Appellate Advocacy Blog

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

Monday, February 26, 2024

(Nearly) Everything You Need to Know About Legal Writing You Learned in Kindergarten

My almost six-year-old is in the middle of learning to read and write in kindergarten. I love seeing him pick up books around the house and start reading. He has also brought home several writing projects.  As I watch him learn to write and hear his teacher’s pedagogical approach to reading and writing, I am discovering that some key points that I try to teach the “big kids” (aka—my law students) find their origins in kindergarten.

Point 1: Tell a story. Much of my son’s writing accompanies some sort of picture. The goal is to draw a picture and then write a story that describes the picture. This is not dissimilar from the approach my son’s teacher has used with reading—kids are encouraged to use “picture clues” to help identify unknown words.  Similarly, storytelling is an important aspect of legal writing. Legal writers can use various parts of a brief—like the introduction or the statement of the facts—to paint a word picture about their client. Increasingly, it is becoming more acceptable for legal writers to even use actual pictures in briefs to show the judges key aspects of a case.  Likewise, in the argument section of a brief an author might use writing conventions like analogy and metaphor to help the audience understand key legal principles.

Point 2: Think about the role of punctuation. A few months ago when my son and I were reading together, he paused when we came to a set of quotation marks and informed me that the words in the quotation marks needed to be read in a different voice. He then proceeded to create a voice for the character and read the words. I was impressed that he recognized the role of quotation marks in a story. He is starting to recognize other forms of punctuation too.  For example, he knows that an exclamation point signifies emphasis. We haven’t started on the Oxford comma yet, but it is only a matter of time.

Punctuation plays such a key role in legal writing. While judges probably don’t read the quotations in your briefs using character voices, they do expect your quotations to be accurate and relevant.  Your reputation depends on it.  They also expect you to use limited quotations—only directly quote key language that can’t be summarized, like contract or statutory language. Long block quotes just don’t get read.  Other aspects of punctuation are important too—the Oxford comma, limiting the use of emphasis, and the proper use of dashes. If you need a refresher on punctuation, I highly recommend my colleague Diana Simon’s book The (Not too Serious) Grammar, Punctuation, & Style Guide to Legal Writing.

Point 3: Watch your capitalization. While my son generally understands that there are capital and lower-case letters, he uses them inconsistently. He is just starting to understand that sentences start with capital letters, as do some words. One of my major pet peeves when it comes to legal writing is the inconsistent use of capitalization. I consider myself to be a capitalization minimalist—when in doubt, don’t capitalize! However, I tell my students that I will generally only mark things incorrect if they are inconsistent when they capitalize. So, if you decide to capitalize something in your brief, be consistent.  It will make your brief look more polished.

Point 4: Think about the aesthetics of the page. Kindergarteners struggle with writing an aesthetically pleasing page. If I give my son a piece of unlined paper, his words and letters vary widely in size. With lined paper, his letters are more consistently sized, but he struggles with spacing between words. His words are either too close together or too far apart. His teacher has popsicle sticks in the classroom that he and his classmates can use to leave proper spacing between words—she calls them “spacemen.”

While I want to write an ode to two spaces after a period for this point, I am going to resist.  Rather, legal writers need to be mindful about how their words appear on a page, especially in the age of the digital reader. Pages should include sufficient blank or empty space to not overly stress the eyes. Paragraphs should be short.  Spacing should be proportional. A nicely formatted brief that complies with court rules makes a great first impression.

Point 5: Do you own work. A few weeks ago my son brought home a worksheet that had a small section crossed out. His teacher had written a note that he had copied off a friend. It was pretty apparent that the friend he had copied from was not as strong of a writer. Trying to suppress laughter, we talked to our son about the importance of doing your own work. Similarly, legal writers need to do their own work. That means don’t plagiarize and don’t blindly rely on AI. If your name is on a brief, you should feel 100% confident about every case citation and legal principle. Your reputation depends on it.

February 26, 2024 in Legal Writing | Permalink | Comments (1)

Sunday, February 25, 2024

Lessons in Advocacy from the Trump v. Anderson Oral Argument

Oral argument in Trump v. Anderson, the ballot eligibility case from Colorado pending in the Supreme Court, received enormous public attention – as well as attention from other contributors to this blog. Regardless of what you think of the merits of the case (I filed an amicus brief on behalf of Professor Kermit Roosevelt of the University of Pennsylvania Law School that I will describe at the end of this post), the pre-argument assessment of the University of Texas law professor Steven Vladeck seemed accurate: constitutional law was likely to give way to constitutional politics. In this post, however, I want to focus on the oral argument. Despite how well the advocates did on many levels, the difficulty of the case and the predisposition of the justices made some responses surprisingly insufficient.

Former President Trump’s counsel, Jonathan Mitchell, benefited from a heavy dose of softball questions – and little follow up as it became obvious early on that he would prevail, even if not on any ground he argued. He had chosen to rely heavily on the argument that the presidency is not an office subject to disqualification under the Fourteenth Amendment. Justice Kagan prefaced one question by declaring that she could think of many good reasons why those who wrote Section 3 would want to cover the presidency, but wanted to know what rationale would support exclusion of it as a policy choice.

Mitchell’s response admitted that no good rationale exists to exclude the presidency but that the language probably represented some unknown compromise. He added, “In a compromise, everyone goes away miserable,” but that we have to follow the text, which he claims supports his view.

That response seems wholly unsatisfactory, built, as it is, on speculation that deserves no credit. As Mitchell otherwise conceded, “one would think, of all offices, the presidency would be the one you’d want to keep out the Confederate insurrectionists. That’s the commander-in-chief of the Army.” Amicus briefs from history scholars established that the presidency was covered – and that no one supported a different view. Yet, Mitchell’s shrugging response got no pushback or further exploration by any justice. For a majority on the Court that usually insists on original public meaning, Mitchell’s explanation should have sounded hollow. The justices were similarly uninterested in diving deeper into the claim that it was impossible to assign a meaning to the term “insurrection.”

Jason Murray, who represented the voters who sought to knock Trump off the ballot in Colorado, faced a hostile bench. It is always difficult to respond to a Court set on reaching a result contrary to your position, even when the judges struggle to find a common rationale. Yet, one premise behind questions raised by Justice Kagan and Chief Justice Roberts required a response, where none was given. Both members of the Court stated as a fact that it would seem odd that the Fourteenth Amendment, intended to restrict the States, would empower a State to disqualify a presidential candidate, which then led them to raise difficult questions about state authority, which provides the most likely ground for reversal.

Murray did not challenge the underlying premise of their questions, however – and he should have. Certainly, to the extent that the Fourteenth Amendment imposed the privileges and immunities of national citizenship on States, required them to observe equal protection and due process, and, eventually, comport their actions with the Bill of Rights, the Fourteenth Amendment can be seen as restricting on State authority. However, at the same time, the Amendment empowered the state courts to enforce those same rights. A state court does not require congressional approval before it finds that a law or government action, federal or state, violates equal protection or due process. Why would that expectation be any different for any other part of the Fourteenth Amendment, including its disqualification clause? The Constitution always expected state judges and state courts to abide by the supreme law of the land and enforce its requirements. The extension of rights in the Fourteenth Amendment also necessarily empowered state courts to enforce it.

Moreover, as amorphous as the concept of due process remains after centuries of precedent stretching back to Magna Carta, why would state courts have any greater difficulty interpreting “insurrection” and applying it without congressional guidance. Yet, if congressional guidance was needed to assist with determining whether January 6 and Trump’s role in it amounted to insurrection, ample expression of congressional thinking, both at the time of the Fourteenth Amendment’s ratification and today, exist. Briefs detailed the legislative history of the provision. And the January 6 Committee report was evidence in the trial on that score in a Colorado courtroom. Finally, a majority of Congress found that Trump’s actions on January 6 constituted an impeachable offense, even if the 57 Senators who voted that way were short of the two-thirds necessary for removal from office. Since only a majority is needed for the type of legislative guidance, which Mitchell told the Court was necessary as a result of Griffin’s Case, that majority, specific to the question in this case, existed, having heard evidence more comprehensively than when legislation is usually considered.

I have no illusions that this type of pushback would likely change the result. Much of it existed in the amicus briefs filed. Instead, simply as a matter of appellate advocacy, it seems important to make points like that in response to a court’s assumptions. It may have no effect, but it also could create some hesitation on the part of the Court to make sweeping but erroneous declarations in the opinion that is issued and create a precedent for what is too facile a reading of the Constitution.

N.B.: The amicus brief I filed largely addressed two issues. First, that the debate over whether Section 3 is self-executing misunderstands the inquiry. The Constitution and the Fourteenth Amendment sets standards to be implemented. No State shall deny equal protection or due process, for example. And no person who has taken an oath to support the Constitution (which logically includes those who took an oath to “preserve, protect and defend” the Constitution) and has engaged in insurrection shall hold office. The next question, then, is not whether Congress, which cannot enhance or diminish the Constitution’s command, puts it into effect, but whether a mechanism exists to bring an alleged violation before a court of law. Colorado election law provides such a mechanism, according standing to voters like the plaintiffs in this case.

Second, the brief addressed misunderstandings about Griffin’s Case. The case, in which Chief Justice Salmon Chase wrote the opinion while riding circuit, addressed whether a judge, who had served in the Confederacy and should not hold office under Section 3, could issue a valid criminal conviction and sentence. Chase’s narrow decision found that such a collateral attack on the judge’s authority could not be mounted in this case involving a manslaughter charge without congressional authorization. It did not suggest state law would suffice, likely because the case arose in Virginia which, at the time, had “no legal state government[]” under the First Reconstruction Act. Moreover, as was noted at oral argument and in other briefs, the framers of the Fourteenth Amendment, as well as Chase, agreed that Jefferson Davis was disqualified without congressional action from public office, including the presidency. Congress believed so too, because it was argued that the Amnesty Act of 1872 was flawed because its removal of disqualifications would allow a party to nominate Davis to the presidency or vice presidency.

Moreover, claims made during the oral argument that Griffin’s Case served as the basis for the Enforcement Act of 1870 ignore that the Act was drafted before the decision in the case and that key provisions were reenacted from an 1862 Act that predated the case, thereby undermining Mitchell’s claim that the 1870 Act created statutory preemption for State enforcement (even though it was repealed in 1948).

Still, with the decision seemingly preordained, my hope is that whatever opinion is issued does not fracture the history or establish background principles that like early interpretations of the Fourteenth Amendment skew its construction in ways that creates problems in the future.

February 25, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, February 18, 2024

Reflections on the Supreme Court’s Oral Argument in Trump v. Anderson

The oral argument in Trump v. Anderson indicated that the United States Supreme Court would reverse the Colorado Supreme Court’s decision disqualifying Donald Trump from the ballot.[1] In fact, the Court’s decision will likely be unanimous for three reasons.

1.    Affirming the Colorado Supreme Court's decision would enable states to disqualify different candidates and thus create a lack of uniformity among the states regarding which candidates voters could select. 

If the Supreme Court affirmed the Colorado Supreme Court’s decision, then Texas and other conservative states could disqualify President Biden from the ballot based on whatever subjective definition of insurrection they adopted, while liberal states could likewise disqualify Donald Trump. Imagine living in a world where, for example, ten states prohibited its citizens from voting for Trump while eight states prohibited its citizens from voting for Biden. Such a result would disenfranchise millions of voters and, as Chief Justice Roberts stated, enable a handful of states to decide the presidential election. Nothing could be more anti-democratic, at “war with the thrust of the Fourteenth Amendment,” and anathema to a society that values free and fair elections.[2]

Indeed, the justices recognized that affirming the Colorado Supreme Court’s decision would be far-reaching and fundamentally anti-democratic. For example, Justice Alito asked Jason Murray, the respondent’s attorney (and an outstanding lawyer), whether a state court could exclude from the ballot a presidential candidate that the court did not prefer simply because the candidate was leading in the polls. Murray answered in the affirmative – and that all but sunk Colorado’s argument.

The justices also suggested that the Colorado Supreme Court’s decision was contrary to the Fourteenth Amendment’s original purpose. As Chief Justice Roberts emphasized, the Fourteenth Amendment was designed to expand federal power and restrict state power. Thus, to conclude that the states have the power to disqualify federal candidates – particularly where the disqualification is predicated on an ambiguous provision – would be incongruous with the Fourteenth Amendment’s original purpose. For these and other reasons, Justice Kagan and Justice Barrett suggested that the question of whether a former president is disqualified for insurrection “sounds awfully national,” which is consistent with Section Five’s text, which gives Congress, not the states, the power to implement Section Three, and with the principle that there be uniformity among the states regarding who voters may select for president.[3]   

2.    Section Three of the Fourteenth Amendment is ambiguous and should not be construed to frustrate democracy.

Justice Kavanaugh and Justice Jackson explained that, unlike the Constitution’s age and nationality requirements, which are categorical and unambiguous, Section Three was susceptible to different interpretations and therefore should not be construed in an anti-democratic manner. For example, Justice Kavanaugh noted that the word “insurrection,” is broad and that Section Three contained no information concerning the procedures needed to determine whether a president was an insurrectionist. Likewise, Justice Jackson expressed concern that the President of the United States may not be an “officer of the United States” because the plain language of Section Three does not include the word “President,” therefore suggesting that the president is not within Section Three’s purview.

Given the fact that Section Three is ambiguous, why, as Justice Kavanaugh and Justice Jackson emphasized, should the Court reach an outcome that frustrates rather than facilitates democratic choice? And how should the Court resolve the issue regarding a candidate’s disqualification if states adopt different definitions of “insurrection,” adopt different evidentiary rules, and adopt different standards of proof? Colorado’s attorneys had no satisfactory answer.

3.    Affirming the Colorado Supreme Court’s decision would enable one state to decide a presidential election.

Justice Kagan rightly emphasized that, if the Court affirmed the Colorado Supreme Court’s decision, one state (or a handful, as Chief Justice Robers noted) could decide the presidential election. To be sure, some if not many states would subsequently disqualify Trump from the ballot, making the Colorado Supreme Court the primary decision maker in the presidential election. Additionally, imagine if a presidential election was remarkably close and would be decided by the outcome in one state, but that state had disqualified Donald Trump from the ballot. This would give the presidency to Trump’s opponent and disenfranchise every voter in that state who supported Trump. Of course, some state courts could decide to distinguish the Colorado Supreme Court’s decision and therefore keep Donald Trump on the ballot, but even under this scenario, there would exist precisely the disuniformity that would compromise democratic choice.

Ultimately, the oral argument in Trump v. Anderson suggests that the Supreme Court will unanimously reverse the Colorado Supreme Court’s silly decision.

What was most disappointing was to see well-respected constitutional law scholars, such as J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, and Laurence Tribe, a professor at Harvard Law School, so vehemently advocating for affirmance of the Colorado Supreme Court’s decision. Judge Luttig argued that the decision was unassailable, that Section Three’s text was unambiguous, and along with Professor Tribe, that affirming the Colorado Supreme Court’s decision was vital to preserving democracy.[4] To make matters worse, these scholars relied heavily on the Report of the January 6 Committee, even though the January 6 hearings included only committee members that were biased against Trump and even though the committee adhered to none of the evidentiary standards that a trial – and due process – requires. The fact that Judge Luttig and Professor Tribe relied on this report and championed a decision by the Colorado Supreme Court that, given the text and history of Section Three, was so obviously wrong, is troubling.

Lest there be any doubt, imagine a world in which states could disqualify candidates based on different interpretations of Section Three, different evidentiary standards, and different burdens of proof. The result would be to allow one or more states to determine the presidential election based on nothing more than disdain for a presidential candidate, and to disenfranchise millions of voters by prohibiting them from voting for their preferred candidate. That would be as anti-democratic as you can get.

Thankfully, the U.S. Supreme Court recognized this and is poised to unanimously reverse the Colorado Supreme Court’s silly decision. Democracy depends on them doing so – and they will.

 

[1] See Trump v. Anderson, Oral Argument, available at: Trump's 2024 ballot eligibility being weighed by Supreme Court | full audio (youtube.com)

[2] Id.

[3] Id.

[4] See, e.g., Enormously Important Protection of Democracy: Tribe and Luttig on CO Barring Trump from Ballot (Dec. 21, 2023), available at: ‘Enormously important protection of democracy’: Tribe & Luttig on CO barring Trump from ballot - YouTube

February 18, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, February 17, 2024

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

When I was an experienced associate at a large appellate boutique, and then of counsel in a large law firm’s appellate department, attorneys at my level often offered trial court motion arguments and non-appellate brief writing to junior attorneys who were hungry for experience.  While our offers were not always completely altruistic—like when we offered “interesting” emergency weekend writs to others—we were genuinely invested in helping junior attorneys gain needed experience to better serve our clients.

In 2020, three U.S. District Judges for the Southern District of Illinois, Judge Nancy Rosenstengel, Judge Staci Yandle, and Judge David Dugan, issued orders encouraging the participation of "newer, female, and minority attorneys" in oral arguments.  As Reuters reported, under the orders, “parties can alert the judges if they intend to have a less-experienced, female, or minority attorney argue a motion.”  See Nate Raymond, Republican US Senators Seek Info on Illinois Judges' Diversity Policies, Reuters (Feb. 8, 2024).   The “judges in turn ‘strongly consider’ giving extra time for oral argument and allowing more experienced attorneys to provide the newer” counsel assistance.  Id. 

Last week, Reuters, Bloomberg Law, and Law360 all reported that a conservative legal group and two Republican U.S. Senators recently complained about the three judges’ efforts.  See Raymond, Republican US senators; Suzanne Monyak,

Courtroom Diversity Orders From 2020 Probed by GOP Senators, Bloomberg Law (Feb. 9, 2024); Courtney Buble, GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Args, Law360 (Feb. 7, 2024).  According to Stephen Miller’s organization, America First Legal, the three Southern District of Illinois judges committed misconduct by discriminating based on race and sex in the standing orders.  Here is America First Legal’s misconduct complaint to the Seventh Circuit.  Following the America First Legal complaint, two Senators on the Senate Judiciary Committee, Senators Cruz and Kennedy, wrote to the Chief Judge of the Seventh Circuit asking for more information about the standing orders.  Their letter is here.  The gist of both communications is that the three judges’ standing orders give an illegal preference through a facially discriminatory policy. 

As we wait for the Seventh Circuit to weigh in on the First America Legal complaint and the letter from the Senators, we might see other similar policies challenged.  For the past six years, the American Bar Association “has urged courts to implement plans to give new lawyers courtroom experience,” and in 2023 “passed a resolution calling on courts to allow two attorneys to argue for each client to foster that goal.”  Raymond, Republican US Senators.  Most court rules following the ABA’s resolution are facially neutral, but not all.  See generally Buble, GOP Sens

Whatever the fate of the three Southern District standing orders, experienced lawyers should  work to be stronger mentors.  We can offer argument and writing time to junior attorneys and underrepresented minorities whenever it’s possible to do so while still serving clients’ needs.  In this way, we’ll help the profession, and we might avoid some of those weekend emergency writ-drafting sessions at the same time. 

February 17, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Wednesday, February 14, 2024

Judicial Ethics Beyond the U.S. Supreme Court

Concerns about the absence of any applicable judicial ethics standards to justices of the U.S. Supreme Court grew into loud demands for an ethics code last year. The result was the adoption of a code largely consistent with the one applicable to federal judges generally, although it contained some important exceptions and also lacked any enforcement mechanism. As a result, recusal remains an individual decision for each justice with only vague and voluntary guidance.

Even though the rules may seem more clearly defined in other courts, surprisingly, issues remain. In 2009, the U.S. Supreme Court issued a decision in Caperton v. Massey, which applied the Fourteenth Amendment’s due process clause to judicial recusal. Brent Benjamin had won election as a justice to the West Virginia Supreme Court of Appeals. Substantial independent expenditures by a party in the case likely helped Benjamin’s candidacy. He nonetheless refused to recuse and argued that the money did not come to him, did not necessarily help his campaign, and did not affect his vote in favor of his so-called benefactor. Disagreeing, the U.S. Supreme Court ruled that the “risk of actual bias” was serious enough “based on objective and reasonable perceptions” that recusal was mandatory.

Although Caperton seemed to establish a standard that erred in favor of recusal, high court justices often determine for themselves whether they should be recused and adopt a personal standard. In one case I had in that same West Virginia court, I asked a justice to recuse himself after he had campaigned on a pledge to uphold the law I was challenging in remarks during his campaign to the group that had lobbied in favor it. He initially denied the motion for recusal, writing a statement about how he had First Amendment rights. Subsequent press coverage, quoting ethics experts who agreed that recusal was warranted, caused him to rethink his position and agree to recuse himself.

Today, the recusal issue is squarely presented in a case pending in the Ohio Supreme Court. Justice Joe Deters joined the Court a year ago after a career largely spent as a county prosecutor. The Court heard oral argument in State v. Glover on February 7. In a bench trial, a judge found Glover guilty of aggravated robbery and kidnapping after a crime spree in which he forced individuals at gunpoint to take him to an ATM, where he robbed them. The judge gave an aggregate sentence of 60 years for the multiple felonies with consecutive sentences. An appellate court found error in the sentence, ordering it reduced to an aggregate of 25 years. The State brought the case to the Ohio Supreme Court.

Justice Deters chose not to recuse himself, despite having served as lead counsel in the prosecution of Glover just two years ago. Ohio Rule of Judicial Conduct 2.11(a) requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Among the specific examples of circumstances warranting disqualification are: (1) having “personal knowledge of facts that are in dispute in the proceeding” and (2) the judge “act[ed] as a lawyer in the proceeding.”

Even though the issue is now a larger one than the underlying case and concerns the criteria applicable to sentencing when multiple crimes are committed, any decision will determine the length of Glover’s incarceration. It seems clear that Justice Deters has “personal knowledge of facts in dispute” and “act[ed] as a lawyer in the proceeding.” Moreover, the case was argued by Deters’s former co-counsel, which also requires disqualification. Given that the appearance of impropriety suffices to disqualify, the decision against recusal comprises an affront to due process. At oral argument, only Deters asked no questions. His silence, however, does not cure the problem.

As with Caperton, the potential exists for this case to land in the U.S. Supreme Court. If the Ohio Court of Appeals is reversed, particularly if Deters’s vote is decisive, Glover’s appointed counsel could raise Fourteenth Amendment due process objections. No one should miss the irony of a Court where recusal is entirely voluntary deciding when it should be mandatory for others.

February 14, 2024 in Appellate Court Reform, Appellate Justice, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 13, 2024

Arguing the Unprecedented

During the first year of law school, most of us learned about “stare decisis” (or the doctrine of precedent) and which authorities are binding and which are merely persuasive.  We were taught a hierarchy of authority and how to effectively use various decisions to advocate on behalf of a client.  And I suspect many of our professors suggested that policy arguments were on the weaker end of the spectrum and should be relied on only if insufficient precedent existed to draw from.

But listening to the oral arguments in Trump v. Anderson[i] got me thinking about the value of policy arguments and whether our priorities are misplaced.  While stare decisis certainly lends a great amount of predictability to the legal system, it works only if there is, in fact, precedent to draw upon.

Jason Murray, counsel for Anderson et al., was asked on multiple occasions by Justice Thomas for any examples he could produce to support his argument that a state has the authority to disqualify a national candidate.  And Jonathan Mitchell, counsel for Trump, relied almost exclusively on a single case:  In re Griffin, 11 F. Cas. 7 (C.C.D. Va. 1869), which Justice Sotomayor directly noted “was not a precedential Supreme Court decision.”

The case is unprecedented in a multitude of ways:

  1. Trump is the only former president other than George Washington who did not take an oath to support the Constitution.[ii]
  2. Section 3 of the Fourteenth Amendment has never been used to block a presidential candidate from a ballot.
  3. No case has ever interpreted whether the president falls within the scope of § 3.[iii]
  4. No case has determined what process, if any, is due with respect to the determination of whether a person “engaged in insurrection” for purposes of § 3.

Even the Griffin case, upon which Mitchell hung his hat, is not all that instructive or persuasive.  Griffin was a habeas action wherein the petitioner sought to have his conviction vacated because the judge who presided over his trial had been a sympathizer of the Confederacy.[iv]  The petitioner argued that § 3 was self-executing, resulting in the judge being a usurper of his position without legal authority to sit on any cases or render any judgments.[v]  The petitioner’s end game was to vacate his conviction as void; he expressly disavowed any effort to remove the judge from his position, much less prevent the judge from running for office at a later date.[vi]  And, even the opinion’s one relevant holding—that § 3 is not self-executing and, instead, requires action by Congress—is weak precedent given that Chief Justice Chase (who authored the decision) held exactly the opposite only a couple years later in the trial of Jefferson Davis for treason.[vii]  Judge Wynn of the Fourth Circuit recently noted that the contradictory holdings in both Griffin and Davis “make it hard to trust [Justice] Chase’s interpretation.”[viii]

This absence of precedent left the parties with two options:  statutory interpretation and policy justifications for their respective positions.  While there were certainly legitimate statutory interpretation arguments available,[ix] others depended upon legislative intent, using such disfavored canons of construction as “expressio unius est exclusio alterius,”[x] or remarks from one of the drafters.[xi]

But the main sticking point that most of the Court kept coming back to was ultimately a policy-based issue:  “why [should] a single state . . . decide who gets to be president of the United States”?[xii] Though a decision has not yet been handed down in the case, and the Court has numerous legal grounds upon which to base its decision, it may very well be this unanswerable question that drives the outcome at the end of the day—even if not expressly included in the language of the Court’s opinion.

By many measures, we live in unprecedented times. “Unprecedented” was even the People’s Choice Word of the Year for 2020 according to Dictionary.com.[xiii]  It seems inevitable that more and more legal issues will be unprecedented as well.  Perhaps our policy-based arguments should play a more prominent role.

 

[i] https://www.oyez.org/cases/2023/23-719.

[ii] The presidential oath contains an oath to preserve, protect, and defend the constitution:  “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my ability, preserve, protect and defend the Constitution of the United States.”  But it does not contain an oath to “support the Constitution” as is contemplated by § 3 of the Fourteenth Amendment.  The oath for the vice presidents, senators, representatives, and other federal employees, on the other hand, does include an oath to support the Constitution:  “I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”  Inauguration of the President of the United States, available at:  https://www.usa.gov/inauguration (last accessed Feb. 12, 2024).  Because Trump never served in Congress or held any other federal office before becoming president, he was never required to take an oath to support the Constitution, making his position unique and unprecedented even among other former presidents.

[iii] Arguably, there is precedent that § 3 was applied to “a” president (at least nominally) insofar as it was applied to Jefferson Davis, former president of the Confederate States of America. In re Davis, 7 F. Cas. 63, 89 (C.C.D. Va. 1871). But, even there, Davis fell within the scope, not as a president, but because he had taken an oath to support the constitution as a former member of the United States Congress in 1845.  Id. at 90.

[iv] In re Griffin, 11 F. Cas. 7, 12 (C.C.D. Va. 1869).

[v] Id.

[vi] Id. at 14-15.

[vii] In re Davis, 7 F. Cas. 63, 89 (C.C.D. Va. 1871) (holding that § 3 “executes itself, acting proprio vigore.  It needs not legislation on the part of congress to give it effect. From the very date of its ratification by a sufficient number of states it begins to have all the effect that its tenor gives it.”).

[viii] Cawthorn v. Amalfi, 35 F.4th 245, 278 n.16 (4th Cir. 2022) (Wynn, J., concurring). Judge Wynn also noted that neither Griffin nor Davis were binding because, even though Justice Chase was then the Chief Justice of the United States, both decisions were made while he was acting as a circuit judge.  Id.

[ix] The parties argued about the meanings of the phrases “office . . . under the United States” and “officer of the United States” by comparing the meanings of the same or similar phrases in other parts of the Constitution.

[x] The canon “expressio unius est exclusio alterius” means “to express or include one thing implies the exclusion of the other.” Expressio Unius Est Exclusio Alterius, Black's Law Dictionary (11th ed. 2019). This idea was used to argue that, by expressly including positions other than the presidency from the list of those upon whom § 3 operates, the drafters intended to exclude the presidency from its scope.  This canon “does not apply to every statutory listing or grouping; it has force only when the items expressed are members of an ‘associated group or series,’ justifying the inference that items not mentioned were excluded by deliberate choice, not inadvertence.”  Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).

[xi] In response to a question from Justice Jackson as to why the drafters omitted the president from the list if they, in fact, intended the presidency to be covered, Murray noted that one of the drafters, in response to a question about why neither president nor vice president were included in the list, indicated that they were covered by the phrase “any office under the United States.” Later, in response to similar questions from Justice Jackson, Mitchell seemed to agree, stating that “there is some evidence to suggest that [the presidency was what they were focused on]” and one draft of § 3 “specifically mentioned the presidency and the vice presidency.” https://www.oyez.org/cases/2023/23-719.  But “the contemporaneous remarks of a single legislator who sponsors a bill are not controlling in analyzing legislative history.”  Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 118 (1980).

[xii] Justice Elena Kagan, oral argument in Trump v. Anderson, available at https://www.oyez.org/cases/2023/23-719.

[xiii] https://www.dictionary.com/e/peoples-choice-word-of-the-year-2020/.

February 13, 2024 in Appellate Advocacy, Appellate Practice | Permalink | Comments (0)

Monday, February 12, 2024

Do Politics Matter?

Happy post-Superbowl Monday (a day that I think should be a federal holiday, but that is a post for another time).

Over the weekend I received an email about a recent paper written by Harvard Law Professor Alma Cohen. Prof. Cohen's paper is an empirical study that shows the political affiliation of federal appellate judges can help predict the outcome in some cases. From the abstract:

This paper contributes to the long-standing debate on the extent to which the political affiliation of federal circuit court judges, as proxied by the party of their nominating president, predicts case outcomes. I compile and analyze a novel dataset containing more than 650,000 circuit court cases from 1985 to 2020. I find a pervasive association between political affiliation and outcomes in the vast universe of circuit court decisions that is not limited to the ideologically salient cases or published cases on which previous research has focused. The political composition of circuit court panels, I show, has a broad impact on practically all fields of US federal law.

In particular, I find an association between political affiliation and outcomes in each of the six categories of cases between litigants that judges could perceive as having unequal power. These categories include cases in which the government litigates against criminal defendants, prisoners, and immigrants, and cases in which individuals litigate against institutions. In each of the six case categories that I identify, the more Democratic judges a panel has, the higher the odds of the panel siding with the seemingly weaker party.

Furthermore, political affiliation is associated with outcomes in the large set of civil cases between parties that could be perceived to be of equal power. In these cases, panels with more Democratic judges are less likely than panels with fewer Democratic judges to defer to lower-court decisions.

Altogether, my analysis shows that political composition can help to predict outcomes in case categories that together represent over 90% of all circuit court cases. I conclude by discussing the implications of my findings for understanding the evolving body of decisions issued by circuit courts and for assessing the legal rules and arrangements that govern such courts.

A two interesting points from the paper. First, Prof. Cohen uses an exceptionally large sample of cases (670,000)--significantly larger than samples used in previous studies. She also includes unpublished cases.  Second, Prof. Cohen recognizes that using the politics of the appointing president might be an imperfect proxy for the politics of the judge. I agree. To the extent that future research wants to look at this issue, I would recommend also looking at which party controls the US Senate and the political affiliation of the home state senators (less relevant for circuit court noms, but still relevant).

I look forward to seeing more papers from Prof. Cohen as she explores this topic.

February 12, 2024 | Permalink | Comments (0)

Saturday, February 3, 2024

The Colorado Supreme Court's Silly Decision

Recently, the Colorado Supreme Court, in a 4-3 decision, held that former President Donald Trump was not eligible to remain on the ballot for Colorado’s upcoming primary.[1] While this article will not dissect every aspect of the Court’s decision, it will focus on the principal grounds for the decision, its effect on democratic choice and, its impact on the judiciary’s institutional legitimacy.

The Colorado Supreme Court based its decision on three findings.

First, the Court held that, under Section Three of the Fourteenth Amendment to the United States Constitution, Trump was an “officer of the United States.”[2] A reasonable argument can be made, however, that Trump is not an “officer of the United States” because the Fourteenth Amendment, while mentioning “Senator” and “Representative,” never mentions “President,” and the text lists federal officials in descending order from “Senator” to “Representative” to civil or military office holder. Additionally, an earlier draft of Section Three included the word “President,” but it was deleted and not included in the final version. Furthermore, the historical record suggests that Section Three applies to appointed, not elected, positions.[3] At the very least, one can argue that Section Three is ambiguous concerning whether the president is included in that section.[4] The point is not to say that the Colorado Supreme Court’s decision holding that Trump is an “officer of the United States” is meritless. It is to say, however, that the text is susceptible to alternative interpretations. In such a situation, the Court should reach an outcome that furthers, not hinders, democratic participation, and that enhances, rather than reduces, democratic choice. The four justices in the majority, all appointed by Democratic governors, chose the opposite path.

Second, the Court held that former President Trump “engaged in” an insurrection. Surely, the events on January 6, 2020, were disgraceful and a sad moment in our country’s history. Thousands of citizens stormed the Capitol Building, destroyed property, threatened lawmakers, and caused harm that resulted in five deaths.[5] As despicable as this conduct was, however, a reasonable argument can be made that Trump neither incited this violence nor engaged in an insurrection. To begin with, in Trump’s January 6 speech, he told protesters to march to the Capitol “peacefully and patriotically.”[6] This language alone makes it difficult to assert, under Brandenburg v. Ohio, that Trump incited imminent and unlawful violence.[7] Additionally, what precisely did Trump do that constitutes “engaging in” an insurrection? Yes, Trump encouraged his supporters to “fight like hell,” but he also told his supporters to march “peacefully and patriotically" and he did ultimately call for the protestors to “go home.”[8] Thus, a credible argument can be made that Trump never “engaged in” an insurrection. Additionally, Congress has already codified insurrection in 18 U.S.C. 2383, which requires a criminal conviction before one can be deemed an insurrectionist. Trump has never been charged with, much less convicted of, insurrection, and on February 13, 2021, the Senate acquitted Trump of this charge.[9] If Trump had been charged, he would have, at the very least, been afforded the due process protections that were so conspicuously absent in the lower court in Colorado. Given the above facts, particularly the dearth of fair procedures in the lower court (e.g., no discovery, inability to subpoena documents, and no opportunity for a fair trial), how could the Colorado Supreme Court possibly hold that Trump “engaged in” an insurrection, the result of which was to eliminate the leading Republican presidential candidate from the Colorado primary and thus undermine democratic choice? The answer should seem obvious – and that answer has nothing to do with the law or the Constitution.

Third, the Colorado Supreme Court held that Section Five of the Fourteenth Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” was self-executing and thus enabled the Court to adjudicate whether Trump engaged in an insurrection and could be disqualified from the ballot.[10] Certainly, one could argue that, in mentioning Congress in Section Five, the drafters did not mean to give Congress exclusive authority to enforce Section Three. But one could also argue that the text could not be clearer: only Congress has the power to enforce Section Three, which it did when enacting 18 U.S.C. 2383 and which, as stated above, requires a criminal conviction for insurrection – a crime for which Trump was never charged. Yet again, the Colorado Supreme Court ignored these facts and, unlike every state court that previously considered this issue, made the unprecedented and decidedly undemocratic choice to hold that Trump was disqualified from the ballot.[11]

Does it seem correct that the Constitution’s drafters believed that a state court could adjudicate a matter where the liberty interest at stake was so substantial yet the procedures for determining whether to deprive a citizen of that interest were so truncated? Of course not. This is particularly true considering that the district court's decision that Trump had engaged in an insurrection was based largely on the findings of the January 6 Committee, which selectively called witnesses, admitted hearsay evidence, and otherwise observed none of the procedural safeguards that a trial requires. Yet, at every turn, whether it was deciding if Trump was an “officer of the United States” or had “engaged in” an insurrection, or whether Congress had the exclusive authority to enforce Section Three, the Colorado Supreme Court ruled against Trump. In so doing, the Colorado Supreme Court made originalism its best friend even though its justices are anything but originalist. Convenience obviously trumped conviction.

As stated above, this is not to say that a particular interpretation of Sections Three and Five is superior to another. It is to say that when reasonably alternative interpretations of a constitutional text or statute are possible, courts should reach outcomes that promote democratic choice and participation.[12] Viewed in this light, the Colorado Supreme Court’s interpretation of the Fourteenth Amendment and resulting decision was entirely unreasonable. The courts in Michigan, Minnesota, Oregon, Nevada, and Rhode Island, which dismissed lawsuits that could have resulted in Trump’s disqualification from their respective ballots, got it right.[13] 

The Colorado Supreme Court could not have honestly believed that its decision preserved democratic choice or protected democracy. Furthermore, like any rational person, the Colorado Supreme Court – whose justices were all appointed by Democratic governors – must have known that its decision would be controversial, invite chaos and uncertainty into the electoral process, engender charges of partisanship and election interference, foment division, further erode public trust in the judiciary and rule of law, and fuel the belief that it was motivated by the desire to prevent Trump from regaining the presidency. After all, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone believe that the Colorado Supreme Court would have reached the same result? If you believe that the answer is yes, you probably also believe that Letitia James and Fani Willis (whose days prosecuting Trump may soon be numbered), acted impartially and with reverence for the law when they sought indictments against Trump based on tenuous legal theories, and in jurisdictions that are so overwhelmingly liberal that a fair trial is a fantasy.  Additionally, the Colorado Supreme Court surely must have known that the United States Supreme Court would almost certainly overturn its decision, particularly on due process grounds.

Given these facts, and given that the provisions upon which the Colorado Supreme Court’s decision was based were subject to alternative and equally reasonable interpretations, how could the four democratically appointed justices have thought this decision was a good idea? How could they believe that, in an era where some believe that democracy is “at risk” and “on the ballot,” this decision would not engender claims that it was an anti-democratic and politically motivated attempt to eliminate Trump from the presidential race? The truth is that the majority engaged in politics, not law, and was motivated by emotion, not reason. They were striving to find any path, however implausible, to reach an outcome that was pre-determined and fundamentally dishonest.

Not surprisingly, the usual suspects, including some law professors (the vast majority of whom are overwhelmingly liberal) and mainstream legal commentators, such as former Trump apologist George Conway, who believes Trump should spend the rest of his life in prison, have come out of the woodwork to support the Colorado Supreme Court.[14] Whether through law review articles, poorly written amicus briefs, or media interviews, these “experts” often use fancy words and legalese to create the veneer of objectivity and the pretense of neutrality when their motivations are anything but neutral or objective. And like the Colorado Supreme Court, these “experts,” who consistently criticize originalism in favor of “living constitutionalism,” have suddenly adopted originalism to support their arguments, even though they have spent much of their careers criticizing originalism – and Justice Antonin Scalia – as “racist,” “oppressive,” and a threat to those who value victimhood. Ultimately, one should be wary of individuals whose arguments so conveniently coincide with their personal beliefs.

Make no mistake: a political agenda that is rooted in a dysfunctional hatred of Trump and a disregard for the very democracy they claim to want to preserve and protect motivates these “experts.” As stated above, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone really think that Harvard Law Professor Laurence Tribe or any of the law professors who submitted amicus briefs in support of the Colorado Supreme Court's decision would take the same position? Of course not. And for those liberal scholars who chastise Trump for claiming that the 2020 presidential election was “stolen,” recall how vehemently some of these scholars questioned the result in Florida after the 2000 presidential election, and how they trashed the Supreme Court when the majority did not rule in favor of Al Gore. Likewise, remember when Stacey Abrams said after her loss in 2019, “[d]espite the final tally and the inauguration … I do have one very affirmative statement to make. We won.”[15] Also, one cannot forget Hillary Clinton repeatedly claiming that Trump was an illegitimate president.[16] These comments sound eerily like Donald Trump, don’t they? 

It should come as no surprise that the public has lost faith in the judiciary and our academic institutions. Sadly, the Colorado Supreme Court’s decision is only the tip of the troubling iceberg. In Dobbs v. Jackson Women’s Health, the U.S. Supreme Court decided to overturn a nearly half-century precedent – Roe v. Wade – because the political affiliations of the justices had changed, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg and Justice Brett Kavanaugh replacing Justice Anthony Kennedy.[17] And in Students v. Fair Admissions v. Harvard, the Court, once again armed with two new Republican-appointed justices, suddenly discovered that affirmative action programs were unconstitutional.[18]  In both cases, the justices were neatly and predictably split along ideological lines. In other words, the Constitution’s meaning is contingent upon the party affiliations of the justices.

The health of this country and its institutions is deteriorating. Citizens used to revere our public institutions, including state and federal courts, particularly the Supreme Court, admire professors for teaching and mentoring young people, and look to the media to report accurately and objectively on public events. People used to believe that intelligence trumped ideology, and that integrity trumped indoctrination. That is no longer the case. Donald Trump has exposed what lies behind the curtain of the institutions and academies that we once considered hallowed ground: dishonesty, ideological uniformity, hypocrisy, and intolerance. If you doubt this, walk into some law schools, and ask to meet with a conservative professor. You might get arrested, charged with a microaggression, and ordered to undergo “anti-bias” training (which studies have shown does not work). Try to give a presentation about originalism at a law school and you might get shouted down by a mob of entitled, hyper-sensitive, and narcissistic students whose intelligence is eclipsed by their ideology. Indeed, some academic institutions focus more on indoctrinating students than teaching them critical thinking and writing skills, and welcoming diverse perspectives in the classroom.[19]

And they often show a shocking disregard for the very diversity, inclusion, and “safe spaces” that they claim to champion. For example, who would have thought that, at a congressional hearing in December 2023, the presidents of Harvard, MIT, and the University of Pennsylvania would fail to unequivocally and without hesitation condemn campus speech that called for the genocide of Jewish people? Who would have imagined that a law student at NYU – the president of the Student Bar Association – would be seen tearing down posters depicting the tragic loss of life to Israeli citizens and that administrators at various colleges would fail to immediately condemn Hamas’s despicable attack on Israel? Yet these are the same people who preach diversity and inclusion. It’s a disgrace, and the divisiveness that courts, the media, and academia have fomented in this country is nothing short of tragic. Civil disagreement is a vestige of the past, and collegiality is an aspiration, not a reality. Arrogance has taken precedence over humility, and hypocrisy has replaced honesty.

The United States Supreme Court will almost certainly overrule the Colorado Supreme Court’s decision – perhaps unanimously – and the Court will likely rely on, among other things, the lack of procedural due process afforded to Trump. In so doing, the Court should emphasize that the people, not the courts, should decide who becomes the next President of the United States. And if the people elect Donald Trump, so be it. It is preferable to have the people elect a candidate that you do not support than to have a court enable through dishonest means the election of a candidate that you do support.

After all, you believe in democracy, don’t you?

[1] See Anderson v. Griswold, available at: 23SA300.pdf (state.co.us)

[2] See U.S. Const., Amend. XIV, Section 3.

[3] See Trump v. Anderson, Amicus Brief, amicus brief of Johs Blackmun amicus brief) available at: 20240109145107356_23-719 Amicus Brief Professors Barrett and Tillman Final.pdf (supremecourt.gov)

[4] See Trump v. Anderson, Amicus Brief of Kurt T. Lash, available at: 20240116095552269_23-719 tsac Lash.pdf (supremecourt.gov)

[5] See Jack Healy, The Are the Five People Who Died in the Capitol Riot (Jan. 11, 2021), available at: These Are the People Who Died in the Capitol Riot - The New York Times (nytimes.com)

[6] See Brian Naylor, Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial (Feb. 10, 2021), available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[7] See Brandenburg v. Ohio, 395 U.S. 444 (1969).

[8] See Naylor supra note 6, available at: available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[9] See Anderson, supra note 1, available at: available at: 23SA300.pdf (state.co.us) (Samour, J., dissenting).

[10] See id.

[11] See id.

[12] See, e.g., Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Vintage, 2006).

[13] See Lawfare, Tracking Section 3 Trump Disqualification Challenges, available at: Trump Disqualification Tracker | Lawfare (lawfaremedia.org)

[14] See Ed Mazza, George Conway Slams Trump With All-Too-Blunt Prison Prediction (Jan. 10, 2024), available at: George Conway Slams Trump With Blunt Prison Prediction | HuffPost Latest News

[15] See Alex Schemmel, Tacey Abrams Says She ‘Never Denied the Outcome’ of 2018 Election Despite Past Claims (Oct. 5, 2022), available at: Stacey Abrams says she 'never denied the outcome' of 2018 election despite past claims | WPDE

[16] See CNN, Hillar Clinton Calls Trump ‘Illegitimate President,” available at: Hillary Clinton calls Trump 'illegitimate president' | CNN Politics

[17] 597 U.S. 215 (2022)

[18] 600 U.S. 181 (2023)

[19] See Eric Kaufmann, We Have the Data to Prove It: Universities are Discriminating Against Conservatives (March 5, 2021), We Have the Data to Prove It: Universities Are Discriminating Against Conservatives | Opinion (newsweek.com)

February 3, 2024 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)