Appellate Advocacy Blog

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

Sunday, December 26, 2021

Prediction: Dobbs v. Jackson Women’s Health

On December 1, 2021, the United States Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health, where the Court will decide the constitutionality of a law in Mississippi that bans all abortions after fifteen weeks of pregnancy.

A.    Background

By way of background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s Due Process Clause, which prevents states from depriving citizens of “life, liberty, or property … without due process of law,” encompassed the right of a woman to terminate a pregnancy.[1] In so doing, the Court adopted a trimester framework: during the first trimester, women had an unfettered right to terminate a pregnancy.[2]  During the second trimester, states could regulate abortion access, provided that such regulations were reasonable and narrowly tailored to protect a woman’s health. In the third trimester, states were permitted to ban all abortions, except those necessary to protect the mother’s health.[3]

Nearly two decades later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed the central holding in Roe but rejected the trimester approach.[4] In so doing, the Court adopted a viability framework, stating that, before viability (i.e., the state at which a fetus can survive outside the womb, which occurs at approximately twenty-four weeks of pregnancy), states could not place an undue burden on a woman’s right to have an abortion. After viability, states could regulate, and perhaps ban abortions except where necessary to protect the health and life of the mother.[5]

Not surprisingly, the Court’s decisions in Roe and Planned Parenthood were heavily criticized by both conservative and liberal scholars. Indeed, scholars noted that the Constitution’s text – particularly the Fourteenth Amendment – could not be interpreted to include a right to abortion. As Harvard Law professor Lawrence Tribe stated, “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."[6] Likewise, late Justice Ruther Bader Ginsburg characterized Roe as “heavy-handed judicial intervention,” a matter of constitutional interpretation.[7] And Edward Lazarus, a former clerk to Justice Harry Blackmun, stated that “even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible."[8]

Regardless, in Planned Parenthood, the Court reaffirmed Roe’s central holding, and for nearly fifty years, women have had the fundamental right to access abortion services, particularly during the first trimester. Thus, principles of stare decisis, and concerns for the Court’s institutional legitimacy, counsel in favor of protecting this right even though Roe is indefensible as a matter of constitutional law. After all, if in Dobbs the Court overturns Roe, it would only be because a majority of current justices are more conservative than their predecessors. Thus, overturning Roe would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. In other words, 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 a recipe for destroying the Court’s legitimacy.

B.    Dobbs v. Jackson Women’s Health

So how is the Court likely to rule in Dobbs? Below is a summary of the justices’ positions during oral argument, and a prediction of how the Court will ultimately rule.

Justices Elena Kagan and Sonya Sotomayor. Justices Kagan and Sotomayor appeared concerned that a decision overturning Roe would severely undermine the Court’s institutional legitimacy. It’s fair to say that Kagan and Sotomayor will vote to invalidate the Mississippi law.

Justices Clarence Thomas and Samuel Alito. Justices Thomas and Alito will almost certainly vote to overturn Roe and return the abortion debate to the states. Thomas, for example, questioned whether Roe was based on the right to privacy, liberty, or autonomy; his questions suggested that he believes (rightfully so) that there is no textual basis to support the right to abortion. Justice Alito appeared to disagree that stare decisis principles supporting upholding Roe and suggested that Roe could be overturned if the Court believed it was wrongly decided.

Justice Brett Kavanaugh. Justice Kavanaugh appeared poised to overturn Roe or limit abortion rights. For example, Kavanaugh suggested that overturning Roe and returning the abortion debate to the states would simply return the Court to a position of neutrality on the abortion issue. Given the Court’s decisions in Roe and Planned Parenthood, however, coupled with the fact that the Court’s more conservative membership, not any new constitutional or scientific developments, would arguably underlie a decision to overturn Roe, it can hardly be argued that such a decision would return the Court to a position of neutrality. Instead, it would be perceived – rightfully so – as a blatantly partisan decision. It is difficult to believe that Justice Kavanaugh is not aware of this fact. Additionally, Kavanaugh did not appear receptive to the stare decisis argument, noting that the Court had, in many instances, overturned precedent, most notably in Brown v. Board of Education (overturning Plessy v. Ferguson). What Kavanaugh failed to acknowledge, however, was that in most of these decisions, the Court’s decisions overturning precedent expanded, rather than limited, constitutional protections. Ultimately, Kavanaugh’s questions revealed a willingness to overturn Roe, although it is certainly possible that he will adopt a middle-ground approach that marginally upholds Roe but limits the time within which women may access abortion services.

Chief Justice John Roberts. Not surprisingly, Chief Justice Roberts, who is concerned primarily with preserving the Court’s institutional legitimacy rather than developing a coherent jurisprudence, sought to find a middle ground that would limit, but not eliminate, abortion rights. From his questions, it appears that Roberts supports upholding the Mississippi law yet also reaffirming (albeit limiting) the abortion right. Specifically, Roberts may reject the viability framework and hold that women have the right to access abortion services within a reasonable time after becoming pregnant.

Justice Amy Coney Barrett. Justice Barrett’s questions were quite surprising, to say the least. Most significantly, Barrett implicitly distinguished between the burdens of pregnancy and parenthood and, in so doing, minimized the burden of pregnancy. Specifically, Justice Barrett suggested that, because states have “safe haven laws” allowing women to surrender newborn babies to a medical facility without fear of criminal prosecution, a law outlawing abortion would not materially burden women’s ability to participate equally in society. This question was quite troubling because it reflected ignorance of the physical, emotional, and psychological burdens that a pregnancy engenders, including the deleterious consequences that carrying a pregnancy to term can have on a woman’s personal and professional life. Based on this question alone, it appears that Justice Barrett will uphold Mississippi’s law and, in so doing likely to either vote to overturn Roe and return the abortion issue to the states or vote to limit the time within which women may access abortions.

Justice Stephen Breyer. Justice Breyer’s questions left no doubt that he will vote to invalidate Mississippi’s law and uphold Roe and Planned Parenthood. During the oral argument, Breyer emphasized that Roe was a watershed decision and that principles of stare decisis thus required special and compelling justifications to overturn Roe, which could not be satisfied simply because the Court believed Roe was wrongly decided.

Justice Neil Gorsuch. Justice Gorsuch’s questions suggested that he was deeply skeptical of Roe and the viability framework, but that he was searching for a middle ground that would uphold yet limit the right to abortion.

Of course, the justices’ questions at oral argument are not necessarily indicative of how they might rule. In Dobbs, however, the justices’ questions appeared to reflect fairly entrenched positions regarding the right to abortion and the validity of the Court’s precedents.

Prediction: A majority (five or six votes) will vote to uphold the central holding of Roe. However, the Court will reject the viability framework and hold that women have a right to access abortion services within a reasonable time after becoming pregnant. During this time, the Court will hold that states may not unduly burden a woman’s right to access abortion services.

 

[1] 410 U.S. 113 (1973).

[2] See id.

[3] See id.

[4] 505 U.S. 833 (1992).

[5] See id.

[6] Carrie Severino, Dobbs: The Court’s Historic Moment (Part 2) (Nov. 26, 2021), available at: Dobbs: The Court’s Historic Moment (Part 2) | National Review

[7] Id.

[8] Timothy P. Carney, The Pervading Dishonest of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner

December 26, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Monday, December 20, 2021

Some Holiday Reading

I have been a bit remiss on blogging about Volume 21, Issue 2 of the Journal of Appellate Practice & Process.  Honestly, it has been a busy semester.  But, this issue is important, so I thought I would highlight a few articles in case folks have extra time to read during the holidays. As just a reminder, Volume 21, Issue 2 addresses the thorny issue of what judges and lawyers can do ameliorate the divisions in our country. I have previously blogged on the prefaces and on articles by Chief Justice JoAnn B. Jayne, Lance B. Wickman, Erwin Chemerinsky, and Therese M. Stewart.

Today I am going to blog on two additional articles.  The first is by Prof. Michael S. Greve. Prof. Greve tackles the question of "what judges might be able to do as judges" to "ameliorat[e] the bitter contentions and partisan polarization that afflict our politics." Prof. Greve argues that judges "should strive to remain an institutional haven from a turbulent, divisive politics." They can do this, he explains, by adopting a more minimalist role--by focusing on a dispute resolution model over a law declaration model. Prof. Greve gives a few examples of where the Court can start this transition, including the difficult question of standing.  As Prof. Greve explains, 

Dispute resolution will sharply circumscribe the universe of plaintiffs who may invoke the power of federal courts, the nature of their claims, and the nature and the scope of the available remedies. The claims must be claims of right; they must be the plaintiffs’, not some third parties’; and the remedies must be limited to the plaintiffs and their particularized claims.

Prof. Greve's article is especially timely as we unpack the report from President Biden's Supreme Court Commission. 

The second article that I want to highlight was co-authored by Prof. Thomas C. Berg and Prof. Alan Brownstein.  The unique approach of the article is explained in the first paragraph:

This essay is a collaborative effort to engage in a dialogue on church‒state issues that are often hotly debated in our society. Each of us has strongly held positions on the disputes we discuss. Our purpose here, however, is not to present our own views as forcefully as we can. Instead, our goal is to move away from the bitter polarization and demonization that characterizes so much of the arguments about law and religion today. We are searching for ways to discuss and resolve difficult church‒state issues that may reduce acrimony and divisions within our society, foster bridge building among divergent communities, identify common ground, and pro-vide opportunities for compromise.

What better way to find solutions than to bring people together to reasonably discuss the issues.  And reasonably discuss is exactly what Prof. Berg and Prof. Brownstein do. Together in a point/counterpoint format they address some of the thorniest First Amendment issues, including public funding for religious institutions and religious exemptions to neutral laws. In the process they do find areas of agreement, and areas where they will not agree.  Prof. Brownstein also shares a fascinating personal story about prayer in public school (see footnote 89). But, as they admonish, in addressing conflicts on religious liberties issues, "[e]ach side will have to recognize that its own claims will ultimately be stronger and more credible if it acknowledges and makes room for reciprocal claims by the other side." I have certainly found that true in practice.

We hope that our readers have a safe and relaxing holiday season. 

 

December 20, 2021 | Permalink | Comments (0)

Sunday, December 19, 2021

What Do You Do When a Superior Court Misses a Conflicting Precedent in a Decision that Affects Your Case?

            Assume as you conduct your legal research that you come up with a decision that says exactly what you are hoping for and that the precedent, though rarely cited, remains good law. As you write, confident that the holding puts you in a strong position to prevail, the very court you are writing for comes out with a decision that states that the court has never endorsed the very proposition your newly discovered precedent establishes. You scour the new opinion to see how they distinguished the case you found, because, even upon a re-reading, it plainly conflicts with the court’s new holding. You find it is absent from the incompatible opinion – and went uncited in the briefs the court relied upon. How do you respectfully tell the court it is wrong?

            I thought about those circumstances when I read the majority opinion in Whole Women’s Health v. Jackson,[1] the case concerning the new “Texas Heartbeat Act,” which authorizes bounties for private litigants who sue those who perform or assist in abortions. In the decision, Justice Gorsuch wrote, “[t]his Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.”[2]

            The statement made me stop as I read. I realized that the key word to prevent a conflict might be “unqualified.” Still, the thrust of the statement seemed at odds with an older precedent that I have relied upon in the past and recently invoked in a brief. In England v. Louisiana State Bd. of Med. Examiners,[3] the Court wrote that “[t]here are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.” England, then, stands for the proposition that federal rights can be vindicated in federal court, and not be limited to state-court determinations, if federal jurisdictional requirements are satisfied.

            Jackson plainly focused on standing as an obstacle to subject-matter jurisdiction, at least as to some defendants. For that reason, Jackson and England can be reconciled. However, in my hypothetical version of these events, what if the Supreme Court rejected federal jurisdiction because it decided that state court disposition of the case should be sufficient and relied on the absence of a decision like England to reach that conclusion when further research would have shown there was existing precedent?

            An advocate in those circumstances will have several options to consider. First, you may conclude that a state-court decision may indeed be adequate or even preferable. State courts have authority to determine federal questions and are not bound by federal decisions by courts other than the Supreme Court.[4] Still, any federal decisions that are contrary to your position may still have persuasive value or produce some deference in state court where the federal decisions are “numerous and consistent.”[5]

            Another option is to seek to harmonize the two decisions by finding a way to argue that the new decision represented an exceptional situation, an outlier, that can coexist with or be distinguished from the general principle established by your earlier precedent.

            Another option is to argue that the older decision is good law, that the newer decision did not take it into account, and that the court should retain the older precedent. In my hypothetical version of what Jackson could have said, England not only provides an answer to the assumption made in “alternative Jackson” and thereby casts doubt on its reasoning for failing to address existing precedent as though it did not exist. Such an argument would need to point out that other doctrines depend on allowing vindication of federal rights in federal courts, so that more than one rarely cited precedent is at stake. If the court meets in panels, en banc reconsideration may be necessary.

            The bottom line, then, is that an advocate needs to explore options carefully, but still may be able to use that dusty but useful precedent that others forgot existed.

 

[1] No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021).

[2] Id. at *10.

[3] 375 U.S. 411, 415 (1964).

[4] Johnson v. Williams, 568 U.S. 289, 305 (2013). See also, e.g., U.S., ex rel. U.S. Att'ys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136, 146 (Ky. 2014).

[5] Etcheverry v. Tri–Ag Service, Inc., 993 P.2d 366, 368 (Cal. 2000).

December 19, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, December 18, 2021

Appellate Advocacy Blog Weekly Roundup Friday, December 18, 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.

We wish you a festive and safe holiday! 

US Supreme Court Opinions and News

  • The Supreme Court refused two emergency requests from healthcare workers seeking to block New York’s vaccine mandate for healthcare workers. The mandate allows exemptions for medical objection but does not allow exemptions for religious objection. This ruling is in keeping with the Court’s rulings allowing vaccine mandates in Indiana, Massachusetts, and Maine. See reports from The New York Times, CNN, and The Washington Post.

  • The DOJ asked the Supreme Court to allow a nationwide vaccine mandate for healthcare workers. Lower courts have blocked the mandate from going into effect in about half the states. See reports from Politico and CNN.

Appellate Court Opinions and News

  • A Sixth Circuit ruling has reinstated OSHA’s rule requiring businesses with over 100 employees to mandate that workers be vaccinated by January 4 or face mask requirements and weekly tests. The ruling overturned last month’s Fifth Circuit ruling that had blocked the OSHA rule. (See our past coverage.) The case was reassigned to the Sixth Circuit when the many similar challenges to the rule were consolidated and assigned through the lottery system for multidistrict litigation. See decision and reports in The New York Times and CNBC.

    The court also denied en banc review. See report in The National Law Review.

     

 

December 18, 2021 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, December 16, 2021

Overcoming imposter syndrome

When I was coming out of law school 14 1/2 years ago, I was suffering from a mild form of imposter syndrome. Like many aspiring lawyers, I had spent a long time in school and had become very skilled at it. What was I going to do when what I did really mattered? When it potentially affected someone's property, their liberty, or even their life? My mistakes up until then didn't really affect anyone else but myself. The thought that I could mess up professionally and mess up someone's life permanently was very daunting.

What to do? I found a few things initially comforting. First, watching how the law worked in the wild. I talked a little about this in my last post--watching practicing attorneys made me realize that many of them weren't perfect, and that I could at least match them. Second, family support. After my first year, I was home for the summer, working in my hometown. I got some discouraging news about a lost set of opportunities, and felt like my whole professional plan had come apart. I didn't know what to do. My dad saw I was upset and came over to talk to me. He said that even if I had gotten everything I wanted up to that point--the perfect school, the perfect grades, the perfect opportunity--there would still have come a time when I would fail at something. He knew that I admired Abraham Lincoln a great deal, and said that he guessed the reason that I admired him was not that he never failed at anything, but what he did in the face of failures, obstacles, and discouragements. He told me he was proud of me, that I could get past it, and that things would work out. He was right. Third and relatedly,I realized during my third year of law school that fear of mistakes/failure was a miserable and impractical motivation. I had used it for many years, but didn't realize how it affected me. It sapped all the joy out of any accomplishment, rendering it a mere avoidance of catastrophe rather than a triumph. And having the sword of Damocles over one's head may encourage performance, but it does not make performance enjoyable or as good as it could be. I decided let that motivation go and found another--trying to create legal solutions that were not only functional, but had some beauty, elegance, and style.

These insights notwithstanding, I still dreaded making a mistake when I went out into practice. I worked as a criminal appellate law clerk for two years in law school, and when I started my first job as a prosecutor, I knew that my attorney friends in criminal appeals would likely see my cases from time to time. I dreaded looking or sounding like an idiot in a transcript, and tried my best to make everything I said in court meaningful and articulate. That's a fine aspiration, but it's not very practical on weekly calendars with hundreds of cases and dozens of attorneys. After a few months of constantly being in court, I relaxed a bit, realizing that someone else's hindsight view of what I was doing was bound to be different than what was going on in the moment. It was liberating and made the practice much more enjoyable.

I also realized that in the right situations, you are brought along gradually. As a baby prosecutor, they don't hand you murder cases to take care of alone. They stick you in justice/traffic court to do misdemeanor DUIs, thefts, and traffic tickets. There, your mistakes are less likely to impact anyone seriously, but you can learn the ropes while having some leeway. Likewise, in private practice, good mentors will bring you along as you are able, having safety nets of review.

Along with my imposter syndrome, I also wanted to please everyone--especially my bosses and the judges I appeared in front of. Sometimes those things were in tension with each other and in tension with what I believed was the right thing. I remember one sentencing in front of a judge who I admired, but was quite stern. I recommended a sentence for the defendant that was lower than he thought appropriate, and he let me know of his disappointment (even as he followed my recommendation). When I went back to the office, I was unexpectedly (to me) upset. I vented to one of my colleagues--"If he thinks he knows better how to do my job, he can take off that robe and try it--until then, I'm going to do what I see fit!" It was surprisingly liberating. Not that you shouldn't care about your reputation--you should--but that if you hold yourself prisoner to others' expectations all the time, you'll never really develop into your own attorney and it may cost you some bit of your conscience.

When I got into appeals, I again had some residual dread of mistakes. As I was getting ready for my first big case in the Utah Supreme Court, a looming thought during my oral argument prep was that I didn't want to misstate any of the facts (the case had a really big record). At argument after I sat down, defense counsel immediately got up and said that I had said that something was not in the record, but it was. I was horrified, and ran back to the office afterward to see if she was right. When I realized that she was, I quickly composed a letter apologizing for my mistake, saying it wasn't intentional and I was sorry. And you know what? My career went on just fine. I imagine the court appreciated my owning up to a mistake and moving on. Of course, I still never want to make mistakes and work very hard to prevent them. But when they happen, I just do my best to correct them and avoid them in the future. 

So if you're worried about getting out there and not knowing what you're doing, realize that that happens to all of us from time to time. Find somewhere with good mentors who will bring you along, do what you feel is right (within appropriate constraints), take encouragement from family and friends, don't live in fear, own up to your mistakes, and don't base your actions solely on pleasing others. And one day you'll wake up and realize that you can do it. For me, that feeling took about five months. I was sitting in my office looking over files for the week, and I stopped myself--here I am, I thought, a practicing attorney. I'm doing it! Then I went back to the files. So many files.

   

December 16, 2021 in Appellate Advocacy | Permalink | Comments (0)

Friday, December 10, 2021

Appellate Advocacy Blog Weekly Roundup Friday, December 10

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:
 
  • On Monday, the White House commission examining potential changes to the U.S. Supreme Court released its draft final report.  The report is more than 280 pages long, and includes arguments in favor of and against a variety of suggested changes ranging from imposing term limits to expanding the size of the court.  Continued livestreaming of arguments was the only change that appeared to garner widespread support in the report.
  • On Monday, the Court released a press release indicating that it will continue to hear oral arguments in person in January and February, while continuing to limit access to the courtroom to the Justices, essential Court personnel, counsel, and journalists with full-time press credentials issued by the Court.  The Court will also continue live audio feeds.
  • United States v. Taylor:  
    • On Tuesday, the Court heard arguments in a case in which two men planned to steal money, failed to successfully complete the robbery, but fatally shot the victim.  One of the men was convicted under a plea agreement, and now challenges his conviction under a federal statute making it a federal crime to use a gun in connection with a "crime of violence."  There is no dispute that the man used a gun in connection with an attempted robbery -- the dispute is whether attempted robbery meets the definition of "crime of violence."  The 4th Circuit Court of Appeals sided with defendant in ruling that it did not.
  • Shinn v. Ramirez
    • On Wednesday, the Court heard arguments in a case involving two men sentenced to death in Arizona.  The issue in the case concerns whether the men should be allowed to present evidence in federal court that their trial lawyers were ineffective.  Arizona argues that a federal law bars the federal court from considering evidence supporting an ineffective assistance claim unless that evidence was first presented in state court, even though it is undisputed that Supreme Court precedent allows ineffective assistance claims to be brought in federal court.
  • Carson v. Makin:  
    • On Wednesday, the Court heard arguments in a case involving the question of whether the state of Maine could exclude insitutions that promote religion from a state program that covers the cost of private education in areas without public schools.  The Justices seemed inclined to rule in favor of the litigants, indicating belief that they were not seeking special treatment but were merely seeking equal treatment and signaling that excluding institutions that promote religion might be discrimination on the basis of religious beliefs.
  • Whole Women's Health v. Jackson:  
    • On Friday, the Court issued an 8-1 decision holding that Texas abortion providers can challenge the Texas abortion law (SB8) by suing some state licensing officials in federal court.  By a 5-4 vote, however, the Court held that suit cannot go forward against state court clerks.  The Court did not strike down the law or prevent its enforcement while such suits go forward.  Justice Thomas was the sole vote to deny all relief and allow the law to be enforcement without allowing the pre-enforcement legal challenges to go forward.
Federal Appellate Court Opinions and News:
 
  • Trump v. Thompson:  
    • On Thursday, the DC Circuit Court of Appeals issued a ruling in which the court held, among other things, that White House records of former President Trump can be released in the January 6 probe, pending Supreme Court review.
Appellate Jobs:
 
  • The Harris County, Texas, District Attorney's Office is hiring an Appellate Prosecutor, to prepare appellate briefs, motions, petitions for discretionary review, and oral arguments in the appellate courts.
  • The Office of the Ohio Public Defender is hiring an Assistant Public Defender to join the Appeals and Post-Conviction Section of its Legal Department.

December 10, 2021 | Permalink | Comments (0)

Sunday, December 5, 2021

Can an Oral Advocate Learn Anything from Last Week’s Supreme Court Hearing on Abortion?

             In a New York Times column, Linda Greenhouse, who covered the Supreme Court for that venerable newspaper for many years, took off her gloves to call out some of the justices for the questions they posed during oral argument in Dobbs v. Jackson Women’s Health Org.[1] The justices’ queries suggested not only that Mississippi’s ban on abortion after 15 weeks the challenge but could, as many predicted, also overturn Roe v. Wade[2] rather than simply further whittle it down. She called many of the questions as “gaslighting” because they struck her as disingenuous for what struck her as pretextually innocent varnish that belied the justices’ hardened positions.

            Two of the exchanges Greenhouse discussed have implications for oral advocacy that bear further examination. Greenhouse gave her “gaslighting prize” to Justice Kavanaugh for asking what would be wrong if the Court took a position of neutrality on abortion, so that there could be “different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

            Solicitor General Elizabeth Prelogar answered by noting fundamental rights are not left up to state legislatures to decide whether to honor them or not.” The question and answer suggest that the two participants in that conversation were operating from very different assumptions. Prelogar’s answer is grounded in a belief that Roe declared a fundamental constitutional right that the courts must uphold, while Justice Kavanaugh’s question presupposes that there is no basis for Prelogar’s position – or the foundations upon which Roe was built.

            The Supreme Court’s new argument format meant that that answer had to do because it was not Justice Barrett’s turn to ask questions and she moved the conversation back to another topic. Still, what’s an advocate to do when a judge asks a question that telegraphs rejection of the fundamental premise of your argument? In some arguments, a Plan B might be possible, arguing a different and potentially more acceptable alternative legal theory. A Plan B, however, did not seem possible in Dobbs.

            Another alternative is to abandon hope that the questioner could be the linchpin to victory and concentrate on others on the panel who might vote your way. However, with Justice Kavanaugh occupying the Court’s center and often considered the weather vane for a majority view, that hope seems remote. A further tactic is to go down with guns blazing, understanding that you are unlikely to prevail, but making a full-throated defense of the foundation for your argument that the judge has put into doubt. The danger of such an approach, regardless of how self-satisfying it might be, is that it often leads to a comprehensive defeat. In the end, however, questions of that sort, particularly when similar skepticism is expressed by others, likely foretell defeat.

            Interestingly, Greenhouse made the connection between Justice Kavanaugh’s questions in Dobbs about adopting a position of neutrality so States could regulate abortion as the wish to the very different attitude he and other justices seemed to display in the recent argument in New York State Rifle & Pistol Ass’n, Inc. v. Bruen.[3] There, New York advocated, on the basis of history and tradition, that states and localities had long adopted quite different approaches to gun regulations and licensing that should be allowed to continue without offending the Second Amendment. The challengers to the state licensing law argued that the Constitution did not allow as much leeway as New York had taken in the 1916 law under review.

Linkage between guns and abortion may have first been expressed by Judge J. Harvey Wilkinson III of the Fourth Circuit in a 2009 Virginia Law Review article.[4] He found that both foundational decisions, Roe and District of Columbia v. Heller, criticized and celebrated differently based on ideological preferences, suffered from the same flaws: a failure to utilize textualism to achieve a result, disregard for the complexities that the decision would engender so that much litigation would be spawned, indifference to legislative judgments, and a lack of concern for federalism. Key to his approach is a rejection of the constitutional foundations of both decisions.

In the end, the answer in both cases, Dobbs and Bruen, turn on the justices’ acceptance or rejection of the underlying rights at issue – and even the most brilliant oral argument is unlikely to transform ingrained perspectives.

A second exchange also teaches a fundamental lesson on oral argument. It exemplifies a rule that judges can do what they want, but advocates are more limited. Chief Justice Roberts asked whether viability was briefed and argued in Roe as a line of demarcation, referring to a statement in Justice Blackmun’s papers about a draft of the Roe opinion that he was struggling to produce at the time. In it, he referred to the trimester approach the opinion took as arbitrary and a form of dicta but said that so would tying the right to quickening or viability.

Chief Justice Roberts referred to the Blackmun papers as an “unfortunate source,” but nonetheless posed the question. As Greenhouse points out, the paper the chief justice cited was superseded after conversations with Justices Marshall and Powell. Justice Blackmun’s new memo after called viability justified on “logical and biological” grounds that few could argue with.

            The oral advocacy question is whether counsel, in a case where a judge did not raise the question, could fruitfully raise private papers – or remarks from the bench, for that matter – to make that type of point the chief justice did, when it is not reflected in the opinion that was issued. It is one thing to recall a point made by one of the judges during that oral argument. However, it would seem inappropriate for an advocate to use an “unfortunate source” the way the chief justice did.

 

[1] 19-1392.

[2] 410 U.S. 113 (1973).

[3] No. 20-843.

[4] Judge J. Harvey Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009).

December 5, 2021 in Appellate Advocacy, Appellate Practice, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)