Appellate Advocacy Blog

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

Monday, October 31, 2022

No Laughing Matter: Pop Culture and Humor in Judicial Opinions

I recently participated in a panel discussion, organized by Scribes, titled "No Laughing Matter: Pop Culture and Humor in Judicial Opinions." You can find a recording of the event here. Present company excluded it was a distinguished panel:

  • Hon. James C. Ho, United States Court of Appeals for the Fifth Circuit
  • Hon. John B. Owens, United States Court of Appeals for the Ninth Circuit
  • Jason P Steed, Kilpatrick Townsend
  • Chad Baruch, Johnston Tobey Baruch
  • And me

The discussion was moderated by Scribes president-elect, John Browning.

Despite the fact that my cats engaged in several spirited fights during the panel and my two year-old popped in twice, I had a fabulous time discussing such an important, and controversial, topic.  While I encourage you to watch the entire recording, I thought that I would touch on a few salient points from our discussion.

First, there was agreement on the fact that pop culture references, humor, and the use of narrative or storytelling are separate and distinct tools used by  judges in opinion-writing, and, as such, separate "rules" should govern their use (or in some cases discourage their use).

Second, several us of noted that judges need to be mindful of how pop culture and humor references might "age." While we all might be streaming X,Y,Z show at the present, will readers 10, 20, or 30 years later catch the reference or humor?

Third, there was also near consensus that pop culture and humor should be used sparingly and with an attention to the gravity of the issues in the case. There was also general consensus that, as one panelist put it, the use of humor or pop culture should be a means to an end and not the ultimate end.

Finally, interestingly, most of the panelists agreed that use of humor or pop culture by an attorney should be done even more sparingly.

Thank you Scribes for organizing such an outstanding discussion!

October 31, 2022 | Permalink | Comments (1)

Thursday, October 27, 2022

Email blog delivery

Dear Readers:  

A notice from our blog tech staff regarding a change in services:

For those of you who enjoy receiving these blog posts delivered to your email account each day, we regret that this service (known as Feedburner) has been discontinued by Google. We apologize for any inconvenience. 

For those of you who follow this blog and would like to make that more convenient we recommend using an RSS reader. You may still subscribe to this blog via FeedlyNewsBlur, or Inoreader.

Sorry for the inconvenience!


October 27, 2022 | Permalink | Comments (1)

Wednesday, October 26, 2022

Embracing the power of "because" in headings

Appellate judges read A LOT of briefs. Odds are that they will give yours a single careful reading. After that, they're likely to use shortcuts to remind themselves of your arguments. Different judges will rely on different sections--some like the introduction as a refresher before oral argument; some prefer the argument summary; still others will flip to the table of contents and just read the headings. All of these short forms of your argument should be honed and re-honed to make clear exactly what your asking the court to do and why.

Many headings advocate without explanation. For example:

I. The trial court erred by admitting the victim's police interview statements.

II. The trial court abused its discretion by excluding Dr. Ramsey's testimony.

III. Trial counsel performed deficiently. 

They are topical in the sense that they inform the court of what was wrong, but none of them sums up the why. To take care of this, always include the why by adding "because" (or its equivalent) and explaining. If you need more explanation to get to the salient points, add subheadings.

I. The trial court erred by admitting the victim's police interview statements because they were hearsay and met no exception. 

A. They were not present sense impressions because they were given hours after the alleged crime.

B. They were not prior inconsistent statements because they were consistent with the victim's trial testimony.

C. They were not admissions of a party opponent because a victim is not a party.

II. The trial court abused its discretion by excluding Dr. Ramsey's testimony because, as a certified pulmonologist, he was qualified to testify about events that can trigger an asthma attack like the one the defendant had. 

III. No reasonable attorney would have held back an objection to the victim's mother's bolstering testimony that her daughter was "telling the truth" about the rape. 

This second set will give the court a much better refresher about your arguments. They will also find it helpful before they even start to read, because you've given them the gist of your arguments before getting into the details. 

So embrace the power of "because"--your arguments will be clearer to you and clearer to the court. 

October 26, 2022 | Permalink | Comments (0)

Saturday, October 22, 2022

The Curse of Legal Knowledge

The curse of legal knowledge. Sometimes we call it advocacy bias. You've been living and breathing this issue for weeks (or longer). You know it backward and frontward. So what often happens? You forget that once you're an expert, it's really hard to remember what it was like to be a newbie.

This disconnect between lawyers who are experts in their cases--and audiences who are not--is to blame for many major writing pitfalls. Cursed with deep knowledge and insight about the issues, legal writers often fill their writing with jargon, forget to offer basic context new readers need, and generally abandon readers to piece everything together. 

Let's explore a few tools that will help you fight to reach your readers where they are looking from, instead of your vantage.  

First, define or explain terms.

If you're using a term that you aren't sure every legal reader will instantly understand, take a moment to define it. This is true for legal terms as much as it is for terms that come up in your facts. Jargon, terms of art, and frankly any long or unfamiliar word can often use a quick definition. Of course, if you can cut these esoteric in the first place, all the better. 

Here's Justice Kagan being the ever-helpful definer, breaking down some math for her readers in simpler terms: 

“That is a mouthful[]. So again, in general terms: The numerator is the number of patient days attributable to Medicare patients who are poor. The denominator is the number of patient days attributable to all Medicare patients. Divide the former by the latter to get the fraction 'expressed as a percentage.'"

Second, offer laymen recaps when helpful. 

When you've forced readers through some dense concepts or details, it's often helpful to give a quick recap that simply summarizes the complexity. This gives your readers a confirmation that they got out of the section what they should have. 

Take this snippet, penned by a federal appellate judge. Readers had just run a gauntlet of legal exposition, including lengthy explorations of two key cases. The author thought readers could use a quick recap of what they should have taken away. You can't get much better than doing some simple synthesizing so readers don't need to work so hard. 

“If we consider Maciolek and Spencer together, what emerges is a workable standard for judges and juries to evaluate: The act must warrant alarm in a reasonable person for the safety of others.” 

Here is Justice Kagan masterfully recapping the takeaway from a series of longer case expositions--with the added bonus of teeing up the key issue for readers: 

"In each [of the above cases], the Court observed that using a different method required no change in the State’s statute, but only a change in an agency’s uncodified protocols. Here, all parties agree that Georgia would have to change its statute to carry out Nance’s execution by means of a firing squad. They dispute whether that fact switches Nance’s claim to the habeas track."

Third, orient readers. 

Fresh readers usually need you to start at as high a level as you can. In your introduction and first pages of your document, that means literally "why the heck are we even here?"  When you get to specific sections, including your facts, take the same approach. 

Start by orienting readers to each situation or issue from the highest level. Then quickly guide them to what matters. 

Federal Judge Jennifer Dorsey is a pro at this high-level orientation that readers love:  Not procedural details or in-the-weeds legal standards, but the simple background of a person purchasing a home and buying insurance for it. Then the judge quickly guides us to what matters--the particular policy clause everyone's fighting over. 

When Teresa Sivil purchased her Eagle River, Alaska, home in 2014, she entered into an insurance agreement with Country Mutual Insurance Company through its Alaska broker, Melissa Izzat Insurance Agency, LLC (MIIA). That policy covered the peril of sudden and accidental water damage. When Sivil moved to Nevada three years later, she contacted an MIIA representative to remove personal-property coverage from the home policy. Allegedly without Sivil’s knowledge or consent, the representative also removed coverage for sudden and accidental water damage. When a pipe broke at Sivil’s Alaska home the following winter, she submitted the claim to Country Mutual, who quickly denied it, citing the modification of the policy to remove coverage for water damage. Sivil sues Country Mutual for breach of contract, breach of the implied covenant of good faith and fair dealing, and violations of Nevada’s unfair-claims-settlement-practices statute.

Consider the path most writers would take here. Most would have dived deep from the start, beginning with something like: 

"Defendant Country Mutual Insurance Co., moves for summary judgment on the grounds of breach of contract and lack of evidence to support bad faith claims..."

Yes, the judge's version uses some more real estate. But a paragraph of orientation will be oh-so-welcome for new readers. 

Fourth, give readers more context for key points. 

Your key points, whether in the law or the facts, can often benefit from some favorable context or priming. Tell readers why the point matters. How the point fits into the overall case or argument. In short, give readers helpful context for them to extract what they need from your main points. 

SCOTUS regular Paul Clement and his team offer a great example of context at work. Clement's team was arguing about a complex procedural issue and wanted to offer some context for why their interpretation was the better one. So before getting into the weeds, these writers offered some context for why, practically, protective notices of appeal work as they do: 

"Protective notices of appeal play an essential role in preserving appellate rights when a party seeks to appeal a district court order of uncertain appealability. In such circumstances, litigants are not forced to forgo good-faith objections to appealability in order to pursue an appeal on the merits. To the contrary, as officers of the court, would-be appellants are duty-bound to notify the appellate court of potential jurisdictional defects. The solution to this potential dilemma is straightforward: Appellants in such circumstances are advised to 'consider a protective appeal.'”

Fifth, give readers frameworks before details. 

Finally, strive to always give readers roadmaps and frameworks for all the main points you're going to deliver. Start with your introduction, but the same goes for every major section in your document.

Give readers the big-picture storyline before all the details. Give readers the key rule concepts and elements before all the authority. Offer your overall pitch for the document before all the dense sections.  

Justice Kagan often offers these frameworks in her introductions and throughout her documents. For example, in this intro to a short opinion, she offers all the major legal concepts in two paragraphs. Now when folks read the meat, they already have a simple framework of the law to help them categorize the pieces: 

"To prevail on [method of execution claim], a prisoner must identify a readily available alternative method of execution that would significantly reduce the risk of severe pain. In doing so, the prisoner is not confined to proposing a method authorized by the executing State’s law; he may instead ask for a method used in other States.

This case concerns the procedural vehicle appropriate for a prisoner’s method-of-execution claim. We have held that such a claim can go forward under 42 U. S. C. §1983, rather than in habeas, when the alternative method proposed is already authorized under state law. "

October 22, 2022 | Permalink | Comments (0)

Wednesday, October 19, 2022

Fact statements, part II

Following up on my last post, a few more pointers on writing compelling statements of fact. 

4. Prime the pump. There are only two ways to become a great writer: (1) read good writing; (2) try to echo it until your own voice emerges. On the first, it's helpful to read good legal writing, but it's more helpful to read just good writing period. Pull out some Shakespeare, some Milton, some modern author whose prose you find compelling (I'm a big Joseph Conrad fan myself). Figure out what makes it compelling--how are the sentences structured? How did they craft a particular turn of phrase? What punctuation helped you speed up or slow down as you read? How did they draw attention to something and how did they brush something aside? And don't forget some poetry. Poets often convey a great deal of meaning with very few words. That is the work of a great appellate attorney--making things as simple as possible, but not simpler; finding simplicity on the other side of complexity (as Justice Holmes said he longed for). I know that law students read a lot, and it can be exhausting to think about picking up a book or magazine after setting down your case book. But if you enjoy the author, it's no chore. You won't win any literary awards for your legal writing, but you just may keep your reader's attention for longer and improve your odds of persuading them by being more interesting. 

For example, there's a literary technique called a zeugma in which a writer applies a modifier to two or more objects in different ways--often, to some literally and others metaphorically. For example, in To Kill a Mockingbird, Harper Lee wrote about the character Boo Radley: "Boo was our neighbor. He gave us two soap dolls, a broken watch and chain, a pair of good-luck pennies, and our lives." A colleague once echoed this technique in a very effective fact statement about a murder: "At closing time on February 15, 1994, someone robbed the Payless Shoe Source Store in West Jordan, Utah.  He took $849.73, a pair of size 10 men’s “Attack” athletic shoes with teal trim, a pair of size 10½ black “Honcho” boots with distinctive green stitching, and the life of the only employee in the store. . . ." The zeugma and the fine detail of inconsequential things really draws the reader's attention to the true loss. 

5. Slang and contractions. This one divides a lot of lawyers and judges--usually (but not always) by age. Some think that putting a contraction or bit of slang into a brief or opinion causes the bowels of the earth to shake and the majesty of the law to crumble. Others write briefs and opinions so laden with informality that the reader is left to wonder whether she is reading something of import at all.  I tend to fall between those extremes. The point of legal writing is to persuade. Persuasion often requires careful emphasis. By sprinkling your brief with calculated  informality, it can draw the reader's attention in a persuasive way. It's like cinnamon--a little bit goes a long way, but none robs the dish of flavor. Now, it must be the right case and at the right time. But I think there's a place for it, if done sparingly. And if you're uncomfortable doing it in a brief, it can at least be helpful in oral argument, which tends to be a bit looser than written advocacy. Whatever you do, do it on purpose, and you'll likely be more effective.   

6. Genre. Sometimes you are gifted with a case in which you can echo literature or media to good effect. By favorite example of this was a dissent from a denial of certiorari from Chief Justice Roberts, in which he echoed film noir: "North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike force, was working a morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak. Devlin knew. Five years on the beat, nine months with the Strike Force, He’d made fifteen, twenty drug busts in the neighborhood. Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way. Devlin knew the guy wasn't buying bus tokens. He radioed a description and Officer Stein picked up the buyer. Sure enough: three bags of crack in the guy's pocket. Head downtown and book him. Just another day at the office.” Pennsylvania v. Dunlap (2008) cert. denial dissent.

If you are familiar with the genre, you can hear the grizzled, world-weary voiceover and see the gumshoe detective walking the mean streets of North Philly (notice: not Philadelphia). The tone doesn't keep up throughout the opinion, but it lasts long enough to make a point: the officer had probable cause to arrest. If this were made into a movie and you watched it, you wouldn't have the slightest doubt about what just went down. This opinion generated a lot of debate, but for me it was quite effective (and entertaining). 

October 19, 2022 | Permalink | Comments (3)

Sunday, October 16, 2022

The New World of Constitutional Appellate Advocacy

Appellate decisions may decide a dispute between opposing parties and articulate a rule of law, but they often create new issues that can flood the courts. The Supreme Court’s newly energized reliance on history and tradition, rather than balancing tests and levels of scrutiny, has opened the door to arguments that that previously had little chance of success. And, advocates, unsurprisingly, have shown no hesitation to take up the cudgel now available to them.

Take the new attacks on gun regulations. At the end of last term, in New York St. Rifle & Pistol Ass’n v. Bruen, the Supreme Court struck down New York’s 1911 law that required proper cause or special need to obtain an unrestricted gun license. It held that the Second Amendment, no less than any other constitutional right, does not require the demonstration of a special need to justify its exercise. Instead, regulations and restrictions on guns had to fit within historical traditions. Under that approach, the 6-3 majority stated in an opinion by Justice Thomas, “sensitive places,” like courthouses and polling places, might legitimately impose restrictions on carrying firearms, but the urban character of a place could not. Public safety considerations, the opinion established, do not outweigh the constitutionally recognized right.

As predictably as night follows day, other gun regulations came under attack as inconsistent with historical traditions. Courts have now struck down a variety of gun regulations. For example, in Firearms Policy Coalition, Inc. v. McCraw, a Texas law prohibited persons under twenty-one from carrying a gun off their premises except in limited situations. The district court, which stayed its decision pending appeal, held that the “Second Amendment’s text, as informed by Founding-Era history and tradition, . . . protects [18-to-20-year-olds] against this prohibition.” The court reasoned that the Second Amendment included no textual age restriction, the historical analogues that Texas produced to meet its burden to uphold the law lacked the necessary specificity, and that examples from the 19th century failed because they were not from the founding era.

A federal law that restricted handgun purchases to those under indictment for crimes that involve at least one year of imprisonment suffered a similar fate when a federal judge found insufficient evidence that it “aligns with this Nation’s historical tradition.” In United States v. Quiroz, the court acknowledged “valid public policy and safety concerns,” but found the Bruen’s historical tradition analysis swept those aside.

In New York, a federal judge limited New York’s post-Bruen statute that attempted, among other things, to define “sensitive” or “restricted” locations” by declaring unconstitutional its application to places that lacked historical precedent. In Antonyuk v. Hochul, the court struck down restrictions that applied to summer camp, public transportation, places of entertainment or amusement where alcohol is served, Times Square, and a generally defined sensitive or restricted places.

To this list, in the past week another decision came down. In United States v. Price, a federal district court struck down the federal law that prohibits possession of a firearm with an altered, obliterated, or removed serial numbers because it lacked historical analogue. The court notes that it is “undisputed that serial numbers were not required, or even in common use, in 1791,” but came into effect only with the mass production of firearms. Even then, serial numbers became mandatory only after passage of a 1968 federal law. Those facts were determinative under Bruen’s mandatory mode of analysis.

These examples demonstrate the limited value of the type of rigid analysis adopted by the Court. Even so, an advocate pressing an issue cannot forego utilizing the Court’s new-found fondness for historical tradition when advancing arguments under other constitutional provisions. And, under that approach, settled law can become unsettled. It may even be a form of malpractice to accept precedent not based on historical conventions without making new arguments that place the advocate’s position within that accepted tradition. Welcome to the new world of constitutional appellate advocacy.

October 16, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Thursday, October 13, 2022

Free CLE: No Laughing Matter: Pop Culture References and Humor in Judicial Writing - October 19 at 12:00 p.m. CDT

I am participating in a Scribes CLE that might be of some interest to readers of this blog. Details below:

Webinar - No Laughing Matter: Pop Culture References and Humor in Judicial Writing - October 19 at 12:00 p.m. CDT

The ongoing debate over judicial use of humor and pop culture references is the subject of our upcoming CLE webinar, featuring distinguished jurists from the federal appellate bench, along with distinguished panelists from the legal academy and the world of appellate practice. The panel will discuss examples of the use of humor and pop culture references in opinion writing, its advantages and disadvantages, and circumstances in which it may be inappropriate. 

On October 19 at 12:00 p.m. CDT, join our distinguished panelists–U.S. Court of Appeals for the Fifth Circuit Judge James C. Ho, U.S. Court of Appeals for the Ninth Circuit Judge John B. Owens, University of Arizona College of Law Prof. Tessa L. Dysart, Georgia State University College of Law Prof. Anthony Michael Kreis, Jason P. Steed of Kilpatrick Townsend, and Chad Baruch of Johnston Tobey Baruch–in a discussion moderated by Scribes President-Elect John Browning.

Scribes is seeking 1.25 hours CLE credit in Illinois and Texas and can provide certificates of attendance for attendees seeking credit in other jurisdictions. Register here. We will record the session for later viewing as well.

October 13, 2022 | Permalink | Comments (0)

Saturday, October 8, 2022

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “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.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.


The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.


[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (

[2] No.19-1392, 597 U.S.     , available at:

[3] See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? ( (emphasis added).

[7] 567 U.S. 519 (2012).

[8] 554 U.S. 407 (2008).

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

October 8, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, October 2, 2022

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”

October 2, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (2)