Appellate Advocacy Blog

Appellate Advocacy Blog Weekly Roundup Friday, April 29, 2022

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• Justice Stephen Breyer sat for his final argument this week in Oklahoma v. Castro-Huerta. At the end of the argument, Chief Justice Roberts offered a tribute, saying “[f]or 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly.” Justice Breyer’s seat will be filled by the first Black woman to serve on the Supreme Court, Judge Ketanji Brown Jackson.  Hear the audio clip and see reports from AP News, CNN, and USA Today.

• Oklahoma v. Castro-Huerta, the last argument of the term, considers whether Oklahoma has authority to prosecute crimes committed on reservation land when those crimes are committed by non-Native Americans. The case comes after a decision in McGirt v. Oklahoma that ruled that state and local law enforcement could not prosecute crimes by Native Americans committed on reservation land. The petitioner, who is not a Native American, was prosecuted by state authorities and appealed his conviction arguing that McGirt should apply to any crime committed on reservation land. Read the transcript or listen to argument and see reports from The Wall Street Journal, New York Times, and The Washington Times.

• The Court also heard argument in a school speech case, Kennedy v. Bremerton School District, which considers the limits of prayer at school. The case weighs the rights to free speech and free exercise of religion against Constitutional precedent that prohibits schools’ pressuring students to participate in religion. The petitioner, a high school coach, was fired after praying at the 50-yard-line after each game. The coach claims that his prayer, which students and others often joined, is his individual exercise of religion. The school, however, argues that (1) the prayer is coercive and (2) the prayer can be perceived as being endorsed by the school.  Read the transcript or listen to argument and see reports from The New York Times, USA Today, and NPR. The New York Times’ The Daily covered the case on Wednesday.

• The Supreme Court ruled that businesses that receive federal money cannot be sued for discrimination if the only harm is emotional distress. The majority decision rested on principles of contract. The court recognized that the discrimination claims against such businesses were rooted in the agreement that, in exchange for federal funds, the businesses would not discriminate and could be held accountable if discrimination occurred. Thus, because breach of contract does not include recovery for emotional harm, the Court reasoned, claims against these businesses should likewise not include recovery for emotional harm. Justice Roberts wrote, “[a]fter all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table.” See the decision and reports from The Washington Post and The New York Times.

Appellate Court Opinions and News

The Fourth Circuit allowed a suit against the judiciary by a former federal public defender who argued that her constitutional rights were violated when a Federal Public Defender's Office in North Carolina was deliberately indifferent to her complaints of sexual harassment. Because the Fourth Circuit was a defendant, three judges from the Sixth, Eighth, and Tenth circuits heard the case.  The decision confirms that the Fifth Amendment "secures a federal judiciary employee's right to be free from sexual harassment in the workplace." See the ruling and reports from The Washington Post and Reuters.

Some Thoughts as Justice Breyer Leaves the Court

Justice Stephen Breyer heard his last arguments yesterday as a member of the Supreme Court of the United States. With no disrespect to the remaining members of the Court or its soon-to-be newest justice, his retirement undoubtedly will leave the Court a less interesting place.

While the replacement of one left-of-center justice with another will not change the ideological balance on the Court, we will have to wait to see if Justice Ketanji Brown Jackson moves the needle a little farther to the left than did Breyer, one of the justices closest to the ideological center. And by all accounts one stellar intellect is being replaced with another. Many things won't change so much where it really matters. From a jurisprudential standpoint, time will tell. I'll leave the serious academic summations of Justice Breyer's career and his impact on the law to others. My only aim here is to say this: the Court just won't be the same without him.

The retirement of Justice Breyer is likely to continue one trend at the Court: it will become more boring. I don't mean that in the legal sense--after all, there are plenty of important and interesting cases at the Court--but really in a much more basic sense.

Some may find being more boring a good thing for the Court. After all, there were critics of the celebrities that justices like Antonin Scalia and Ruth Bader Ginsburg had become. But no one can argue that they weren't the rock stars of the Court. After their deaths and now with the departure of Justice Breyer, exactly who are the rock stars of the Court? Justice Sotomayor perhaps as she is noted for asking tough questions of the advocates? Justice Kagan, recognized by many as the most interesting writer of the Court? Notwithstanding their abilities and regardless of how one views their judicial philosophies, it is hard to say at this point that the last three appointments have spiced anything up on the Court. To the extent that the justices should just be umpires calling balls and strikes, as Chief Justice Roberts famously said during his confirmation hearing, anonymity generally has been the hallmark of a good umpire (or any sports official). And according to recent polls, most Americans don't know who the justices are.

For those of us who pay close attention to the Court, though, Justice Breyer will go down in history as one of the most memorable. It sure was fun to have him on the Court, and he will be missed.

The Court is losing a justice with some unique qualities not likely to be matched any time soon:

1. Hypothetical questions. -- No one asked more hypotheticals, better hypotheticals, more complex hypotheticals, or more confusing hypotheticals than he did. It just won't be the same for advocates or observers without them.
2. Wit, sometimes intentional and sometimes not. -- When Justice Scalia was on the Court, Justice Breyer was right behind him in terms of garnering the most laughter during oral arguments. Of course, some of the laughter came in response to the hypotheticals mentioned above. My personal favorite was when he discussed someone having a "pet oyster." But then there also was the time he mentioned his underwear. And even recently he mentioned radioactive muskrats.
3. He loved the Federal Sentencing Commission and the Federal Sentencing Guidelines. -- Justice Breyer was a defender of the Federal Sentencing Guidelines. Indeed, he was considered by some to be one of the "parents" of the guidelines, having served on the first Sentencing Commission that created them. He liked to discuss the Commission and mentioned it in an oral argument as recently as January.

In his comments at the close of the last argument heard by Justice Breyer, the Chief Justice put it best: "For twenty-eight years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly." As the Chief Justice's voice trembled with emotion, he spoke for all of us in saying good-bye to a justice unlike any other.

May the record reflect...

On appeal, the record is your world. If it's not in there, it didn't happen in the appellate universe--even if it did happen in real life. Be sure you know when you start whose responsibility it is to ensure an adequate record on appeal (in federal court, both parties and the trial court have record-related duties; in some state courts, the appellant alone bears the burden). Knowing this can make the difference between winning and losing, because a presumption of regularity is going to attach--basically, an assumption that all went according to the law absent a record to the contrary--and fall on the party bearing the burden of ensuring record adequacy.

Often times, things happen in court that for some reason or other do not make it into the record--a sidebar conference is too muddled for the reporter or recording equipment to pick up; the exhibits are returned to the parties for some reason; a chambers conference doesn't get recorded or summarized on the record; etc. An unsophisticated practitioner will refer to those things in his brief without ensuring they are part of the record. Be aware that there are rules to help complete the record in situations like this (like Federal Rule of Appellate Procedure 10(c)-(e) or comparable state rules, see, e.g., Utah Rule of Appellate Procedure 11(h)). Some states also allow supplementing the record with facts that never happened in court, but bear on a discrete appellate issue like an ineffective assistance of counsel claim. But however your jurisdiction allows for it, be sure to follow the procedures rather than (as I've seen from time to time) attaching things as addenda to a brief and expecting that the court will consider them.

Appealing TROs: Some “Practical” Advice

    When 1Ls receive assignments in persuasive legal writing and appellate advocacy, their professors will surely remind them that the appellate process typically begins after the trial court has issued a final and appealable order, from which the litigants can file a notice of appeal. Interlocutory appeals are possible, the professor will note, but only on rare occasions that fall outside the typical advocacy curriculum.

    But perhaps the exceptions to the final judgment rule are worthy of greater exploration, especially in the case of temporary restraining orders that have dramatic, fast-moving effects in the real world. TROs are necessarily ephemeral; they are designed to prevent significant damage to a party for a brief time period, during which the court can hear more detailed arguments about the case and reach a reasoned determination about whether to issue a temporary or permanent injunction. At times, though, TROs can have a more meaningful impact. And sometimes, TROs can become longer-term placeholders for a court than the title seems to suggest. In those situations, parties may need an avenue to rapid appellate review of a court’s issuance of a TRO to avoid severe damages to a party’s interests.

    In her forthcoming article Appealable TROs, Professor Bernadette Genetin catalogues the history of appealable TROs and argues for a limited number of interlocutory appeals from TROs under 28 U.S.C. § 1292(a)(1). Providing the example of the Ninth Circuit’s finding that it had jurisdiction to review a district court’s TRO barring enforcement of the so-called “travel ban” issued by the Trump Administration in 2017, Genetin explains the damage that might be done by bright-line rules banning early appeals from TROs. A TRO should be appealable, Genetin suggests, when it has the practical effect of an injunction; threatens serious or irreparable injury; and effective review is available only through immediate appeal. Though such appeals should remain unusual, they may be necessary where circumstances are extraordinary; where there is a need to prevent serious loss of a high order of magnitude on a time-sensitive basis; where the issue falls within the appellate court’s particular and recognized expertise; or where a TRO exhibits many important characteristics of a preliminary injunction. For Genetin, the “practical effect” analysis gives appellate courts an important avenue to evaluate proposed action by the executive branch that the executive deems immediately necessary, yet others suggest violates the structural norms of our government or constitutional prerogatives of coordinate branches. Appellate courts may rightly lower the threshold showing of irreparable harm typically needed to support interlocutory review of restraining orders in order to address the exigencies of the situation and its importance to our governmental structure. As the Ninth Circuit’s decision in Washington v. Trump, 847 F.2d 1151, 1158 (9th Cir. 2017) illustrates, the decision to permit such interlocutory appeals can have an important effect both in determining the limits of executive action and in meaningfully enforcing those limits when necessary.

    Interlocutory appeals of TROs are, and should be, rare. But as Professor Genetin notes, bright-line rules prohibiting such interlocutory appeals fail to account for the flexibility needed to address rapidly-evolving issues of governmental structure in our present political environment. Courts should not hesitate to implement such limited flexibility in the years to come.

Why Judicial Deference Matters

Public confidence in the United States Supreme Court is declining because many citizens believe that politics, not law, motivate the Court’s decisions.[1] That belief is not likely to improve, particularly as the Court prepares to issue decisions on abortion, the right to bear arms, and religious liberty, which may be decided by a single vote.

Part of the problem, aside from the fact that, on divisive social issues, the justices’ decisions so conveniently align with their policy predilections, is that the Court often gets involved when it should defer to the legislative and executive branches. Indeed, judicial deference can – and should – play a key role in preserving the Court’s legitimacy and in demonstrating that the Court is not a political institution.

A.    Cases where judicial deference was appropriate

Below are several examples of where the Court should have deferred to federal and state legislatures.

        1.    Clinton v. New York

In Clinton v. New York, Congress passed, and President George H. W. Bush signed, the Line Item Veto Act, which authorized the president to veto specific spending provisions in duly-enacted legislation to reduce unnecessary government spending.[2] The Act also gave Congress the authority to override by a majority vote the president’s line-item vetoes.

The question before the Court was whether the Act violated the Constitution’s Presentment Clause, which states in part as follows:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.[3]

Based on this broad language, was the Line Item Veto Act unconstitutional? Well, it depends. Reasonable jurists can certainly study the historical record and the founders’ original understanding of the Presentment Clause and arrive at different conclusions. Given this fact, why did the Court get involved and, by a 6-3 vote, invalidate a law that both the legislative and executive branches agreed would reduce wasteful government spending and promote fiscal responsibility?[4]

            2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court considered whether a Louisiana law authorizing the death penalty for raping a child under the age of twelve violated the Eighth Amendment, which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[5]  Is it “cruel and unusual” to execute a person for raping a child under the age of twelve? Again, it depends – not on the Constitution’s text, but on a jurist’s subjective values. As with the Presentment Clause, you can certainly study the historical record and the founders’ original understanding of “cruel and unusual” and arrive at different conclusions. As such, why are nine unelected and life-tenured judges in a better position to make this determination than legislators in Louisiana? They aren’t – and that is the point.

But that didn’t stop the Court from intervening and, in a 5-4 decision, invalidating the law. Writing for the majority, Justice Anthony Kennedy stated that the determination of whether a punishment is “cruel and unusual” depended on “evolving standards of decency that mark the progress of a maturing society,” and on the Court’s “reasoned judgment.”[6] In other words, the Court can reach whatever decisions it wants, based on whatever its members feel at the time.

            3.    Citizens United v. FEC

In Citizens United v. FEC, the Court invalidated legislation that restricted corporations, labor unions, and other associations – within sixty days of a general election and thirty days of a primary – from making an “electioneering communication.”[7] The legislation’s purpose was to prohibit corporations and other entities from using money to influence federal elections (and primaries) and thereby gain unfair access to elected officials.[8]

The question before the Court was whether this legislation violated the First Amendment, which provides in relevant part that Congress “shall make no law … abridging the freedom of speech.”[9] Based on this broad language, was the legislation unconstitutional? The answer certainly doesn’t depend on the Constitution’s text.

Indeed, equally persuasive arguments can be made for and against the legislation’s constitutionality. As such, why did the Court get involved and, in a divisive, 5-4 decision, invalidate legislation that had the salutary objective of reducing undue influence in the electoral process? Put differently, why should the Court intervene to invalidate duly enacted legislation when the Constitution does not compel such a result, and where, as in Citizens United, doing so undermines equal participation in the democratic process?

To make matters worse, in reaching this decision, the Court overturned its decision only twenty-three years earlier in Austin v. Michigan Chamber of Commerce, where the Court held that Congress may restrict corporate expenditures to reduce the distorting effects of corporate wealth on the marketplace of ideas.[10] The Court’s decision to overrule Austin suggested that the Constitution’s meaning depends on the ideological and policy predilections of its current members and that constitutional meaning reflects those predilections.

The Court should have minded its own business and never intervened.

            4.    Shelby County v. Holder

In Shelby County v. Holder – another 5-4 decision – the Court invalidated two provisions of the Voting Rights Act even though: (1) the Senate had voted unanimously to re-authorize these provisions; (2) neither the Constitution’s text (in Shelby, the Tenth, Fourteenth, and Fifteenth Amendments) nor the Court’s “congruence and proportionality” test arguably compelled this result.[11] Once again, why did the Court get involved?

            5.    National Federation of Independent Investors v. Sebelius – Chief Justice John Roberts Gets It Right (albeit in a disingenuous                            way)

In National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts embraced judicial deference when voting to uphold the Affordable Care Act’s constitutionality.[12] Let’s be honest: Chief Justice Roberts’ reliance on Congress’s taxing power probably wasn’t due to his sincere belief that the individual mandate penalty was a proper use of that power. Rather, Chief Justice Roberts likely believed that invalidating the Act would tarnish the Court’s institutional legitimacy.

As a result, Justice Roberts deferred to the coordinate branches, stating that “[p]roper respect for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”[13] Chief Justice Roberts’ decision is somewhat ironic because his desire to preserve the Court’s institutional legitimacy – and avoid the perception that politics motivate the Court’s decisions – has arguably led Roberts to reach decisions based on his subjective view of how the public will react to a decision rather than on a principled interpretation of the law. Put simply, it appears that Chief Justice Roberts is no longer an umpire.[14]

            6.    Roe v. Wade – and the ugliness of substantive due process

Nowhere is deference more appropriate than where the Constitution is only subject to one interpretation. This was precisely the case in Roe v. Wade, a decision so untethered to the Constitution’s text that even Justice Ruther Bader Ginsburg could not bring herself to support the Court’s reasoning.[15]

The Fourteenth Amendment to the United States Constitution provides in relevant part that “No state shall … deprive any person of life, liberty, or property, without due process of law.”[16] Thus, the Due Process Clause is a procedural guarantee; it ensures that the state cannot arbitrarily and unfairly deprive citizens of life, liberty, or property.

Where in this language can a right to abortion be found? Nowhere – no matter how hard you look. As such, the Court should have left the decision of whether to permit abortion to the states – and the democratic process.

But that didn’t happen. And the path that the Court took to create a right to abortion made no sense whatsoever.

Specifically, in Griswold v. Connecticut, the Court held that the Constitution contained invisible “penumbras” that enabled the Court to unilaterally identify unenumerated rights – regardless of whether the Constitution’s text could support creating these rights.[17] This approach, known as “substantive due process,” states that the word “liberty” in the Due Process Clause encompasses certain unenumerated rights that are so essential to liberty that no process could justify their deprivation. In other words, the Court held that it could create whatever rights it wanted, even if the Constitution’s text provided no support for the creation of these rights.

Based on that flawed reasoning, the Court in Griswold held that the Fourteenth Amendment’s text miraculously contained an unenumerated right to privacy. And the Court in Roe – in a “raw exercise of judicial power,” – held that the so-called right to privacy was “broad enough” to encompass a right to abortion.

This isn’t a joke.

It actually happened.

It’s not surprising that conservative and liberal scholars have almost uniformly condemned the reasoning on which Roe was based. As Professor John Hart Ely stated:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.[18]

Indeed, even Justice Ruth Bader Ginsburg believed that Roe was far too sweeping, such that “it seemed to have stopped the momentum on the side of change.”[19] Likewise,  Harvard Law Professor Laurence Tribe stated that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[20]

If there was ever an issue where the Court should have deferred to democratic choice, it was on abortion. The fact that it didn’t should trouble citizens of all political persuasions. When you look to the Court, rather than the democratic process, to create new unenumerated rights, you give the Court the power to impose its will on an entire nation regardless of constitutional constraints. The risk in doing so is that, when the Court’s members change, so too may the rights that the Court previously deemed fundamental. A perfect example is Dobbs v. Jackson Women’s Health Organization, where a conservative majority may limit, if not eliminate, the right to abortion. As they say, the chickens have come home to roost.

That’s what happens when you ask the Court to decide unilaterally what should be decided democratically.

B.    Basing decisions on underlying purposes is an invitation to subjectivity and arbitrariness

It makes no sense to argue that, in the face of constitutional ambiguity, the Court should examine the underlying purposes of a particular provision to discern constitutional meaning. A purpose-driven analysis is an invitation to subjectivity, bias, and arbitrariness. To be sure, most constitutional provisions have multiple – and broad – purposes that judges can construe differently. As Justice Scalia stated, basing a decision on the broad (and often multiple and conflicting) purposes of a constitutional provision leaves judges “out to sea” where nothing but subjectivity reins – as it does in those “penumbras” that the Court in Griswold invented to create an unenumerated right out of thin air.[21]

Of course, the Court does have the power to say “what the law is,” and in some instances, the Court should not defer when faced with constitutional ambiguity, particularly where rights are inferable from the Constitution’s text.[22] For example, it’s certainly reasonable to conclude that the right to counsel implies the right to effective assistance of counsel, and that the right to free speech implies the right to association.[23] However, there are also instances where unenumerated rights are not readily inferable from the text, or where different but equally plausible interpretations of the text are possible.  That was the case in Clinton, Citizens United, and Kennedy (and a host of other cases). And in Griswold and Roe, no honest jurist could claim that the right to privacy and abortion, respectively, were inferable from the Due Process Clause. What’s more, in Washington v. Glucksberg, the Court held that the Fourteenth Amendment’s Due Process Clause did not encompass a right to assisted suicide.[24] So the Fourteenth Amendment protects the right to terminate a pregnancy but not the right to terminate your own life when, for example, you have Stage Four pancreatic cancer. This is what happens when judges base their decisions on little more than subjective values and gift wrap their policy preferences in dishonest legal analysis.

The Court should remember, as Chief Justice Roberts emphasized, that “[p]roper respect for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”[25] The Court should adopt the same approach when interpreting the Constitution’s text. To be sure, human beings do have natural rights that exist independently of and should not be limited by governments or constitutions. That doesn’t mean, however, that the Court should have the power to identify those rights. If it did, there would be no limits on the Court’s power.

We live in a democracy. That gives the people, not philosopher kings, the right to participate in the democratic process and create laws from the bottom up. When the Court interferes with these processes and makes decisions that lack any reasonable basis in the Constitution’s text, it undermines democracy and liberty, and erodes the Court’s institutional legitimacy.

Simply put, the Constitution does not give nine unelected and life-tenured judges the right to define “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” or to define “liberty in its spatial and in its more transcendent dimensions.”[26] That right belongs to the people.

 

[1] See Hannah Fingerhut, Low Public Confidence in the Supreme Court as Breyer Retires (January 27, 2022), available at: Low public confidence in Supreme Court as Breyer retires - ABC News (go.com)

[2] 524 U.S. 417 (1996).

[3] U.S. Const., Art. I, Sec. 7, Cl. 2 and 3.

[4] 524 U.S. 417.

[5] U.S. Const., Amend. VIII.

[6] 554 U.S. 407 (2008); Trop v. Dulles, 356 U.S. 86 (1958).

[7] An “electioneering communication” was defined as a “broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary.”

[8] 524 U.S. 417.

[9] U.S. Const., Amend. I.

[10] 494 U.S. 652 (1990).

[11] 570 U.S. 529 (2013).

[12] 567 U.S. 519 (2012).

[13] Id. (emphasis added).

[14] See Katarina Mantell, The Umpire of the Court – Biography and Judicial Philosophy of Chief Justice John G. Roberts, available at: The Umpire of the Court - Biography and Judicial Philosophy of Chief Justice John G. Roberts, Jr. (shu.edu)

[15] Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu)

[16] U.S. Const., Amend. XIV.

[17] 381 U.S. 479 (1965); Steven H. Aden, Roe v. Wade Was An Abuse of Discretion, Exercise in Raw Judicial Power (October 30, 2013), available at: Roe v. Wade Was an "Abuse of Discretion," Exercise in Raw Judicial Power - LifeNews.com

[18] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).

[19]  Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu)

[20] Laurence Tribe, The Supreme Court, 1972 Term–Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harvard Law Review 1, 7 (1973).

[21] 381 U.S. 479 (1965).

[22] Marbury v. Madison, 5 U.S. 137 (1803).

[23] See Strickland v. Washington, 466 U.S. 668 (1984).

[24] 521 U.S. 702 (1997).

[25] 567 U.S. 519 (2012) (emphasis added).

[26] Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas,  539 U.S. 558 (2003).

Appellate Advocacy Blog Weekly Roundup, Friday, April 22

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

Supreme Court News and Opinions:

On Monday, the Court issued an order in a capital punishment case from Texas.  In the case, in which a black man was convicted and sentenced to death, one of the jurors made a comment during jury selection about believing that non-whites are more dangerous than whites.  In its order, the Court declined to hear the case, allowing the conviction and sentence to stand.  Justice Sotomayor authored a dissent, in which Justices Breyer and Kagan joined.  The case is Love v. Texas.

• • More from SCOTUSblog
  • More from Bloomberg

On Thursday, the Court issued an opinion in a case involving entitlement of residents of Puerto Rico and other U.S. territories to federal benefits enjoyed by citizens of the states, such as Supplemental Security Income.  In its opinion, the Court by an 8-1 vote ruled that there is no Constitutional right to receive such benefits and that Congress has substantial discretion over how to structure federal tax and benefits programs for residents of the territories such that it is not unconstitutional to deny these types of benefits.  Justice Sotomayor was the sole dissenter, while Justices Thomas and Gorsuch each authored separate concurring opinions.  Justice Gorsuch's concurring opinion has drawn attention for calling on the Court to formally overturn a series of early-20th-century decisions known as the "Insular Cases," in which the Court denied a variety of Constitutional rights to people living in the territories on grounds that Gorsuch described as racist stereotypes.  The case is U.S. v. Vaello Madero.

• • More from SCOTUSblog

On Thursday, the Court issued an opinion in a case involving choice of law determinations in a case where a family brought suit in California against a Spanish museum to recover a piece of artwork expropriated by Nazis.  In its opinion, the Court concluded that California's choice of law provisions should apply instead of federal choice of law provisions, and remanded the case to the 9th Circuit for further proceedings to determine which jurisdiction's substantive property law would be applied by a California court in resolving the underlying dispute.  The case provided a small victory for the family, although only in the sense of leaving open the possibility of the 9th Circuit concluding that Spanish law should not apply to the case.  The case was notable, in part, because it was a unanimous 9-0 opinion.  The case is Cassirer v. Thyssen-Bornemisza Collection Foundation.

• • More from SCOTUSblog
  • More from NY Times

On Thursday, the Court issued an opinion in a case involving an Austin, Texas, city ordinance treating "on premises" signs differently from "off premises" signs. In the case, an outdoor advertising company sought to convert existing off premises signs to digital signs, which city ordinances prohibited (while allowing such signs for on premises signs). In its opinion, the Court ruled that the ordinance was content-neutral and therefore not subject to strict scrutiny.  By a 6-3 vote, the Court sent the case back to the lower courts to determine whether the ordinance survives a lower level of scrutiny.  Comparing the majority and dissenting opinions reveals a disagreement about the appropriate test for determining whether speech is content-neutral, as the majority concluded that the ordinance banned a broad category of communicative content and did not target a specific topic or subject matter while Justice Thomas in a dissent joined by Justices Gorsuch and Coney Barrett argued that the ordinance did discriminate based on content in prohibiting the promotion of events based on whether they occur on or off premises. The case is City of Austin v. Reagan National Advertising of Austin, LLC.

• • More from SCOTUSblog
  • More from Volokh Conspiracy

Federal Appellate Court News and Opinions:

On Thursday, the 11th Circuit Court of Appeals issued an opinion in a case striking down the University of Central Florida's Discriminatory Harassment Speech Code.  In its opinion, the court held that the school's code was unconstitutionally overbroad -- calling it "staggeringly broad" -- and found that it would prohibit any number of statements that would undoubtedly be protected by the First Amendment.  

• • More from Volokh Conspiracy

State Appellate Court News and Opinions:

In Texas, an appellate court ruled that the Texas Health and Human Services Commission policy requiring applicants for Medicaid benefits in nursing homes have "prior occupancy" is incorrect.  The decision removed the concurrent-occupancy standard that required applicants to own and live in the  home at the same time before going to a nursing home.

• • More from Law.com

Appellate Practice Tips and Techniques:

The State Bar of Texas Appellate Section is hosting a webinar on May 17 titled "Appellate Lessons from Legal Insiders:  How Appellate Practitioners Can Add Value to In-House Counsel."  The webinar will be from 12-1, on Zoom.

• • Registration Link Here

 

Appellate Jobs: 

The United States Court of Appeals for the Second Circuit is hiring a Supervising Staff Attorney.  The position would supervise four to six staff attorneys and would involve managerial duties such as recruiting, training, and evaluating the court's staff attorneys.  The position would also involve writing bench memoranda and proposed court orders for appeals and other matters before the court.

• • Posting HERE

Always pencil in a question day

The best advice I ever got on oral argument was to set aside a full day to brainstorm questions that the court could ask. At first, it was a bit daunting; that's a lot of time to spend trying to come up with ideas. But I found that nothing helped me better to prepare for argument, and over time, it became--especially in difficult cases--the most enjoyable part of preparing a case. 

To an outside observer, I probably look like I'm slacking off on those days--I'll stare out the window, look at the ceiling, pace around the office, etc. But it is in those actively contemplative moments that I am coming to the deepest understanding of the issue(s).

If you're just starting out, it can be hard to figure out where to begin, so here are some general topics to ponder:

1. If an issue in your case involves a statute or rule, spend some time just looking at it. "Zoom in" and parse the language--the words, their tenses, their relationships to each other--and "zoom out" to the larger purposes of what the statute/rule is about.
2. If your case depends to any significant degree on precedent, do the same with cases--figure out which cases are most significant (this will often be obvious during briefing, but try to come back to things with a fresh take), what their individual reasoning is, and how they relate to each other.
3. Try to put yourself in opposing counsel's shoes--if you can see things from her perspective, then you can likely anticipate how she will pitch her arguments (and how to respond to them). I've also gotten many questions from judges trying to figure out what opposing counsel's argument is. If they haven't thought through it and can't explain it, the court may look to you for guidance.
4. Develop your inner court--learn what kinds of concerns animate a judge's decisions, and try your best to anticipate and address them.
5. Embrace the most difficult questions. Many young lawyers would rather avoid difficult parts of their cases, but a good panel will go after those first. Recognize that you will get difficult questions, and embrace them as a chance to persuade rather than fearing that the question alone will sink your case.
6. Use your mental backburner. Every so often I come up with a question so good that I can't figure out the answer right away. Those I place at the back of my mind and find that answers come at unexpected times--while I'm riding on the train, while I'm at the grocery store, at the park with the kids, etc.
7. Re-read important parts of the record and think about what happened and why.
8. Ask yourself if what you're asking the court to do is a good idea. Seriously--if it is, then why? If it seems like a problem, what's the limiting principle?
9. Consider your lines--what can you concede and still win the case, or for institutional players, how can you lose in an acceptable way? Judges love concessions, and if you can give something up without hurting your case, it will endear you to the judges.
10. It's been said that the truly educated person understands the implications of his beliefs. So if you're right on this issue, what else must be true? What might it mean for other areas of the law?

These things can also help in coming up with questions for those you are helping prep for argument. But as a seasoned appellate attorney once told me, good mooters come up with good questions, but great mooters come up with good answers. Sometimes there's a tough question that requires collaboration to figure out, but don't make others do all the thinking--try your best to propose a solution and your colleagues will love you for it.

Tongue-in-Cheek Answers to Bizarre Questions

Oral advocates often must resist the first answer that comes to mind from judges who are ill-prepared or concerned about an issue not presented by the case. The judges asking the questions will make the decision so counsel must fashion a respectful response, even if the question does not merit it and the quick-witted answer that seems so tempting.

The same dynamic was on display during the recent hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court. Senators, all of whom voted against consenting to her nomination, asked some strange questions. Despite claims that judges should apply rather than make law and thus keep their personal views in check, many senators sought Judge Jackson’s policy positions on a range of hot button political issues. Her unflappable demeanor and deft handling of the questions posed to her was a model for the type of temperament we expect from judges – and from counsel arguing before a court.

Still, as I listened to the hearings, my responses were unrestrained, knowing that I had not been nominated to the highest court in the land, no one would hear my answers, and I was not making history. In this post, I indulge some of those imaginary answers that popped into my head, tongue firmly placed in cheek, by substituting RSP (me) for KBJ.

Senator Ted Cruz: “I’m a Hispanic man; could I decide I was an Asian man?”

RSP: “Senator, as far as I’m concerned, you can decide you are a fruitcake, and I’d have no reason to doubt you. Still, you would remain equally unwelcome in my household.”

Senator Tom Cotton: “Do you think we should catch and imprison more murderers or fewer murderers?”

RSP: “Really, that’s your question? Do you even know what a Supreme Court justice does? A justice does not catch or imprison murderers or make the laws that govern that process. And, by “we,” are you suggesting that members of the Senate Judiciary Committee do that task? Do you want to try asking a question again?”

Senator Lindsey Graham: “Did you watch the Kavanaugh hearings? … He was ambushed. How would you feel if we did that to you?”

RSP: “Senator, I was busy working for the American people as a judge while those hearings took place, so I did not watch the hearings. How I would feel, though, is an irrelevant question. Judges do not interpret or apply to the law based on how they feel – and your questions will not figure in any case I might hear as a supreme court justice. Senator, given the kinds of questions I have received from your side of the aisle, most of which have little to do with judging or my qualifications to serve on the Supreme Court, like this one, how I feel isn’t relevant.”

“One more thing, Senator. An ambush is the act of approaching or confronting someone with something unexpected. Are you suggesting, based on the questions I’ve been asked at this hearing, that I should have expected such bizarre questions?”

Senator Marsha Blackburn: “Can you provide a definition for the word ‘woman’?”

RSP: “You want a definition of a woman. Here’s one. A ‘woman’ is a person that the Supreme Court as recently as 1961 held Florida could exclude from the jury service list unless she affirmatively volunteered for it, even though no such requirement was imposed on men. The Court reasoned that, ‘Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.’[*] That’s a decision where the majority’s personal views obliterated the constitutional requirement of equal protection – and thankfully no longer holds sway.”

Senator Lindsey Graham: “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?”

RSP: “In introducing your question, you just said that you understood my faith is important to me and that you don’t measure up on being faithful because you only go to church three times a year. Now you want me to rate my religious faithfulness on a scale of 1 to 10? Let’s just leave it at more faithful than you revealed yourself to be, even though the question has nothing to do with my qualifications or ability to serve on the Supreme Court. Next question.”

Senator Ted Cruz: “Do you agree with this book that is being taught with kids that babies are racist?”

RSP: “I have not read this book. My only knowledge of it comes from your description of it and the passage you read before you posed this question. If I were to believe your earlier characterization, it does not say that babies are racist but states that babies are born without prejudice or bias. Your question presupposes the opposite. So, before I can answer your question, answer this one: were you lying about the book then or are you lying about it now?”

 

[*] Hoyt v. Florida, 368 U.S. 57, 61-62 (1961).

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One

As a legal writing professor, I often blog about appellate work for new attorneys or law students.  For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience.  On April 8, 2022, the Fifth Circuit reminded an experienced attorney:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.”  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).  Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts.  This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.

In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time.  Scott (5th Cir. Apr. 8, 2022).  Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022).  Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims.  He failed to do so, “assum[ing]” permission to file equaled filing.  Scott at 2.  Scott then missed the deadline for any additional amended complaints.  Id. at 3.  Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims.  Id.  When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues.  Id.  “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.”  Id.  Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.”  Id. at 4.

Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating:  “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.”  Id.  Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys.  Id.; see Cassens Weiss, 5th Circuit.  Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.”  Id. at 5.

The Fifth Circuit began its opinion:  “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.”  Id. at 1.  The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.”  Id. at 2.  The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be.  Id. at 4, 6.  The court concluded:  “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.”  Id. at 6.

I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time.   Until then, happy drafting. 

Passim is now passe (Should the Table of Authorities in general fall with it?)

I apologize for being an errant blogger. Between grading appellate briefs, our intramural moot court competition, a raging sinus infection, and a certain junior associate's fourth birthday, it has been a busy month. It has also been a busy month in the world of appellate advocacy, with a new Justice being confirmed. Congratulations to Justice Ketanji Brown Jackson!

Since most of the SCOTUS watchers were consumed with the confirmation hearings this past month, you might have missed this small, but important piece of news: The Supreme Court is doing away with passim. In a set of proposed rule changes released on March 30, the Court directed that "passim" no longer be used in the Table of Authorities. The National Law Journal's coverage of news is excellent, with some humorous quotes from veteran practitioners.

I was a bit surprised by the news, but only because I thought that the rules already prohibited the use of passim. But, I was wrong.  Some circuits, like the D.C. Circuit, do restrict or discourage the use of passim in their circuit rules or sample briefs. Such rules make sense, since passim really doesn't help the reader find the brief-writer's discussion of a particular case.

But, some attorneys are arguing that in the age of electronic briefs the Table of Authorities itself should be passe.  In the April Issue of the Arizona Attorney magazine, attorneys Casey Ball and Kelley Jancaitis present an argument for doing away with the TOA, while attorney Geoffrey Butzine argues for retaining it. Ball and Jancaitis base their argument both on the cost of compiling a TOA, especially for attorneys who don't have access to good software, and the fact that "electronic briefs replace the TOA's primary purpose"--which they identify as "to help courts identify and locate the authorities cited in a brief." 

While I agree that searchable electronic briefs are a game-changer when it comes to finding something in a brief, I agree with Butzine that  judges use TOAs in many ways. For example, when I look at a TOA, I have a better understanding of the overall approach that the argument section will take. While Ball and Jancaitis argue that judges can use the TOC for this orientation, the TOA with its detailed list of cases is much more detailed. It tells me, for example, if the appellate really addressed the seemingly devastating case that the lower court relied upon. 

I see this argument over the TOA a bit like the argument over footnoted citation.  Whenever I lecture on this topic, I always point to a blog post by Eugene Volokh, where he discussed footnoted citations with an appellate judge. The judge told him  "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

Given the importance of citations and authorities, I think that TOAs are here to stay, at least for another few decades.

The “It-Cleft” Sentence: Grammar Choice, Persuasive Effect

Thursday’s Raw Bar: A Little Bite of All Things Rhetoric and Law—exploring ideas, theories, strategies, techniques, and critiques at the intersection of rhetoric and legal communication.

The “It-Cleft” Sentence:  Grammar Choice, Persuasive Effect

The Problem with “It Is”

Modern legal writing doctrine says this:  Almost never start a sentence with “it is.”  This advice has a good reason: “It is” at the beginning of the sentence often signals a throat-clearing phrase, a phrase that offers little information to readers and delays them in getting to the point of the sentence.  Over at his blog, Legible, Wayne Schiess describes a throat-clearing phrase as a “flabby sentence opener” that makes writing weak and less concise:  He gives two examples of throat-clearing phrases that start with “it is”: “It is clear that,” and “It is important to point out that.”  Both are empty openers.

What’s the problem with “it is” in the context of throat-clearing?  First, “it” is a “dummy” pronoun—a pronoun that points to no particular noun.  And “is” is a being verb that evokes little, if any, imagery or action.   So, more or less, “it is,” in the context of a throat-clearing sentence opener, says “nothing exists.”   Good job, legal writer.  What a great way to start a sentence for a busy legal reader who craves vivid detail, precision, and concision.   

Because of the characteristics of “it is” in the sentence-starting context, plenty of excellent legal writing instruction directs writers to find these phlegmy phrases and clear them from the informative writing the reader cares about.  Typically, I tell my students to use the “find” tool in their word processors to search for “it is,” and when the phrase appears at the beginning of a sentence, revise the sentence to get rid of the extra words.  But am I right?

Enter the “It-Cleft” Sentence

Not quite. The “it-cleft” sentence, which starts with “it is” or “it was,” is an exception to the rule.  Unlike throat-clearing, an it-cleft sentence can be used to enhance the persuasive effect of legal writing.  Because an it-cleft gives a writer another way to place emphasis on the most important idea in a sentence, it can be a useful persuasive writing tool.  

The “it-cleft” sentence is not a new idea.  Composition experts and linguists know and write about “cleft” sentences.  A cleft sentence is easily identified because the sentence’s clauses are “split” and then re-ordered in an unusual way. That is, the usual is upended to create a new point of emphasis. Typically, that point of emphasis is at the beginning of the sentence.  After a sentence is cleft, the sentence will start with “it” and followed by a being verb (i.e., is, are, was, were).  (Side note:  There are other options for starting a cleft sentence including “what” and “all.”)

It-Cleft Examples:  Before and After

Here are two examples, adapted from Supreme Court opinions:

Garcetti v. Ceballos, 547 U.S. 410 (2006).

• Non-cleft: The First Amendment secures public employees’ rights to speak as citizens addressing matters of public concern.
• It-cleft (emphasizing citizens speaking): It is the right as citizens to speak on matters of public concern that the First Amendment secures for public employees.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018).

• Non-cleft: The hostility surfaced at the Commission’s formal, public hearings.
• It-cleft (emphasizing location): It was at the Commission’s formal, public hearings that the hostility surfaced.

The examples show that the “it-cleft” gives writers an option for changing the point of emphasis in a sentence. In the first example, the emphasis is on the First Amendment law and what it says.  But in the cleft sentence, the emphasis changes to people—speaking citizens and public employees.   By moving the “speaking citizen” to the beginning of the sentence and then “pointing” at that language with “it is,” the reader’s attention is drawn away from a general statement of First Amendment law to a specific assertion about public employee citizen rights.  Although there’s no real difference between the content of the two sentences, the take-away of the sentence noticeably changes.

The mechanics and effect in the second example are similar.  In the non-cleft sentence, the emphasis is on the action--“hostility.”  But in the cleft sentence, the emphasis is on the location of the hostility—the “hearings.”   We might imagine that Justice Kennedy, who wrote the Masterpiece Cakeshop opinion, could have profitably included the cleft sentence to emphasize his point.  In Masterpiece Cakeshop, Justice Kennedy wrote that a state civil rights commission had violated the Free Exercise clause of the First Amendment by being openly hostile to the religion of a party before it. He said that hostile comments caused the Court to “doubt on the fairness and impartiality” of the commission’s adjudicative hearings.  Unlike in other cases where government representatives had made discriminatory remarks, the commissioners’ comments in Masterpiece were made in the adjudicative hearings that were both public and on the record.

Kennedy might have used the it-cleft technique to further emphasize that the location of the hostility—at the public, on-the-record, adjudicative hearings—mattered to his reasoning.  A cleft sentence would bring more attention to the location’s importance.

Three Suggestions for Using It-Cleft in Persuasive Writing

Here are three suggestions for using it-cleft sentences.

• Use an it-cleft to double-down on an important contrast. In the Masterpiece Cakeshop example, we might imagine a paragraph that used the it-cleft sentence in a sentence like this:

The Civil Rights Commission’s treatment of the party showed impermissible hostility toward the party’s sincere religious beliefs. That hostility did not just occur in the private comments of the Commissioners.  Instead, it was at the Commission’s formal, public hearings that the hostility surfaced.

In this example, the it-cleft adds extra emphasis to the contrast between the ideas in the last two sentences.  The writer first tells the reader where the comments did not occur; then, for emphasis, the writer focuses the reader on the location of the comments.  While the writer could have written, “Instead, the hostility surfaced at the Commission’s formal public meetings,”  the writer took advantage of the it-cleft to add extra emphasis to the contrast.

• If you can, simplify and shorten an it-cleft. An it-cleft is already a complex grammatical construction, so simplifying and shortening an it-cleft sentence can make the sentence more accessible. Take for example, the Garcetti sentence: It is the right as citizens to speak on matters of public concern that the First Amendment secures for public employees. The sentence effectively emphasizes the right to speak, but the sentence is a little clunky.  How about this?

It is the right as citizens to speak on matters of public concern that the First Amendment secures.

The sentence is not a great deal shorter than the original, but I like it better.  Admittedly, the language about the “public employees” is gone from the sentence.  But what if the context, rather than the sentence itself, supplied the necessary meaning?  Maybe that context would look something like this:

Public employees are more than government workers; they are citizens who are concerned with the issues facing their communities. It is their right as citizens to speak on matters of public concern that the First Amendment secures.

• Like other persuasive writing devices, use it-cleft sentences be used sparingly. It is the unique sentence construction that produces the persuasive effect.  (See what I did there? 😊) But the sentence can’t benefit from its novelty if the construction is over-used.

The Logic of a Courtroom, the Skewing Influence of Politics

As appellate advocates, we honor the rule of law because it depends on logic and reason. When we muster enough support in our favor, we expect a good result, even if we are sometimes disappointed in that expectation.

The rule of law also means that, regardless of an opponent’s money, clout, and influence, a level playing field exists so that the strength of one's arguments made should prevail. At least, that is the theory. And, in most instances, the theory holds, evidenced by the frequency of 9-0 decisions in the Supreme Court, despite vastly different judicial philosophies and ideological divisions among the justices.

Part of the reason the theory holds is that judges are supposed to park their politics at the courthouse door and not inside the courtroom. In one famous example of doing so, Salmon Chase was President Abraham Lincoln’s treasury secretary and had been a driving force behind the Legal Tender Act, which allowed paper money to replace silver or gold as currency and finance the Civil War. When an opening for chief justice came up, one reason Lincoln tapped Chase (besides eliminating a potential presidential rival) was an assumption that he would “sustain what has been done in regard to emancipation and the legal tenders.” It turned out to be a miscalculation. Chase led a slim majority in declaring the act unconstitutional. Some have explained the turnaround as Chase doing his best to serve his client as treasury secretary to draft a valid act and later deciding that his best was still not good enough.

We enjoy stories about judges putting the rule of law above politics, but we also live in an era where the lines between law and politics seem to be dissolving. The line was never as bold and clear as our learning and imagination suggested. Yet, today, the marriage of politics and law appears more evident, particularly in the appellate courts.   

It does not just come with threats of impeachment by disappointed legislators who resent a court’s decision striking down their handiwork.[1] It also comes from the interjection of social and political debates in opinions unrelated to those debates, as well as the politicization of judicial philosophies. Many senators who have announced that they plan to vote in opposition to Supreme Court nominee Ketanji Brown Jackson have explained their rationale for doing so because she would not commit to originalism. Although she testified that she uses originalism, that was not enough. Still, few of those senators who have insisted on an unalloyed commitment to originalism could explain how it works as an interpretive tool behind a simplistic but uninforming definition. They probably hold the false belief that originalism always leads to a single result.

One of the most outspoken originalists on the Court was Justice Antonin Scalia, who liked to describe himself as a “fainthearted originalist.” He held no brief where originalism would lead to an absurd result. He also fashioned his originalism, at times, to fit his preexisting views as in D.C. v. Heller.[2] The fractured version of history he recited to support his conclusion was assailed by two conservative jurists for its selective use of history.[3] Other times his use of the tool led him to a conclusion that the Senate’s originalism fans would probably oppose, such as in the Flag-Burning Cases,[4] where he voted to grant First Amendment protection to that act of protest.

Originalism is no panacea against imbuing interpretation with personal predilections, but advocates must be prepared to provide the necessary fodder for those who follow that approach. Pointedly, it does not always inform the issue. Justice Samuel Alito once teased Scalia for his sometimes-rigid adherence to originalism during oral argument in Brown v. Ent. Merchants Ass’n,[5] where the Court held a California statute that restricted the sale or rental of violent video games did not comport with the First Amendment. After Scalia had posed a question to the advocate, who hesitated in responding, Alito mockingly explained the question: “What Justice Scalia is asking is what did James Madison think about video games?”

Perhaps appellate advocates have always contended with politics in preparing briefs and oral arguments, but the impact of it today seems more acute than at any time in my experience. And the nature of the politics intruding on judicial decision-making also seems more extreme.

 

[1] See, e.g., Haley BeMiller, Jessie Balmert, and Laura A. Bischoff, “Ohio Republicans discussing impeachment of Chief Justice Maureen O'Connor after map ruling,” Columbus Dispatch, Mar. 18, 2022, https://www.dispatch.com/story/news/2022/03/18/ohio-republicans-want-impeach-maureen-oconnor-over-redistricting/7088996001/.

[2] 554 U.S. 570 (2008).

[3] See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic (Aug. 24, 2012) (book review), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.

[4] Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).

[5] 564 U.S. 786 (2011).

Appellate Advocacy Blog Weekly Roundup Friday, April 1, 2022

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

• In a shocking and unexpected move, a unanimous Supreme Court overturned Marbury v. Madison this afternoon stating that the principle of judicial review was, in fact, unconstitutional.  The sua sponte ruling sent ripples through the legal community with many wondering how the decision may retroactively affect what was consider controlling Supreme Court precedent. See the opinion here.  And reports from The New York Times, CNN, and Fox.

• The Supreme Court heard argument this week in a case that addresses whether companies can use arbitrations clauses that forbid class claims. At issue is a California labor law that allows attorneys to sue on behalf of groups of workers even where the workers agreed to arbitrate their claims.  The Court posted transcripts and audio of the argument. See reports from Courthouse News Service and The LA Times.

• This week, the Supreme Court agreed to hear two interesting cases:

  • A case involving the humane treatment of pigs that will hear a challenge to a California law that requires adequate space for breeding pigs to turn around. The challenge argues that the law is an unfair burden on out-of-state farmers. See discussion of the case from The New York Times and The Washington Post.
  • A copyright battle over Andy Warhol’s Prince image. The question is whether Warhol violated copyright of the photographer Lynn Goldsmith when Warhol created his Prince images based on the Goldsmith’s photo. The case addresses the scope of fair use as a defense to copyright infringement. See discussion of the case from NBC News, USA Today, and The New York Times.

State Court Opinions and News

The Louisiana Supreme Court has ruled that Black Lives Matter leader DeRay McKesson could be liable for injuries an officer suffered during a 2016 protest. The court ruled that people who participate in crimes by others can be held liable and that emergency workers injured while on duty are not automatically barred from suing. See ruling and reports from ABA Journal and The Advocate,