Appellate Advocacy Blog

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

Monday, November 28, 2022

Audio SCOTUS

I love a good audiobook. In fact, I would rather listen to a book than listen to music when I am working out or driving. So, when I received an email about a podcast where some reads the text of SCOTUS opinions, I was intrigued.

The project is the brainchild of Pippah Getchell, a political scientist with a background in government work and teaching.  Ms. Getchell is not an attorney. She is quite clear on that point. But, she does understand the importance that SCOTUS opinions play in interpreting the Constitution. As she explains on her blog, it was the Court's opinion in Dobbs that prompted her to start reading, recording, and disseminating SCOTUS opinions; although in her podcast introduction, she notes that she had been waiting for someone to create such a resource for years. Part of her motivation for recording the opinions is to allow persons to make up their own minds on what the opinions say--certainly a worthwhile endeavor!

I decided to listen to a few excerpts of the podcast to see what sort of a resource I thought it could be for law students and practitioners.  As an initial matter, I enjoyed hearing Ms. Getchell read. The narrator can make or break an audiobook, and I found Ms. Getchell to be a worthy narrator.  Second, she has quite a repertoire of cases that she has read, including Marbury v. Madison, Dred Scott, and Baker v. Carr. She also has several very recent SCOTUS opinions, including Dobbs, Kennedy v. Bremerton School District, and Berger v. North Carolina NAACP.

I listened to the beginning of Marbury and a bit of the Bremerton opinion.  In both cases she started out with a brief 2-3 minute description of the facts of the case. While this can be helpful to the uninformed reader listener, even just stating the "facts" and the key legal issues can color the listener's perspective on the opinion.  After the intro she launches into the reading.

I was curious how she would handle citations and footnotes in her reading. From what I could gather listening to Bremerton (while also looking at the opinion), she skipped both. From a reader and listener perspective, I totally get it. BUT, as a teaching tool, that decision is unfortunate. Citations, however, are critically important for understanding the foundation of the Court's opinions. Students of the law should be aware of the case law that the Court builds its opinion on. Likewise, footnotes often contain important information (I mean, law is full of famous footnotes). Students need to get into the habit early of reading them and assessing their relative value to the holding.

Despite these issues, Ms. Getchell's project is a worthy one. Feel free to head on over to https://whatscotuswroteus.podbean.com/ to see her full list of episodes.

November 28, 2022 | Permalink | Comments (1)

Sunday, November 27, 2022

Two Overlooked Tips for Writing Briefs and Arguing Cases

Experienced appellate advocates often tell others that the art of effective brief writing relies on a uniform set of tips, such as keeping sentences short, using topic sentences, and simplifying language. Sometimes, though, violating these precepts can prove effective, even though the advice offered is usually worth following.

Today, however, I want to focus on two key tips that, too often, are ignored: maintaining credibility and making no assumptions about the court’s knowledge of the law. It is critical that your rendition of the facts and the law are credible. In one case years ago, my opponent, a prominent appellate practitioner made a factual assertion that misstated the record. It was not a crucial fact, but it was used by the other side to demonstrate the insensibility of what the court below had done across the board so that he could claim the actual ruling in the case was similarly fanciful. In my reply brief, I dropped a footnote that showed the assertion was wrong with a citation to the record. Surprisingly, during oral argument, my opponent repeated his misrepresentation of the record from his brief. As I jotted down a note to remember to debunk the claim when I stood up, one of the judges eviscerated him for the misstatement. He never recovered from that during the remainder of his argument. To me, the rebuttal was all the stronger because the judge made the point, rather than me. Misrepresenting the record can destroy credibility on other issues, just as he had hoped to harm the credibility of the decision below by making a point that turned out to be unanchored by the evidence.

A similar experience occurred in another case, although this time it concerned the state of the law. My opponent sought to make a seemingly logical argument about why a federal district court should have denied a remand motion after removal from state court. He relied upon support for his position from a nonbinding letter from the general counsel of a federal agency. What he failed to explain, though, was how his position remained credible after three other federal circuits and more than 100 district courts had ruled otherwise. No court had accepted his position. At oral argument, the panel never let him off that point. The issue consumed all his argument time so he had nothing left for rebuttal. On the other hand, in light of how his argument went, I used very little of my time before sitting down.

Where the law is uncertain and conflicting decisions or building blocks render it a close call, credibility can be the key to success. A court is more likely to accept a novel position if it is built on a solid and acceptable foundation, rather than one that does not withstand scrutiny.

Today’s second tip requires you to lay a foundation for the fundamentals that undergird what may be a fairly sophisticated issue. Judges are often generalists and may lack experience with even well-established issues. There are many areas of law where the usual assumptions do not apply. Burdens can shift to defendants, proximate cause standards can vary based on statutory text, and developing trends can signal a change when the context of the dispute creates new considerations. A credible and informed brief will explain the basic rules, whether they apply or require adjustment because of the context of the case. Even during oral argument, it pays to explain fundamentals before reaching the key issue. While most judges are well prepared for oral argument, some may not have read the briefs as carefully as you assume. Without dwelling on basic concepts, it helps to tie them to the issue at hand unless a fair reading of the tribunal indicates a different course. At the same time, one must be alert to a well-informed court that will not patiently await your explanation of basic law.

While no advice about brief writing or oral argument is immutable, credibility and foundational explanations for the legal issue come to providing a consistently helpful approach as any advice you might consider.

November 27, 2022 in Appellate Advocacy, Federal Appeals Courts, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, November 24, 2022

An Appellate Practitioner Gives Thanks (2022 Edition)

A lot has happened this year. But regardless of whether one views this year as a good one or a bad one, there always are reasons to give thanks. Last year, I posted what I was thankful for as an appellate practitioner. I felt like I left out a lot, so here is this year's version of what I'm thankful for.

  • Acknowledgment by legal writing experts that it's okay to end a sentence with a preposition (otherwise my previous sentence would be problematic).
  • Proportional fonts. Sure, I always liked the typewriter lookalike Courier New font. But it's way past time to move on.
  • Topic sentences. Not the easiest to write, but they certainly help clarify and strengthen any persuasive argument.
  • Voters' approval of a state constitutional amendment changing the name of Maryland's top court from the Court of Appeals to the Supreme Court of Maryland (have you ever seen their spiffy red robes?). Now if New York would only get on board and change their courts' confusing names.
  • The fact that when I was in law school there was only IRAC. Now every legal writing textbook has a different acronym, be it TREAC or CREAC or CRExAC or TRIAD, to explain the structure of a legal argument.
  • The admission of the public to Supreme Court arguments again.
  • Justice Breyer's long service to the nation.
  • A new member of the Supreme Court, Justice Ketanji Brown Jackson.
  • All the discussion points that the Supreme Court of the United States has given me for my Supreme Court Practice class next semester.
  • Appellate advocates who refer to opposing counsel during argument by party name or "opposing counsel" rather than referring to them as "my friend" or "my colleague" (after all, is opposing counsel really your friend or colleague?). Okay, I know some of you like that (and maybe some courts like it, too). But personally I think unless you are Paul Clement or some other elite Supreme Court practitioner you shouldn't do it.
  • The apparent soon-to-be demise of the U.S. News & World Report law school rankings. Well, that probably is an exaggeration. Only those law schools that have nothing to lose, e.g., Harvard, Yale, and Berkeley, are likely to pull out.
  • All of my appellate mentors over the years, whether they were judges, supervisors, or academics.

And I'm thankful for you, whoever you are, for being interested enough in appellate matters to read this blog. Here's hoping that 2023 will bring us even more to be thankful for. Happy Thanksgiving!

November 24, 2022 | Permalink | Comments (0)

Saturday, November 19, 2022

Western Justice Center Gives Ninth Circuit Senior Judge Dorothy Nelson a Lifetime Achievement Award

Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s  Pasadena courthouse.  One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses.  She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit.  During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution.  See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).

Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.”  October 23, 2022 Press Release.  The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system.  The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area.  Id.

As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation.   She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.”  Id.  

Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law.  She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.”  Id.  Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today.  See id.

As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless.  The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument.  However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so. 

Happy Thanksgiving!

November 19, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Arbitration, Federal Appeals Courts, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Wednesday, November 16, 2022

The personalities of drafting; or, why I learned to stop worrying and started outlining more

Many years ago, Betty S. Flowers proposed thinking about the drafting process in terms of four different personalities: the Madman, the Architect, the Carpenter, and the Judge. Each should have its turn at the helm during the writing process. For Flowers, this meant writing and re-writing a lot. 

  1. Madman: The brainstormer with all the ideas--good and bad. Let her loose to write whatever comes to mind, almost stream-of-consciousness. Write rationally, write emotionally. Don't stop to edit, just produce. When you're out of ideas (or reach a certain time you've set for her), set it aside for a day or two. 
  2. Architect: After a bit of time to cool off, turn things over to the Architect. She will sort through the pile of ideas and select the best ones to develop. This is a cold-blooded process; no time for emotional attachment to your creations. She's just going to start envisioning what the structure will look like and how the pieces before her will fit in. She thinks on the paragraph level. 
  3. Carpenter: With a general blueprint in mind, it's the Carpenter's turn. She thinks on the sentence level, fleshing out the Architect's ideas into something more connected and seamless, focusing on logical sequence, clear writing, and smooth transitions.  
  4. Judge: Finally, it's the Judge's turn. Like a building inspector, she looks at all the small details--word-level thinking. She examines punctuation, spelling, grammar, tone-all the finishing touches.

While this sort of writing and re-writing may serve for most essays and creative writing, I think it's inefficient for legal writing. I know because I used to write this way. When I had finished going through the record and reading the relevant cases, I would have only the vaguest idea of my organization and would just start writing. I figured that it was through writing process that I would come to understand the issues. It worked, but it took many re-writes. My boss suggested that I spend more time outlining and less time writing. I was skeptical; this was how I had always done it and I didn't want to mess with the process (as messy as it was). But I decided to give it a try.

It was a revelation. I found that as I thought about and worked on my organization first, the actual drafting was much faster and more efficient. When I started, I probably spent 10% of my time outlining and 90% writing. At this point, it's more like 70% outlining and 20% writing--and the writing is so much easier. I think there is still room for Flowers's personalities, but they need to be divided up into outlining (Madman and Architect), drafting (Carpenter) and editing (Judge). First, the Madman spins out possible responses. I let those sit for a while before letting the Architect organize the good ones into paragraph-level thinking (complete, in the best cases, with topic sentences). This is where I spend the bulk of my time. Once I have my outline to the point of solid topic sentences (complete with supporting record and case cites), I'm ready to start drafting, letting the Carpenter have his go. After that, the Judge edits. 

November 16, 2022 | Permalink | Comments (0)

Sunday, November 13, 2022

A Focus on the Facts

Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.

In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.

The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.

The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.

The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.

 The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.

 Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.

November 13, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, November 6, 2022

Disagreement, Civility, and Respect

It’s certainly no secret that we live in very partisan and polarizing times.  But the reasons for such polarization border on the ridiculous.

Indeed, citizens often cannot reasonably and respectfully disagree on matters of public importance, such as abortion, immigration, or education. Additionally, the media, whether it be CNN, Fox News, or MSNBC, has devolved into little more than a partisan enterprise that vilifies anyone with whom it disagrees, and that eschews true intellectual debate (and common sense).  What’s more, the rhetoric of our politicians, both Republican and Democrat, has become so divisive, simplistic, and, quite frankly, dishonest, that any attempt to engage in reasonable discourse is futile. And the United States Supreme Court has contributed to the problem; the meaning of the Constitution seems to depend more on the composition of the Court rather than a reasonable interpretation of its text. In essence, the credibility of many public figures who once inspired trust has vanished as they have unapologetically exposed their personal and political biases.

These factors, among others, have compromised citizens’ confidence in our institutions, in the political and electoral process, and in the ability to disagree on issues of law and policy while maintaining civility and respect. And such factors, not Donald Trump or Joe Biden, is the true threat to a viable and sustainable democracy.

Why is this happening? Below are a few reasons – and suggestions to restore a minimal level of maturity and common sense to public discourse.

1.    The prevalence of groupthink

Groupthink is one of the biggest impediments to a meaningful exchange of truly diverse perspectives. In academia, for example, particularly at law schools, the faculty are overwhelmingly liberal. This is not to say that the views of these professors – or liberals generally – lack merit. It is to say, however, that when you surround yourself with and continually hire people who mostly think like you, opposing perspectives seem so foreign and ‘wrong’ that it precludes meaningful discourse and discourages people from offering diverse viewpoints. Anyone who is a law professor that admires Justice Antonin Scalia – and originalism – will certainly relate. And anyone who has been on the receiving end of students trying to shout you down because you are offering a perspective with which they disagree will likewise relate

2.    A lack of humility – and the failure to admit that you might be wrong

Not everything is about you.

If you’re so self-absorbed that you cannot see past yourself and empathize with others, you cannot form true human connections, make an impact on others’ lives, or make meaningful improvements in your own life. Sadly, inflated egos and narcissistic personalities are prevalent in society, and such people – and personalities – are incredibly toxic. These people almost always think that they are ‘right’ on every issue. They ignore inconvenient facts. They cherry-pick data and evidence to suit their narratives. They hurl insults at those with whom they disagree.  Put simply, they cannot fathom the possibility that maybe, just maybe, their views are inaccurate, incomplete, or incorrect. When a person thinks like that, reasonable discourse is impossible. And the truth is that no one is necessarily right about everything – or anything. It takes humility to listen more and talk less, and to realize that we all have much to learn about life and the law.

3.    Immaturity and weak mindsets

It’s amazing how many adults behave like children.

People have different experiences. They come from different backgrounds. They were raised in different environments. They have often suffered unique traumas and disadvantages. These and other experiences shape a person’s values and worldview which, while invariably different from others, are no less worthy of respect. In other words, not everyone thinks like you. And if you had grown up in their shoes, you probably wouldn’t think the way you do now.

So, grow up. The fact that others have different opinions does not make them wrong. It does not make them bad people. It does not make them immoral or invidious. It just makes them different.  And difference is the essence of diversity.

For example, if someone is pro-life, it doesn’t automatically mean that they have no respect for a woman’s bodily autonomy or liberty. If someone is pro-choice, it doesn’t mean that they sanction the killing of human life. It just means that they have different perspectives, which are informed by their personal experiences, including family upbringing and the overcoming of adversity. If someone voted for Donald Trump, it does not mean that the person is racist or unintelligent. It just means that they are different from you and those differences resulted substantially from, among other things, the environment in which they evolved. As stated above, if you grew up in their shoes, your opinions and worldview might be far different from the ones you have now.

If you take offense to or discriminate against those who have different opinions, then it is you who is the enemy of diversity.

4.    Hypersensitivity

Life is difficult. It is unfair. It is unjust. People can be terribly critical and judgmental, and they are often the ones who espouse the very virtues (e.g., tolerance and acceptance) that they lack.  But not every criticism is undeserved, and not every experience of unfairness or injustice is unbearable.

Successful people have strong mindsets. They have a positive thought process. They are mentally tough. They know how to respond to adversity. They realize that your choices, not your circumstances, determine your destiny. They don’t make excuses. They focus on what they can control, and they do not get distracted by external ‘noise.’ In short, they have thick skin while simultaneously treating others with kindness and empathy.

5.    The inability to listen and the unwillingness to learn

So many people just cannot shut up.

These folks often cringe or come quite close to a nervous breakdown when they confront opinions, facts, or evidence that undermine their subjective policy predilections or expose their personal biases. The inability to listen, however, only ensures the impossibility of engaging in respectful and meaningful discourse. Having listening skills is critical to building successful professional and personal relationships, and to creating an environment of mutual respect.

So, start listening more. You might learn something.

6.    Vilifying people personally because you disagree with them politically

It’s shocking how people resort frequently to personal attacks to demean and degrade those with whom they disagree. And it’s alarming how many people embrace simplistic narratives and dichotomies such as ‘good’ or ‘bad’ or ‘right’ or ‘wrong.’ Reality is far more complex and often resides in a gray area where no one can claim a monopoly on truth. If you have even the semblance of self-awareness, a modicum of maturity, and an ounce of humility, you know that attacking someone personally based on differences in opinion reflects insensitivity and intellectual dishonesty.

For example, people who supported Justice Brett Kavanaugh’s nomination are not necessarily vile sexists. People who supported Donald Trump are not necessarily ignorant racists. People who support Alexandria Ocasio-Cortez are not necessarily socialists. Likewise, people who support affirmative action do not necessarily believe in ‘reverse discrimination,’ and people who oppose affirmative action are not necessarily racist or privileged. They are just people who think differently than you. They are no better – and no worse.

In the end, our similarities and shared values far outweigh our differences, and the failure to embrace those similarities and respect those differences is corrosive to any society that values liberty and equality.

So, the next time you’re in a faculty meeting, a board meeting, a debate at a bar, or a discussion in a classroom, be open to new perspectives. Choose to truly embrace diversity.

November 6, 2022 in Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Tuesday, November 1, 2022

Shortcomings in Arguing Original Public Meaning

From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?

Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.

Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.

However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding our Constitution.”

Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.

We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.

There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.

November 1, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)