Appellate Advocacy Blog

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

Monday, November 29, 2021

Remember to "Talk Nice"

A common refrain in our house is to "talk nice."  My spouse and I try to remind our three year-old to not whine and to use nice words. 

Using our "nice" and "kind" words is also important in appellate brief writing.  One of the common themes that emerged from my work on Winning on Appeal is that judges don't like briefs that are "nasty." So, while you can criticize the reasoning of the lower court or the other party, you need to be "nice" in how you do it. In short, words and tone matter.

Consider this example (common in student briefs):  "The lower court ignored the law when it x, y, z."  By using "ignored," the brief writer connotes an intentional action by the lower court, rather than a mistake. And, while in the rare instance the action might have been intentional, appellate judges are smart and don't need the brief writer to point that part out.  Appellate judges and trial judges are often friends. Many appellate judges started off as trial judges, and trial judges sometimes sit by designation on appellate courts (especially in the federal system). Judges attend conferences together and are generally friendly to each other. And, appellate judges know who on the trial court gets frequently reversed.  

When I am grading student briefs and I see the "ignored" language, I always flag it for my students and suggest "nicer" language.  This "nicer" language can even work in the relevant standard of review: "the lower court erred as a matter of law" or it "abused its discretion" in doing x, y, z.

The call to "talk nice" goes both ways. In the most recent issue of the Journal of Appellate Practice & Process, Judge Therese M. Stewart discusses how judges can better address controversial issues by being more mindful of the words that they use in their opinions. As she writes:

Judges can either disparage judicial colleagues with whom they disagree or focus on legal disagreement while expressing respect for colleagues who disagree and their point of view. The language we use in our opinions (and in public writing and speaking) can project partiality or worse, partisanship and ideology. Our words can, in the alternative, project openness, an ability to listen and a nonpartisan and impartial state of mind.

    Simply put, persuasion by denigration does not turn the temperature down on matters that deeply divide us. Incivility in judicial writing does not advance thoughtful discourse among citizens who have strongly held, competing views. It encourages stridency in public discourse and mutual hostility between disputants.

The meat of Judge Stewart's article discusses the language used in the Supreme Court's LGBTQ cases, but she ends with concrete tips for judges who are writing opinions on controversial issues.  Her advice includes:

  • "Refrain from attacking judicial col-leagues. Don’t ascribe improper motives or agendas to other judges. . . ."
  • "Don’t generalize or characterize per-sons or groups on either side."
  • "Describe facts and parties from a sympathetic or neutral standpoint and fairly describe the arguments on both sides."

These tips, and others, can help brief writers "talk nice" too.

November 29, 2021 | Permalink | Comments (0)

Sunday, November 28, 2021

Guest Post: Drug Courts: A Well-Intended but Misguided Approach to Treating Drug Addiction

This post was written by Daria Brown, a graduating senior at Georgia College and State University and the President of Georgia College's Mock Trial team. Daria will begin her first year of law school in the fall of 2022.

     Addicts don’t belong in prison. And drug courts are not a proper solution. 

     In recent years, drug courts have proliferated in many states as an alternative to incarceration for low-level drug offenders. Ostensibly predicated on a rehabilitative rather than punitive paradigm, drug courts strive to provide low-level drug offenders with treatment in lieu of incarceration. 

     But upon closer examination, drug courts aren’t the solution. In fact, they are part of the problem because they retain a punitive approach to treating drug offenders and perpetuate precisely the type of moral blameworthiness—and lack of empathy—that often plagues those who struggle with addiction, and makes it difficult, if not impossible, for such individuals to lead fully recovered lives. 

     This article proposes a new approach that advocates for a truly rehabilitative, rather than retributive model, and that attempts to replace condemnation with compassion.

     By way of background, as a response to the overwhelming number of arrests for minor drug law violations in the 1980s and 1990s, drug courts were created to serve as an alternative correctional -- and rehabilitative -- approach for defendants charged with low-level drug crimes, such as possession of marijuana. And these courts have experienced some degree of success, as many individuals -- who would have otherwise been incarcerated -- have recovered from their addictions and proceeded to live productive lives. 

     The truth, however, is that these stories are the exception, not the rule. And the inconvenient truth is that drug courts, while well-intended, are fundamentally flawed for several reasons. Most prominent among them is that drug court programs misunderstand the nature of addiction, unjustifiably retain punitive elements that reflect stigmatization of addicted offenders and fail to provide the type of treatment protocols that are essential to maximizing positive outcomes for offenders. Those flaws are detailed below, followed by principled solutions that will enhance the efficacy and fairness with which we treat individuals who struggle with addiction. 

I.    The Problems

    A.    The individuals responsible for implementing and overseeing treatment of addicted offenders have a limited understanding of addiction. 

     Prosecutors and judges are given complete discretion over who is referred to drug court and which treatment is most appropriate for each individual. For example, prosecutors are given the power to “cherry-pick” participants who they believe will be successful in the program, and often intentionally exclude precisely those defendants who need the most help, namely, those with a history of addiction.[1] As such, offenders who are in dire need of treatment often receive no treatment at all and are instead relegated to a prison where they routinely decompensate. 

     This should come as no surprise. After all, why should prosecutors and judges, who have no education and experience in addiction or psychology, have the power to determine which defendants receive treatments, and the authority to set the parameters of that treatment? It is equivalent to permitting a cardiologist to determine whether a patient suffers from bipolar disorder. If drug courts are serious about providing efficacious and meaningful treatment to those offenders who need it, they should not entrust decision-making authority with individuals who know nothing of the problem that drug courts are designed to treat.

    B.    Drug courts strive to rehabilitate yet retain a punitive model that decreases the likelihood of successful treatment.  

     You can’t scare people into recovery. It’s like a parent telling a child that, if they continue to listen to a certain type of music, they will be grounded for six months. That might work in the short term. It utterly fails in the long term. Drug courts suffer from this problem. Put differently, if you are committing to a rehabilitative model, you have to be truly committed to that model. 

     Indeed, drug courts have adopted two intrinsically contradictory models which undermine their efficacy: the disease model (rehabilitative) and the rational actor model (punitive). The disease model recognizes that drug use for addicted individuals is compulsory and not morally blameworthy. Conversely, the rational actor model states that any given decision-maker is a rational person who is able to evaluate positive and negative outcomes to make the most rational decision—and thus would attach moral culpability to drug addiction. 

     Unfortunately, drug court programs embrace these contradictory models and, in so doing, impede treatment efficacy and, ultimately, an offender’s prospects for a full recovery. To be sure, in a drug court treatment program, an individual is given treatment based on the underlying assumption that they have an addiction, but if they fail to comply with all treatment protocols, they are threatened with punishment, including incarceration. 

     These models cannot function together because the rational actor model misunderstands the nature of addiction and the road to a successful recovery. Indeed, recovery is a difficult path, where setbacks and relapses are often common. Failing to understand the turbulent road to recovery forces addicts to attempt recovery under the shadow of shame and condemnation, and when a setback occurs, treatment is withdrawn and punishment, including incarceration, implemented. This is a prescription for failure.

    C.    For the participants who could benefit most from treatment, failure is far too common.

     For individuals who struggle with addiction—and are selected to participate in a drug court program—in most cases, they must plead guilty to their charges as a condition of their referral. And if an individual fails to complete the program, a person may not amend their guilty plea. Therefore, these people lose both the opportunity to plead guilty to a lesser offense and receive support services essential to their recovery. Furthermore, in some instances, a person struggling with addiction may face a longer sentence than they otherwise would have if they hadn’t been referred to drug court in the first instance when considering the days or weeks of incarceration they endured during the program as punishment for relapse or other minor infractions plus their full sentence decided by the judge upon removal from the program. 

     This troubling dynamic begs the question: what is the purpose of drug courts? Do they reflect a principled commitment to treating the issues underlying addiction? Do they focus on maximizing positive outcomes for offenders, many of whom are from marginalized communities—which requires tolerance of and treatment for setbacks, including relapses? Or do they reflect a half-hearted attempt to provide treatment that, upon the first hint of non-compliance, leads to incarceration and cessation of all treatment efforts? In many instances, it is the latter. And that makes drug courts rehabilitative in name only and restorative in theory but not in fact. 

     These are only a few of the major issues involved in drug court programs, but they demonstrate a fundamental need for a more suitable solution to address addiction, remove stigmatization, and provide meaningful rehabilitation. Below are three policy recommendations that would improve the efficacy and fairness and drug treatment in the criminal justice system.

II.    The Solutions   

    A.    Trained psychologists and psychiatrists -- not prosecutors and judges -- should evaluate all criminal defendants who struggle with drug addiction. 

     Many drug users struggle with serious and life-threatening addictions. And many of these people also suffer from mental health issues, such as depression or bipolar disorder, potentially using illegal drugs to self-medicate. For this and other reasons, trained psychologists and psychiatrists should evaluate and recommend the proper course of treatment for all defendants charged with drug crimes. These experts, unlike prosecutors and judges, understand addiction and mental illness, and thus can recommend and implement individualized treatment that will have the highest likelihood of success. In many instances, such treatment will likely include administering medication and providing cognitive behavioral therapy, as both psychiatric and psychological treatment increase substantially the likelihood of recovery.

     Furthermore, rather than being forced to plead guilty to a charged offense, the person should be granted a continuance for their case for a period of time deemed appropriate for treatment based on a psychiatrist’s and psychologist’s recommendations. Additionally, if a person is financially disadvantaged and unable to afford the medication prescribed and treatment recommended, the government should supply aid necessary to cover these costs. After all, if the criminal justice system is truly committed to rehabilitation, then it should put its money where its mouth is—figuratively and literally. 

     Now, if an offender struggling with addiction or mental illness is charged with a violent crime, the offender’s psychiatrist and psychologist should include in their assessment what effect, if any, the underlying disorders may have on the defendant’s culpability. Furthermore, if a defendant pleads or is adjudged guilty, the court should consider these assessments as mitigating factors at the sentencing stage. This will result in truly individualized sentences that reflect moral blameworthiness more accurately and result in less severe sentences more frequently. 

     Finally, this approach would prevent prosecutors—who have no expertise in understanding or treating addiction or mental illness—from cherry-picking which defendants are worthy of treatment, from imposing arbitrary barriers to accessing such treatment, and judges from implementing treatment programs that have minimal, if any, likelihood of success. 

    B.    The stigma and discrimination directed to individuals struggling with addiction and/or mental illness must end now. 

     Individuals who struggle with addiction or mental illness should never be stigmatized or marginalized. These people are forced to carry around society’s label of “otherness,” and that “otherness” leads to being denied admission to universities, rejected from employers, and ostracized by community members. This is wrong.  Giving people a second chance reflects empathy and understanding, which is often lacking from even the most passionate advocates of social justice. 

     Indeed, when jobs and education opportunities are gate-kept from individuals simply because they have a past, it perpetuates the cycle of recidivism and relapse that is so common in cases of substance abuse. Most importantly, it dehumanizes people who have fought valiantly to overcome addiction and adversity and disregards the inherent human dignity that all humans possess. Simply stated, we need to recognize that all humans are flawed and that, ultimately, we all share similar struggles. Treating people with compassion is essential to achieving justice in a meaningful and transformative manner. 

     C.    Implement community-based solutions that place individuals in the best position to achieve permanent recovery. 

     One of the major issues with drug court programs and incarceration is the lack of support upon reentry into society, which often prevents individuals from achieving the level of financial and social stability necessary to avoid reoffending. 

     Community-based solutions can help to facilitate an individual’s transition into society and provide the support necessary to prevent relapse or recidivism. And these solutions can encompass a wide range of possibilities. For example, volunteers in the community may be granted tax breaks if they agree to mentor these individuals and help them adjust to their new life and assist their mentees in signing up for or getting involved in other community-based solutions.

     Other community-based solutions may include granting the recently recovered person a lifetime membership to a community center such as the YMCA and contracting with local businesses to offer employment to individuals after successful completion of treatment. These businesses could receive tax breaks for their cooperation and continued dedication to affording opportunities to individuals who suffered from—and overcame—addiction or mental illness. Such an approach can help individuals to achieve stability and autonomy and to take responsibility for their lives and happiness. It also reflects the belief that giving people an opportunity to start anew is a chance worth taking. 

     Ultimately, current drug court programs, while well-intentioned, are not well-designed. The problem is that addiction and mental illness are largely misunderstood, often mistreated, and unnecessarily maligned. Dispensing with these stereotypes, which result in marginalization and discrimination, is the predicate to implementing meaningful and principled treatment programs. Most importantly, recognizing that people deserve a second chance, that morality has no place in addiction discourse, and that punishment is frequently devoid of purpose, is the first step to enacting reforms that respect human dignity and that reflect empathy for those that the criminal justice system has unjustly relegated to inconvenient enigmas. 

 

[1] See Drug Policy Alliance, Drug Courts Are Not The Answer: Toward A Health-Centered Approach to Drug Use, (March 2011), available at: https://drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf 

November 28, 2021 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Thursday, November 25, 2021

An Appellate Practitioner Gives Thanks

To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:

  • Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
  • Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
  • The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
  • American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
  • Dashes, colons, and semi-colons. They are way undervalued and underutilized.
  • Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
  • The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
  • The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
  • The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
  • Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
  • People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
  • Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).

Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!

November 25, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (2)

Tuesday, November 23, 2021

A Limited Time For Term Limits

    President Biden’s Supreme Court Commission recently offered a public preview of its recommendations for Supreme Court reform, with their final report due next month. The Commission’s early work showed deep division over adding new Justices to the Court, but wider support for judicial term limits—even if the process of enacting such limits remains unclear. The same might be said of Americans more broadly. Recent polling shows little public appetite for appointing additional Justices to the Court, but a more evenly divided opinion on term limits for the Justices.

    The Commission’s alignment with public opinion may be welcome news for the Biden administration, even though it was likely unintentional. The Commission is largely comprised of legal scholars with long histories of analyzing and critiquing the Court’s work. The group is at least somewhat ideologically diverse, including members who would apply a more originalist interpretive method to constitutional issues, though such views are in the minority. But few of the Commission’s members have long experience in public policy or legislation. And many have proposed similar term limits in their past academic work, suggesting that the alignment with public opinion is accidental rather than intentional.

    The Commission’s preview suggests a path to Supreme Court reform that does not threaten the judiciary’s institutional integrity as much as a court packing plan would. Court packing is a purely partisan game that can be played by members of both parties. Once the floodgates to court packing are open, there is little to stop additional efforts by future administrations of any ideological stripe to alter the makeup of the Court. Even if the public’s opinion of the Court has rapidly soured in recent years, a step as drastic as court packing seems likely to further undermine the Court’s legitimacy. Adding members may even impede the Court’s ability to hear cases in the short term as a shifting (and growing) cast of Justices is added to the bench by administration after administration.

    Term limits hold more promise as a subtler method to moderate the Court’s ideological swings without all-out partisan warfare. Once phased in, term limits would allow subsequent administrations a relatively even and predictable number of appointments to the highest court. Term limits have the potential to lower the partisan temperature over the appointments process, simply by precluding political parties or retiring Justices from gaming the appointment process to ensure that new members have a specific ideological view. Much must still be worked out, including how to stagger the terms to allow seats to open regularly during every administration; how to phase the limits in with the existing members of the Court; how to handle unexpected changes in the Court’s membership due to illness or death; and whether changes can be made legislatively or only through constitutional amendment. But term limits at least offer the possibility of a more moderate shift in the way the Court does business.

    Term limits might also provide the Biden administration a path to cathartic action on an important topic for many Democratic constituents that is less drastic and divisive in the eyes of the broader public. The administration and the Commission may hope that term limits are perceived as an important and necessary action to rebalance the Court’s ideological skew, but a slow-building one that will only reduce ideological polarization over the course of generations. Would such a plan be enough to mollify the Democratic base? Much might depend upon the outcome of particularly charged cases this term, including the challenge to Roe v. Wade that the Court will hear next month in Dobbs v. Jackson Women’s Health Organization. That outcome may ignite the push for more drastic reform as an immediate response. The alignment between public opinion and the Commission’s views might thus be short-lived. If the administration hopes to act on less-dramatic reforms like term limits, the best time may be now.

November 23, 2021 in Appellate Court Reform, Appellate Justice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

A (Cleaned Up) Dust Up

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

Callahan v. United Network for Organ Sharing presented the question of whether documents attached to a brief were judicial records and thus, open to the public.[1] The court dropped this footnote:

A “cleaned up” parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that “[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’ ” But the text UNOS “cleaned up” comes from an explanatory “cf.” parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at 1168. Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that “public access is presumed for materials that invoke judicial resolution of the merits.” Id. (quotations omitted).[2]

And here is the referenced portion of the appellant’s brief:

At the same time, this Court explained that “[t]he mere filing of a document does not transform it into a judicial record.” Id. at 1167. Unlike “materials that invoke judicial resolution of the merits,” the public interest is not furthered by documents that are “irrelevant to the underlying issues,” like “the overwhelming majority of documents disclosed during discovery.” Id. at 1168 (quoting AbbVie Products, 713 F.3d at 63) (cleaned up).[3]

Finally, here is the referenced passage of Advanced Local Media:

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he overwhelming majority of documents disclosed during discovery are likely irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by the court or other judicial officer,’” but public access is presumed for “materials that invoke ‘judicial resolution of the merits’” (citations omitted)).[4]

So, this is an example where (cleaned up) was misused and misused in a way that the court found misleading. But, the potential for misuse is not unique to, and thus not attributable to, (cleaned up). Other ways of noting alterations or omissions in quoted material, such as brackets or ellipses, may be misused.

Whatever approach we take to quoting authorities it is our responsibility as advocates to ensure that we are scrupulously accurate in doing so.

 

[1] No. 20-13932, 2021 WL 5351863 (11th Cir., Nov. 17, 2021).

[2] Id. at *4.

[3] Randall CALLAHAN, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant., 2020 WL 7641873 (C.A.11), 34.

[4] Commr., Alabama Dept. of Corrections v. Adv. Loc. Media, LLC, 918 F.3d 1161, 1168 (11th Cir. 2019).

November 23, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, November 21, 2021

Answer the Question

            At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers.

            Graves made his remarks during a discussion of “Top Tips for Top-Notch Oral Argument Answers.” The judge said that counsel will often be so focused on the message crafted in preparation for the argument that they fail to pay sufficient attention to the question or plow over it in order to advance their point. However, it is entirely possible that the framework that the advocate seeks to advance may be secondary to satisfying members of the court on something that struck them as critically important. Satisfying the judge by answering the question and either relating it to the pre-planned argument or pivoting to another topic deemed important to address ought to be counsel’s focus.

            Reading the briefs, Graves said, will likely raise some questions for the judge, including issues that may have arisen in other cases that had come before the judge. Perhaps counsel had not considered the issues raised by the question before – or the judge may be mistaken about its relevance to this case. In either event, the question should be answered.

            In dealing with a mistaken question, panelist Joshua B. Carpenter of Federal Defenders of Western North Carolina suggested a humble approach. He recalled a time when a judge insisted that Carpenter’s point could not be correct given the record evidence about mailboxes. Carpenter responded by gently suggesting that he could not recall mailboxes figuring in the record. The judge, however, continued to insist that the mailbox evidence definitively refuted Carpenter’s claim – until the judge received a note from a law clerk, informing him that the mailbox case was being argued the following week.

            During oral argument earlier this month before the U.S. Supreme Court in New York St. Rifle & Pistol Ass’n, Inc. v. Bruen, a case I covered during my Summit panel on the current Supreme Court term, Deputy Solicitor General Brian Fletcher parried the questions he was asked with impressive aplomb, providing a number of examples of how to answer questions while turning to your own point. The case involved New York’s restrictions on gun licenses, one that most observers believe will be declared unconstitutional and that Fletcher was defending. The case appeared to turn on a combination of the Second Amendment’s text, history, and traditions in the States.

            Early on, Justice Clarence Thomas asked Fletcher how to decide which States’ history and traditions should inform the Court on the proper approach to gun rights, adding “you focus a lot on western states, but the west is different.” Fletcher immediately agreed that the west is different, but indicated that the Court should be “skeptical about a tradition that’s only  reflected in one state, indicating that that was a flaw in his opponent’s argument which relied on “some of the cases exclusively from the antebellum south.” His cases, he added, spanned the country.

            Chief Justice John Roberts questioned Fletcher about why a license to bear arms is justifiable when other Bill of Rights guarantees were not subject to licensure. Fletcher agreed with the initial proposition that most rights do not permit licensing schemes, but then recognized that his opponent, in answer to a question from Justice Brett Kavanaugh, said that the challengers had no quarrel with licensing regimes for guns generally. That stance, Fletcher explained, illustrates that the “Second Amendment has a distinct history and tradition and that the way to be faithful . . . to that history and tradition [is] not to draw analogies to other rights with -- with their own histories and traditions.”

            What makes these answers admirable is that they answered the question but made a point that was consistent with the arguments made in the briefs and even incorporated opponents’ statements made during the oral argument. It took questions from justices likely vote against Fletcher’s position and used them to make a point consistent with the concern voiced by the questioner but turned to the advocate’s advantage. While the New York gun law may not survive this constitutional challenge, Fletcher’s performance provided a classic example of what answering the question should mean.

November 21, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Saturday, November 20, 2021

A Great Summary of Argument Can Make Your Brief

Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.”  Fed. R. App. P. 28(a)(7).  As a judicial clerk, I saw brief after brief where the authors ignored this rule.  Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.

Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case.   The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case.   Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument.  Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read. 

Recently, I read a fantastic Summary of Argument which really proves these points.  In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs.  As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health OrgSee https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.

You can find the briefs in Dobbs at SCOTUSblog here:  https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/.  But how do you choose which briefs to read?  I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs.  In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me.  One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.  

The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning:  “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.”  See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf.  Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.”  Id. at 2.  Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.”  Id. at 2-3.

Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue.  The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.

In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader.  The next time you draft a Summary of Argument, you might want to follow this wonderful example.

November 20, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, November 19, 2021

Appellate Advocacy Blog Weekly Roundup Friday, November 19, 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

  • The Supreme Court announced that the first opinion of the term will be delivered Monday, November 22. Unlike before the pandemic closure, the Court will not take the bench and will release opinions online beginning at 10:00 a.m. The Court does not announce which opinions will be issued on which day.  For more, see Bloomberg.

  • The Presidential Commission on SCOTUS met today (find link to materials and agenda here). On the agenda were items including term limits and the size of the Court. The materials suggest some support for term limits but recognize a “profound disagreement” about altering the size of the Court.  For more, see The New York Times and the ABA Journal.

  • The Washington florist who was found to have violated a state discrimination law after refusing to make flower arrangements for same-sex couples has dropped her Supreme Court appeal. The parties filed a joint stipulation for dismissal, having reached a settlement in the matter.  For more, see CNN and The Hill.

Appellate Court Opinions and News

  • The circuit court lottery system for multidistrict litigation became a hot topic this week when the over 34 challenges to the administration’s workplace vaccine rules were consolidated and assigned to the Sixth Circuit by lottery. The cases challenge the Occupational Safety and Health Administration rules that apply to businesses with 100 or more workers and require those workers to be vaccinated by January 4 or face mask requirements and weekly tests. The consolidation means that the Fifth Circuit, which recently stayed the rules, will cede control of its case to the Sixth Circuit. For more, see the Judicial Panel on Multidistrict Litigation order and a sampling of the many reports: The New York Times, The Wall Street Journal, The Associated Press, Reuters, and NPR.

  • The Ninth Circuit has unsealed recordings of the landmark trial that struck California’s ban on same-sex marriage.  The court ruled that the opposition has not shown that the public release of the recordings would cause harm. For more, see the order and reports from Reuters and Courthouse News.

 

November 19, 2021 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, November 17, 2021

Shaking those nerves

My appellate advocacy students have been doing their oral arguments in class. Many of them have not done moot court, so this is their first experience standing at the lectern. Almost all of them start out with some nerves and then settle down after getting a few questions. When it's over, they ask how to not be so nervous. I think that this is a common enough question from students and young lawyers to merit a post, and I welcome other ideas from practitioners out there.

  1. Practice, practice, practice. Mooting a case before the real argument is the best way to prepare. Grab a couple of experienced attorneys in your office (and one outside your office if you can), have them read the briefs, and then get their thoughts. For young attorneys, I think it helps to do it both informally (sitting around a table and discussing what the court's concerns are likely to be, what your theme should be, etc.) and formally (having the attorneys role play as judges and actually ask the questions). If you do this a few times, you're not likely to get a question that hasn't come up before, meaning you will have a ready answer for each one. This breeds confidence and naturally drives down the nerves.
  2. Observation. One of my colleagues started out doing appeals in the Illinois Attorney General's Office, and he said that his boss there would not let anyone argue in the Illinois Supreme Court without having done the 3 1/2 hour drive from Chicago to Springfield to watch arguments in-person. I think this was a sound practice. Before you argue, go to the court and watch someone else do it. Many courts are still doing remote arguments and posting them online, so it's pretty easy these days to look up the recordings and observe. If your court is in person, then go there and sit in the gallery. When I did this as a law student, I learned both from watching great advocates and not-so-great ones. The great ones helped me shape my style for the better; the not-so-great ones showed me that while I might not be perfect, I could at least do as well or better than they did. An odd sort of confidence, but it does help combat nervousness.
  3.  Visualization. Picture yourself in the court, giving the argument as you practice. The more you can picture the place where you'll be and the faces of those you'll be talking with, the less of a shock it will be when you are actually standing there.
  4. Medical help. In extreme cases, I've seen attorneys--after consulting with their doctors--take beta-blockers to combat the adrenaline a bit.

Any other suggestions out there?

November 17, 2021 | Permalink | Comments (7)

Sunday, November 14, 2021

Why Confidence in the United States Supreme Court is Declining

In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court.[1] The public’s declining confidence in the Court, and the resulting threat to the Court’s institutional legitimacy, is attributable in substantial part to several factors.

1.    The Court’s decisions are perceived as political and outcome-driven.

In several landmark decisions involving divisive social issues, the Court has disregarded or manipulated the Constitution’s text to achieve outcomes that arguably reflect the justices’ policy predilections. In Griswold v. Connecticut, for example, the Court held that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property without due process of law,” encompasses a substantive – and unenumerated – right to privacy.[2] In so holding, the Court stated that, although a literal interpretation of the Due Process Clause did not support creating this right,  the Constitution nonetheless contained invisible “penumbras,” that are “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.”[3] It was within these penumbras that the Court discovered a right to privacy.

In other words, the Court singlehandedly created an unenumerated right to privacy out of thin air.

To make matters worse, in Roe v. Wade, the Court held that the unenumerated right to privacy encompassed a right to terminate a pregnancy.[4] Regardless of one’s view on abortion,  the Court’s decision, as in Griswold, entirely disregarded the text of the Due Process Clause and instead discovered this right in the invisible penumbras that Griswold created. The result reflected a troubling reality: the Court, consisting of nine unelected and life-tenured judges, was giving itself the unchecked authority to invent whatever rights it subjectively deemed necessary to ensure liberty for all citizens. These and other decisions were rightly perceived as fundamentally undemocratic and inconsistent with the judiciary’s obligation to say what the law is, not what it should be.

Additionally, in Planned Parenthood v. Casey, the Court, in a 5-4 decision, reaffirmed Roe, although the Court acknowledged again that the Due Process Clause’s text  did not support recognizing a right to abortion.[5] Undeterred by the text, however, the Court supported its decision by emphasizing that “[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."[6] Apart from being based on no reasonable interpretation of the Due Process Clause, the Court’s decision – and this passage – indicated that the Court would in the future unapologetically create whatever unenumerated rights it deemed essential to liberty – and impose that judgment on all fifty states.

The Court’s decisions were intellectually dishonest, constitutionally indefensible, and outcome-driven. This is a recipe for undermining public confidence in the Court.

Furthermore, some of the Court’s 5-4 decisions often conveniently align with the justices’ political views. For example, in its abortion and affirmative action jurisprudence, the ‘liberal’ justices often, if not always, vote to invalidate abortion restrictions and uphold affirmative action policies, while the ‘conservative’ justices predictably disagree. The impression, of course, is that politics, not law, underlies the Court’s decisions.

2.    The Court gets involved in disputes that the democratic process should resolve.

The Constitution says nothing about abortion.

It says nothing about same-sex marriage.

It says nothing about whether money constitutes speech.

It says nothing about whether imposing the death penalty for child rape is cruel and unusual.

Yet, the Court has repeatedly injected itself into these disputes – and determined for all fifty states – what the Constitution means and requires. In so doing, the Court’s decisions, which in the above areas are almost always decided by a 5-4 vote, undermine democratic choice.

3.    The Court fails to defer to the democratic process when the Constitution is ambiguous.

The Constitution’s text is often broadly worded and subject to different interpretations. In these circumstances, the Court should defer to the democratic and political process, not intervene and impose its interpretation on an entire country.

For example, in Kennedy v. Louisiana, the Court considered whether a Louisiana law, which authorized the death penalty for the rape of a child, violated the Eighth Amendment’s Cruel and Unusual Punishment Clause.[7] Based on the Eighth Amendment’s text and original purpose, reasonable jurists could reach different conclusions on this question. Put differently, the Eighth Amendment provided no definitive answer regarding the law’s constitutionality. Given this fact, the Court should have deferred to Louisiana’s democratic process and refused to grant certiorari. Instead, the Court intervened and, in a controversial 5-4 decision, invalidated the law.

Likewise, in Clinton v. New York, the Court addressed whether the Line Item Veto Act, which both houses of Congress passed, and which allowed the President to amend or repeal portions of duly-enacted laws (primarily to reduce excessive spending), violated the Constitution’s Presentment Clause.[8] The Presentment Clause was broadly worded and, thus, subject to different interpretations concerning the line-item veto’s constitutionality. Nonetheless, the Court intervened and, in a 6-3 decision, invalidated the Act.

Why?

Who is to say that the Court’s interpretation of a broadly-worded provision is any more correct than that of federal or state legislatures? Indeed, as Justice Stephen Breyer argued in his dissent, the Act did “not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”[9]

4.    The justices’ reasoning in many cases is inconsistent and suggests that politics, not law, drive their decisions.

Inconsistent and uneven application of doctrine and precedent is certain to undermine public confidence in the Court. Yet, that is precisely what some of the Court’s decisions reflect.

For example, in National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts provided the fifth vote to uphold the Affordable Care Act.[10]  In his opinion, Chief Justice Roberts held that the Affordable Care Act’s individual mandate could reasonably be construed as a tax and was thus justified under Congress’s taxing powers.[11] Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.[12]

Fair enough. That approach is reasonable – if applied consistently.

Unfortunately, however, that is not the case. In Shelby County v. Holder, for example, Roberts joined a five-member majority to invalidate portions of the Voting Rights Act that had been re-authorized by a unanimous 99-0 vote in the Senate.[13]

Now, there may certainly be justifiable reasons that could explain Roberts’ different approach in both cases. But those reasons, particularly when not apparent from the Court’s decisions, do little, if anything, to affect the perception that politics, not law, motivates the Court’s decisions. And perception is reality.

Additionally, the Court’s toxic, on-again, off-again relationship with stare decisis raises similar concerns. For example, in June Medical Services v. Russo, Chief Justice Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges. [14] In so doing, Roberts emphasized that his decision rested on stare decisis principles, as the Court in Whole Woman’s Health v. Hellerstadt had recently invalidated a nearly identical law in Texas. [15]

Yet, Roberts has not been shy about disregarding stare decisis when he disagrees with a prior decision. For example, in Janus v. AFSCME, Roberts voted with the majority to overrule Abood v. Detroit Bd. of Ed., and hold that labor unions could not collect fees from non-union members.[16] Of course, there may be an understandable reason for Roberts’ inconsistent application of stare decisis. But to the public, it appears that stare decisis is a doctrine of convenience rather than conviction.

***

The public’s confidence in the Court – and the Court’s institutional legitimacy – depends on whether its decisions reflect an honest interpretation of the law and fidelity to constitutional and statutory text. The Court’s recent jurisprudence suggests that other factors are influencing its decisions, including a desire to reach outcomes that the Court believes will maintain its legitimacy. But that concern is precisely what leads the Court to make decisions based on political calculations, the effect of which is to undermine the very legitimacy the Court seeks to preserve. The path to restoring public confidence in the Court is through intellectual honesty, reasonable interpretations of the Constitution, and consistent application of legal doctrines.

 

 

[1] See Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (Sept. 23, 2001), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

[2] 381 U.S. 479 (1965).

[3] Id. (emphasis added) (brackets added).

[4] 410 U.S. 113 (1973).

[5]  505 U.S. 833 (1992).

[6] See id.

[7] 554 U.S. 407 (2008).

[8] 524 U.S. 417 (1998).

[9] Id.

[10] 567 U.S. 519 (2012).

[11] See id.

[12] See id.

[13] 570 U.S. 529 (2013).

[14] 591 U.S.           , 2020 WL 3492640 (2020).

[15] 579 U.S. 582 (2016).

[16] 138 S. Ct. 2448 (2018).

November 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Saturday, November 13, 2021

Legal Tech Lingo

Forget learning how to code or picking up the nuances of machine learning. Few (if any) legal folks need to learn all that technical stuff.

Instead, you will realize more benefits from the technology revolution by learning foundational concepts that will empower you to make smarter high-level tech decisions (like whether to get a new tool or invest more in the ones you currently use) and work with tech experts (who will be much better at creating and using the complex stuff). 

To get any of those benefits, one of the first steps is making sure you know enough of the lingo that talking about tech is easy. This week, let's look at some of the most common tech lingo legal folks need to succeed. 

Variables

This refers to a setting in apps or other software that will vary depending on what information the user enters. For example, you might want to display one message if a client enters one year and another message if a client enters a different year. Perhaps the filing deadline is different depending on what sort of claim the client wants to pursue.

Logic Trees (or Workflow)

This refers to a series of actions that you have configured to be carried out in your app. The tree part refers to those pesky variables. Because you will want the app to do different things (and carry out a different series of tasks) depending on what information the user enters. 

Trigger

A trigger refers to some event or information that will cause another action to occur. So we might want to receive a notification whenever a certain person sends us an email. That person sending us the email would be the trigger that we would configure to cause another event (a notification) to happen.

Tech Stack/Stack

A stack is a sequence of tools or apps connected together (often using Zapier or native integrations). A typical stack will often include a front-end (for example, a website or some other way to display your app to your users), and a back-end (the tool that carries out your app's operations).  

UI

This term refers to the user interface: What you see on the screen when you use an app or piece of software. UI is extremely important in legal, because UI that is hard to understand or figure out means that attorneys and professionals can't easily use the tool on a daily basis. 

AI/Machine Learning

Artificial Intelligence and Machine Learning are related concepts. AI refers to really advanced processing that mimics the complexity of human thought (but often goes even farther). Machine learning is the process by which AI tools can learn from large data sets to get smarter and extract insights. 

Analytics

This term refers to using a tool to gather insights from sets of data. For example, extracting insights from client data, billing data, or internal data so that you can do your legal work better. 

Document Automation

These tools help you automate portions of the document creation process. Often they use simple forms to collect information that needs to be inserted into a document (like a form or contract) and then the tool inserts that information into the document so that you don't have to. 

Integrations

Integrating means that two tools (software, apps, and so on) can somehow share information with each other or otherwise work together. For example, if your email is integrated with your document management software, the two tools can share information so that you don't have to manually enter information from one into the other. 

We will explore some more foundational tech lingo in future editions! 

November 13, 2021 | Permalink | Comments (0)

Friday, November 12, 2021

Appellate Advocacy Blog Weekly Roundup Friday, November 12

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.

 

SCOTUS Opinions and News:
 
 

 

 
State Appellate Court Opinions and News:
 
  • On Tuesday, the Oklahoma Supreme Court reversed a ruling against Johnson & Johnson, finding that the trial judge incorrectly interpreted public nuisance laws, overturning a $465 million verdict issued in 2019 in a case asserting that J&J's marketing, sale, and distribution of opioids constituted a public nuisance.
 

November 12, 2021 | Permalink | Comments (0)

Sunday, November 7, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, November 7, 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

  • The new format for oral argument adopted as the Supreme Court resumed in-person argument was introduced in part to address a study showing that female justices are interrupted by both male justices and advocates. The 2017 study by Tonja Jacobi and Dylan Schweers, researchers at Northwestern Pritzker School of Law, showed that female justices were interrupted at disproportionate rates. Justice Sotomayor, appearing at a recent event, stated that the study had an “enormous impact” on how the Supreme Court conducts oral argument.  See reports from The Guardian, CNN, and The Atlantic podcast.

  • The Court heard oral argument this week on two high-interest issues: a Texas abortion ban and a New York gun control law.

    - The Texas abortion case does not address the constitutionality of the ban itself but instead considers the procedural restrictions preventing federal challenges by abortion doctors and the Justice Department. The law is written so that it gives the state no direct role in enforcing the ban, instead authorizing private lawsuits in state courts against doctors or clinic owners who violate its provisions. The audio and transcripts of oral argument are available here: Whole Woman’s Health v. Jackson, No. 21-463, transcript and audio;  United States v. Texas, No. 21-588, transcript and audio. Some of the many reports on the case and oral argument include, The New York Times, The Washington Times, The Associated Press, Reuters, and NPR.

    - The New York gun control case considers the constitutionality of a New York law that imposes limits on carrying guns in public. The law requires citizens to show “proper cause” to get a license to carry a handgun in public. The audio and transcripts of oral argument are available here: New York State Rifle & Pistol Assn. v. Bruen, No. 20-843, transcript and audio. See reports on the argument and the case from The Los Angeles Times, USA Today, and The New York Times.

Appellate Court Opinions and News

  • The Fifth Circuit has suspended the Biden administration’s vaccine requirement for private companies. The Occupational Safety and Health Administration rule applies to businesses with 100 or more workers and requires those works be vaccinated by January 4 or face mask requirements and weekly tests. See the order and reports from NPR and The Wall Street Journal.

  • A federal court has ruled that North Carolina at Chapel Hill may use race as a factor in admissions. The court ruled that the university’s consideration of race was narrowly tailored and that the university considered race-neutral alternatives, which meets the 2003 standard set by Grutter v. Bollinger. The ruling stated that, “[w]hile no student can or should be admitted to this university, or any other, based solely on race, because race is so interwoven in every aspect of the lived experience of minority students, to ignore it, reduce its importance and measure it only by statistical models. . . , misses important context . . ..” The challengers vow to appeal the ruling. See the order and reports from USA Today and The New York Times.

Appellate Practice

An interesting thread on Twitter asks, "Have you read a law review article recently that you thought was particularly great and deserving of a wider readership?" Take a peek for what looks like a great list!

November 7, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

A Provocative Suggestion to Name the Supreme Court Building After a Single Justice

                Sarah Isgur set off a fun, even if inconsequential, debate among the Supreme Court cognoscenti when she wrote an essay in Politico ("Name the Supreme Court After a Legendary Justice") that the building that houses the highest court in the land be named after the first Justice John Marshall Harlan. Isgur, a former Trump Justice Department spokesperson and host of a legal podcast, Advisory Opinions for the Dispatch, argued that the Supreme Court building and the court it houses “need a story to help Americans make sense of them.”

             In suggesting Harlan’s name, she recognized that he opposed the Emancipation Proclamation and the Thirteenth Amendment, but suggested that his transformation into what she called the “greatest defender of racial equality in court history . . . shows how an intense and unfaltering faith in the Constitution can chart a path to enlightenment.”

             Unlike the otherwise unnamed White House and Capitol, she contends that the building’s “symbolic anonymity” no longer serves as a “source of strength” as it once did. Naming the building, she writes, would help overcome a loss of “shared sense” about “what the Supreme Court stands for and what it should represent.”

             The debate Isgur set off is fun, in part, because it is provocative. Should the citadel of justice for the nation bear any individual’s name? And, if so, is Harlan more appropriate than Chief Justice John Marshall or some other celebrated figure from American legal history? And, finally, would naming the building really help people understand the role of the Court or the rule of law more generally? The debate is also likely inconsequential because there really is no prospect that the Court’s building would be renamed to honor an individual.

             My own view is that no renaming should take place. We take pride in being a nation of laws, not of men. Part of the problem in the public’s recent decline in faith in the Supreme Court comes precisely because people, often with some justification, think the justices maintain partisan allegiances to those who put them there and render decisions based on political leanings, rather than the application of some immutable law. (Harlan, incidentally, was very much a partisan). Naming the building after an individual will not change those perceptions or the public’s reactions to rulings that they find politically unpalatable or legally questionable. Nor is Harlan’s story, as interesting as it is, the story of either the Supreme Court or American law. Instead, I suggest that the Court’s decisions embody a wealth of stories worthy of being told that provide real insight into its operation.

             Despite my opposition to naming the building after an individual, the suggestion provided an opportunity for more people to think about Harlan. There is no doubt he cut a colorful figure on the Court, where Justice Oliver Wendell Holmes once described Harlan as “the last of the tobacco-spittin’ judges.” Harlan acquired the nickname, the “Great Dissenter,” for writing oppositions, often alone, to decisions that the court of history has since similarly condemned. He is also widely celebrated by admirers of diverse political disposition and legal philosophy. Isgur notes that Justice Thurgood Marshall said he took inspiration from Harlan.

             That inspiration may be encapsulated in Harlan’s dissent in Plessy v. Ferguson, which Marshall successfully argued should be overturned in Brown v. Board of Education. Harlan’s dissent stated:

in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens.

             Let us remember John Marshall Harlan, but continue to call the Supreme Court’s building the “Supreme Court.”

November 7, 2021 in United States Supreme Court | Permalink | Comments (0)

Monday, November 1, 2021

"Duty of Fairness and Healing"

November marks Native American Heritage Month.  I had the chance to celebrate Native Heritage Month a bit early when the University of Arizona hosted its first Tribal Leaders Summit. I had the opportunity to attend a lunchtime address by Principal Chief David Hill of the Muscogee (Creek) Nation.  Principal Chief Hill and his Ambassador Jonodev Chaudhuri spoke about the Supreme Court's landmark ruling in McGirt, which recognized the existence of the Creek reservation in Oklahoma. As a member of the Muscogee (Creek) Nation, I was honored to meet Principal Chief Hill.  (I have tried to post a picture, but the blog is working against me....).

Many of the Native Nations in our country have well established justice systems.  Over the past months I have been blogging about the most recent issue of the Journal of Appellate Practice and Process, which focuses on what lawyers and judges can do to help ameliorate the division in our country. As Judge Nicholson and I were putting together the issue, I really wanted to include a piece from a Tribal court judge. I was thrilled when Chief Justice JoAnn Jayne from the Navajo Nation's Supreme Court agreed to write a piece. Chief Justice Jayne was the perfect pick for a number of reasons. First, she has served on several different Tribal courts and as a state court judge. Second, she has a diverse practice background that includes service in the Montana Legislature.  Third, according to the Navajo Courts webpage, "[t]he Navajo Nation court system is the largest Indian court system in the United States and has been called the 'flagship' of American tribal courts."

Chief Justice Jayne's article highlights several key points of  Diné (Navajo) justice, including Kinship, Harmony/Balance, and Leadership. For example, lawyers are viewed as leaders.  According to Chief Justice Jayne,

Lawyers and jurists take a solemn oath (Naat’áanii’ ‘ádee hadidziih) incorporating these tenets: to obey and defend the Navajo Nation and its laws (Diné bi na’hat’á doo ‘bibee nahaz’áanii bee sézįįdóó, bik’ eh ánísht’éé doo, dóó bich’ąąh sézįį dooleeł). In addition to defending laws, they swear that they, as leaders, will administer to the Diné with honor and respect. Finally, the affirmation of making and living a good life moves toward complete-ness. (Díí hózhǫǫgo bee ‘iiná ‘adeeshłiił doo hózhǫǫgo shí ‘iiná siláa dooleeł.)

Further, the concept of Kinship and Harmony guides how courts resolve disputes. As she explains, "Through 'talking things out' under the principle of K’é, 'courts assist in bringing litigants into Hózhǫ . . . courts bring people in dispute into harmony.' Through consideration of different approaches, parties are brought 'back into harmony' which is consistent with Navajo beliefs and principles." 

Navajo culture teaches individuals to respect one another. The Navajo Supreme Court has said, "'Words are . . . not to be used to offend or intimidate.' 'Words are sacred and never frivolous in Navajo thinking.'”

Respect. Solidarity. Compassion. A duty to community. These are the principles that guide Navajo justice and culture. These are also principles that we can learn from.

November 1, 2021 | Permalink | Comments (0)