

[2] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

October 2, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)