Appellate Advocacy Blog

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

Saturday, January 15, 2022

Unconventional Writing Tips

The best writers know when to break the rules. They know when to forget everything they learned in legal writing and disregard conventional grammar and style rules. Simply put, they know when to be unique and original. Below are ten unconventional writing tips that can enhance the quality and persuasive value of a brief (or any type of writing) and highlight your authentic voice as a writer.

1.    Don’t write.

The best way to write an excellent brief, story, or script is to not write at all. Yes, you heard that correctly. Stay away from your computer. Avoid the temptation to write a revolting and blood-pressure-raising first draft simply because you want to “get something on paper.” That “something” will be the equivalent of nothing. Instead, spend time reading great writing.

Most importantly, think before you write. Brainstorm. Carry a small notepad with you and, among other things, write down ideas as they come to you and create an outline of your legal arguments. In so doing, be sure to reflect on your arguments and the likely counterarguments you will face. And remember that excellent thinking leads to excellent writing.

2.    Don’t let anyone read your first draft – or your final draft.

Some people believe that, after spending many hours on, for example, writing and rewriting an appellate brief, they cannot “see the forest for the trees” and need a set of “fresh eyes” to critique their work. The best writers know that this belief is often mistaken. Allowing others to review your writing can often do more harm than good; many suggested revisions reflect differences in style, not quality.

Additionally, many comments will be irrelevant or unhelpful, such as “did you cite the correct cases and check to make sure that they are still good law?” or “are there other counterarguments that you should consider?”

Yeah, whatever. Go away.

Others will offer annoying comments, such as “you should consider using the Oxford comma, and I also saw areas where maybe an em dash would have been appropriate” or “sentences should generally be no longer than twenty-five words but on page twenty, one of your sentences had twenty-seven words,” or “at least for me when I see a sentence with the passive voice, I hit the delete button immediately,”

Yes, and your comments about my writing have just been deleted.

The worst are the ones who offer ambiguous comments, such as “have you thought of restructuring the argument section?” or “in some instances, I thought your arguments were repetitive, but I could see where that might be effective,” or “in my opinion, the question presented doesn’t work because it seemed a bit wordy to me. But if you like it, keep it.”

None of this is helpful. If anything, it could cause you to overthink and doubt yourself. Worse, it could cause you to make changes that worsen your brief and weaken your voice.[1]

The moral of the story is that sometimes, too many cooks will spoil the broth. But if, for whatever reason, you must have someone review your writing, make sure you choose the reviewer carefully. In so doing, remember that one aspect of great writing is developing your unique style and voice as a writer, and not letting that style be compromised by others.

3. “Write drunk. Edit sober.”[2]

To be clear, this does not mean that you should consume a handle of Tito’s vodka when writing a first draft (a couple of glasses of Duckhorn sauvignon blanc should suffice). Rather, it means that you should be in a mindset where you can think freely and creatively without inhibition or reservation, and where you can coherently and concisely communicate your ideas.

If you aren’t in this mindset, your first draft may be gobbledygook. It may turn some people to stone. It may evoke images of the burning gym in the 1976 movie Carrie after Carrie finished exacting her revenge at the prom. And it may require you to delete everything on your computer screen and write another first draft. That may make you open that handle of Tito’s vodka, which is not advisable.

4.    Invent words.

Don’t be constrained by dictionaries. And don’t confine yourself to conventional or boring words. Rather, invent words – most commonly eponyms – that convey important ideas.

Think Obamacare.

Think Bushisms.

Think Californication.

What do these words do? The enhance the persuasive value of your argument. Indeed, a single invented word can implicitly convey arguments that so many attorneys feel the need to express explicitly. Think about it: when you hear Bushisms, it immediately brings to mind words that the former president invented, such as strategery. We all know the point that makes.

5.    Sometimes, throw IRAC/CRAC in the proverbial garbage.

In law school, particularly legal writing classes, students are taught to use the IRAC/CRAC (or CREAC) structure when drafting a brief. This is excellent advice and certainly helpful in many contexts.

Sometimes, however, the IRAC/CRAC formula can be, well, too formulaic. And it can undermine the persuasiveness of your legal analysis. This is particularly true where the facts are favorable to you and suggest strongly a ruling in your favor.

Consider the following examples of an introductory statement in a brief in a case where a defendant shot and killed another person with an AR-15 after the person, who was one foot shorter than the defendant, shoved the defendant and immediately thereafter began walking away. The defendant claimed that he was acting in self-defense.

Based on the relevant law and facts, the defendant’s self-defense claim lacks merit. It is well settled that a self-defense claim requires defendants to demonstrate that they subjectively believed that they were in fear of imminent grave bodily harm or death. Additionally, that belief must be objectively reasonable, meaning that a reasonable person would have feared that grave bodily harm or death was imminent. As such, disproportionate responses to a fear of harm do not constitute self-defense. Lastly, the claim of imperfect self-defense is not recognized in this jurisdiction. In this case, the defendant cannot…

Blah, blah, blah.

Why should a court have to endure this paragraph when: (1) the law of self-defense is well-settled in this jurisdiction, and (2) the facts show indisputably that the self-defense claim is utter nonsense? It shouldn’t. Blame CRAC. Then toss it out the window, get to the point, and write this:

The defendant is 6’7”. The victim was 5’7”. The victim shoved the defendant to the ground and immediately walked away, posing no direct or indirect threat to the defendant. The defendant could have – and should have – walked away too. Instead, the defendant decided to retaliate against the victim. Not by contacting law enforcement. Not by shoving the victim. Not by punching the victim. But by retrieving a semi-automatic weapon – an AR-15 – and shooting the victim twice in the head, killing him instantly. Now, the defendant claims that he was acting in self-defense. But that defense requires the defendant to show that the deadly force he used was objectively reasonable – and thus proportionate – to a threat of grave bodily harm or death. That threat never existed – except when the defendant decided to kill the victim with an AR-15. End of story.

Of course, this isn’t a perfect example, but you get the point. Sometimes, start with the facts. Then, include a very brief statement of the law. In some instances, it is more persuasive than adhering to a conventional formula.

6.    If it sounds good to the ear, write it and keep it.

When drafting a brief, a book, or a movie script, the worst thing that you can do is adhere unquestionably to formulaic writing or comply rigidly with strict grammar and style rules such as:

Don’t use passive voice.

Don’t end sentences with a preposition.

Don’t mix verb tenses.

This approach essentially turns you into a robot, not a writer. It means you aren’t thinking creatively based on the specific facts of your case – or thinking at all. This is not to say, of course, that grammar and style rules don’t matter. In many instances, they enhance the quality and the readability of your brief. The most important rules, however, are these:

Use common sense.

Trust your judgment.

Rely on your instincts.

After all, you want the reader to see you as a relatable and likable human being and, sometimes, that means breaking the rules. But how do you know when to break the rules? It’s simple: if it sounds good to the ear, write it and keep it.  Be sure, however, that what you hear – and write – is grammatically correct.

7.    Get a little nasty sometimes.

People like those who aren’t afraid to be edgy. To be witty. To be controversial. That type of writing shows that you are authentic – and that’s a great quality to have as a writer and person. Put simply, your writing should reflect your passion and your conviction.

To be sure, getting a little nasty doesn’t mean being an unprofessional jerk. But it does mean calling out bullshit when you see it. It does mean forcefully attacking arguments (not adversaries) in a raw and unapologetic manner.

Imagine, for example, that you are representing a defendant accused of murdering his wife. The evidence is largely circumstantial and based on the testimony of two eyewitnesses. On the eve of closing arguments, the prosecution discloses to you a document summarizing a DNA test that was performed on blood found on the murder weapon six weeks before the trial started. The DNA did not match the defendant’s DNA. You immediately move for a mistrial but the court denies it after the prosecution claims that the document had been lost and was found only an hour before it was disclosed to the defense. Your client is convicted and sentenced to life in prison. You appeal.

In your appellate brief, you should dispense with the niceties and professional courtesies, and call out the bullshit.  Consider the following:

Once again, we have a prosecutor who, at the eleventh hour of a murder trial, claims the equivalent of a student alleging that ‘the dog ate my homework.’ Specifically, the prosecution stated that it somehow “lost” evidence that exonerated my client, only to “find” it after the defense had rested its case and just before the jury began deliberations. The prosecution’s excuse is about as authentic as the tooth fairy and reflects a brazen disregard for the facts, the law, and my client’s life. In short, it’s bullshit. The result is that an innocent man is in prison, and if the conviction is affirmed, this court will essentially be saying that the dog did eat the student’s homework.

Yes, this paragraph is quite strong and, some would argue, over the top. Who cares? Stop worrying so much about how the reader will react – and what the reader might prefer – and focus on expressing your authentic voice.

After all, the prosecution’s behavior suggests strongly that misconduct occurred and that an innocent man is in prison for the rest of his life. How would most people, including the defendant and his family, react to such unethical behavior? They’d be furious. Your writing should, within reason, reflect the rightful indignation that should result from that injustice.

8.    Don’t edit too much.

Some writers just can’t stop editing. They just can’t stop rethinking, rewriting, and revising their work. Most of us have encountered these types. They say things like, “Do you think we can make an argument that cease has a slightly different meaning than desist?” or “This sentence is twenty-six words and sentences should only be twenty-five words, so what word should I take out?” or “I decided to delete the revisions to the revisions to the revisions because I don’t think they convey the point clearly” or “The Supreme Court case I cited about the summary judgment standard was from four years ago. We need to find a more recent case.”

These people are so annoying and truly don’t see the forest for the trees.

The problem with excessive editing is that it rarely improves to any substantial degree the quality of a brief. Rather, it often reflects a lawyer’s insecurities and addiction to perfection, which results in devoting every possible second before a deadline to editing. It’s a waste of time. What’s more, excessive revisions can weaken the authenticity and passion of your writing.

Accordingly, don’t overthink or overwrite. Trust in yourself. Let your authentic voice and passion show and remember that the reader isn’t focused on whether your sentence is twenty-five or twenty-six words. The reader is focused on the substance and persuasiveness of your arguments.

9.    Write like a human being.

Readers form perceptions of both the quality of writing and the writer. For that reason, it’s critical to write in a style that shows you to be credible, likable, and relatable. What are some ways that you do that?

Be conversational.

Be humorous (in appropriate circumstances).

Be straightforward.

In other words, lighten up on the formalities and resist the temptation to portray yourself as a master of the verbal section on the SAT. Do not, for example, write statements like “It is axiomatic that the First Amendment protects the right to free speech.”

Huh? Have you ever heard anyone use the word axiomatic during a conversation?

Imagine if you were on a date and your date said, “It is axiomatic that we have a great connection.” Um, that would be weird. And the connection would probably be gone.

People don’t talk like that. You shouldn’t write like that.

Justice Elena Kagan is a perfect example of what it means to speak and write like a human being. Kagan’s opinions display a conversational, authentic, and relatable tone that connects with the reader. Consider the following passage from one of Kagan’s opinions:

Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility that you mostly get to control - of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.[3]

The key here is “me too.” It relates and develops a connection to the reader. And few can forget one of Kagan’s humorous responses during her confirmation hearing. In response to the question of where she was on Christmas day, she replied “You know, like all Jews, I was probably at a Chinese restaurant.”[4] The questioner’s response? “Great answer.”[5]

Indeed, it was.

10.    Ask questions.

Don’t be afraid to ask questions in your brief; doing so can enhance your argument’s narrative force. For example, in Obergefell v. Hodges, Chief Justice John Roberts dissented from the Court’s decision holding that the Fourteenth Amendment’s Due Process Clause encompassed a right to same-sex marriage.[6] In so doing, Roberts wrote as follows:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”… As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?[7]

Roberts’ question at the end underscores his point that the Court’s decision was predicated on the justices’ policy preferences, and not on the Constitution.

So, again, don’t be afraid to ask questions or be different in other respects. Excellent writing isn’t always about checking all the boxes to ensure that you’ve followed all the rules. It’s about telling the best possible story. It’s about writing with your heart and your authentic voice. Sometimes, that means making your own rules.

 

[1] Also, remember that most people who read your writing are cognizant of your effort and investment in your work. Thus, they will likely be reluctant to offer a blunt and candid assessment of your writing for fear of hurting you.

[2] Joe Berkowitz, “Write Drunk. Edit Sober. According to Science, Ernest Hemingway Was Actually Right (Jan. 4, 2017), available at: “Write Drunk. Edit Sober.” According To Science, Ernest Hemingway Was (fastcompany.com). (Note: This quote has been wrongfully attributed to Hemingway. It was said by Peter De Vries).

[3]  Laura K. Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, 89 Ind. L. J. 1, 3 (2014), available at: Doctrinal Conversation: Justice Kagan's Supreme Court Opinions (indiana.edu)

[4] Id. at 1.

[5] Id.

[6] 576 U.S. 644 (2015).

[7] Obergefell v. Hodges, Excerpts from the Dissenting Opinions, available at: decision_excerpts_from_dissents_obergefell_student.pdf (landmarkcases.org) (emphasis added)

January 15, 2022 in Appellate Advocacy, Appellate Justice, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Using E-Prime to Add Clarity and Save Words

    I hope you are all enjoying 2022 so far.  As you look for ways to refresh your writing in the new year, consider using E-Prime.  Christopher Wren first introduced me to E-Prime, which “’refers to a subset of English that shuns any form of the verb ‘to be.’”  See Christopher Wren, E-Prime Briefly:  A Lawyer Writes in E-Prime, Mich. Bar J. 52, http://www.michbar.org/file/barjournal/article/documents/pdf4article1187.pdf (July 2007). In other words, to write in E-Prime, a drafter should avoid most “to be” verbs.

    While removing all forms of “to be” might sound daunting, I promise you will like the resulting clear, concise writing.  For attorneys and students who struggle with word limits, tightening sentences through E-Prime will usually save words.  Moreover, E-Prime requires writers to focus on the actor without using “is” as a definition, and thus increases precision.   

    As Mark Cohen explained:  “Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.”  Mark Cohen, To Be or Not to Be--Using E-Prime to Improve Thinking and Writing,  https://blogs.lawyers.com/attorney/contracts/to-be-or-not-to-be-using-e-prime-to-improve-thinking-and-writing-65489/ (Nov. 2020).   Cohen listed many examples of how E-Prime adds clarity, including by revealing the observer and forcing us to avoid “passing off our opinions as facts.”  Id. 

    Wren also provides great examples of E-Prime removing passive voice and shortening clauses.  Wren, A Lawyer Writes in E-Prime, at 52.  Here are two of Wren’s examples:

Before:   Doe’s assertion that he was prejudiced by the joint trial is without merit.

After E-Prime:  Doe’s assertion that the joint trial prejudiced him lacks merit.

Before:  Generally, an order denying a motion for reconsideration is not an appealable order where the only issues raised by the motion were disposed of by the original judgment or order.

After E-Prime:  Generally, the party moving for reconsideration may not appeal an order denying the motion if the original judgment or order disposed of the only issues raised by the motion.

Id. 

    As a legal writing professor, I especially like the way E-Prime adds clarity and removes passive voice.  Since passive voice requires “to be” verbs, students who remove those verbs will also remove passives.  Thus, I now teach my students struggling with passive writing to look for all “to be” verbs followed by other verbs in their drafts.   Students who initially did not recognize passives tell me they now write more concisely by editing out “is,” “was,” and other “be” verbs.

    In his Michigan Bar Journal article, Wren shared that moving to E-Prime was not simple, in part “[b]ecause English­language communication relies so heavily on ‘to be’ constructions, removing them from the written form struck me as requiring more time and dedication than I thought I could muster, then or in the foreseeable future.”  Id.  When Wren first told me about E-Prime, I too found the idea of rewriting so many sentences impractical.  But after letting the idea percolate for a bit, I reached the same conclusion as Wren, who explained that in the end, “E­Prime helped me improve my writing” and “made my writing clearer by forcing me to pay more attention than usual to ensuring the reader will not have to guess who did what.”  Id.

    Thus, I urge you to give E-Prime a try.  With just a bit of practice, you can employ E-Prime to remove words from and add clarity to your appellate briefs, memos, and even emails.

January 15, 2022 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, January 3, 2022

2022 & The Marble Place Blog

Robert has already welcomed 2022 in his post yesterday. He provided some predictions regarding several big cases before the Supreme Court this year. Two other big cases, which address federal vaccine mandates, will be heard this Friday. I suspect we will get an expedited decision in those cases given the effective dates of the policies.

Speaking of the Supreme Court, noted Supreme Court journalist Tony Mauro has a new blog that he has aptly named The Marble Palace Blog. He recently blogged about the most recent issue of the Journal of Appellate Practice and Process, which addresses what judges can do to ameliorate the divisions in our country. Tony was one of the authors I recruited to write a preface for the issue, which I discuss here.

In his post, Tony pulls key excerpts from seven diverse pieces. Each excerpt offers a tangible step that lawyers and judges can take to address the cultural and political divisions in our country. While some of the steps would take much political capital to institute (a non-partisan nominating commission for federal judges and justices), others are simple in theory (be role models and civil, even when you disagree).

Given the hot button issues that the Court has to decide this year--guns, abortion, vaccine mandates, presidential privilege--we know that there will be ample opportunity to practice some of the steps outlined by Tony and the authors of the special issue. I hope we as lawyers (and judges for our judicial readership) take seriously our responsibility to serve as role models for our communities.

Happy New Year!

January 3, 2022 in Appellate Advocacy, Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, January 2, 2022

Welcome to 2022

            Writers of blog posts and newspaper columns often can’t resist predicting what the new year might bring. And, for the most part, they are bad at this harmless exercise. I don’t claim to be better at it, but found it equally enticing to try. For appellate advocates, some predictions are easy to make. They are on a schedule. The coming six months, for example, will bring some blockbuster decisions from the Supreme Court. On its agenda for decision is the future of Roe v. Wade[1] and the legal status of abortion, state authority to limit access to guns, the validity of congressional subpoenas for documents from a former president, and a potentially far-reaching decision on whether a State can deny religious-school participation in a student aid program.

            A harder undertaking for an armchair Nostradamus is predicting the outcome of those cases, even though we have some strong clues in some instances. From the arguments, it appears that Mississippi’s 15-week limit on abortions will survive constitutional challenge.[2] The Court need not overturn Roe and Planned Parenthood v. Casey[3] entirely to reach that result, even if the result may allow those prior decisions to exist more in name than in precedential value. While Chief Justice Roberts could conceivably attempt to control the opinion by assigning it to himself and take the incremental approach he often favors to make the break with Roe less abrupt, I predict he will not be able to corral enough justices to that approach. Instead, his best hope is likely to pen a controlling plurality decision. I also predict that such an approach will not quell the political firestorm that will grow out of the decision, as well as others from the term.

            It does not take a fortune-teller to know that New York’s 1911 Sullivan law will be overturned in the gun case argued in November.[4] There, a clear majority seems likely to strike it down as incompatible with the Second Amendment. A strong concurring opinion will provide a blueprint for further challenges to state regulation of firearms, but it will not command five votes. Instead, I predict that the majority decision will look somewhat like last Term’s decision in Fulton v. City of Philadelphia,[5] which held invalidated a city program that refused to make foster-care referrals to a Catholic social service agency because its religious beliefs prevented it from considering gay couples as foster parents. The decision provided no guidance for future cases, only agreement that the hypothetical discretion the city retained to make exemptions to its policy was fatal. That part of the decision was unanimous. However, a 6-3 line-up refused to go further and overturn Employment Division v. Smith.[6] I predict a similar line-up will prevail to show a split in how far the justices are willing to go on guns, at least in this case.

            Fulton will not provide a model in this Term’s religion case on student aid. In Carson v. Makin,[7] a split decision will invalidate Maine’s program of paying secondary-school tuition at a private where no public school exists but excluding religious or sectarian schools. Though the immediate decision will affect very few students, the criteria the Court adopts is likely to expand the types of claims that can be made under the rubric of religious discrimination.

            I also predict that the Court will act with unanimity in holding that former President Trump must turn over the subpoenaed documents sought by the House committee investigating the January 6 attack on the Capitol.[8] The petition stage received expedited briefing and seems likely to be granted. The case recalls United States v. Nixon,[9] in that the Court will similarly deem it critical to speak in one voice on the issue. To get there in Nixon, however, the Court recognized “a presumptive privilege for Presidential communications” that was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”[10] It was lodging the privilege in the Constitution that was new in the decision and unnecessary to its result. I predict that an equally unnecessary discourse that adopts an expansive view of executive privilege, overcome in this case, to be articulated in the forthcoming opinion that will open the door future arguments not made or applicable to this case.

            In addition, the hot-button issue of affirmative action seems destined to add to this very important term’s agenda based on a long-pending petition.[11] Here, I predict a less diffident decision, holding it to be discriminatory in a sharply split decision. Finally, the year, even if not the current Term, is likely to also see important election law decisions, as I expect the upcoming state and congressional elections to generate an unprecedented amount of litigation.

            And, if I’m wrong on any or all of this, there’s always next year! Happy new year.

 

[1] Roe v. Wade, 410 U.S. 113 (1973).

[2] Dobbs v. Jackson Women’s Health Org., No. 19-1392 (Argued Dec. 1, 2021).

[3] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[4] New York State Rifle & Pistol Ass’n Inc. v. Bruen, No. 20-843 (Argued Nov. 3, 2021).

[5] Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021).

[6] Employment Div. v. Smith, 494 U.S. 872 (1990).

[7] Carson v. Makin, No. 20-1088 (Argued Dec. 8.2021).

[8] Trump v. Thompson, No. 21-932.

[9] United States v. Nixon, 418 U.S. 683 (1974).

[10] Id. at 708.

[11] Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199.

January 2, 2022 in Appellate Advocacy, Appellate Justice, United States Supreme Court | Permalink | Comments (0)

Sunday, December 26, 2021

Prediction: Dobbs v. Jackson Women’s Health

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

A.    Background

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

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

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

Regardless, in Planned Parenthood, the Court reaffirmed Roe’s central holding, and for nearly fifty years, women have had the fundamental right to access abortion services, particularly during the first trimester. Thus, principles of stare decisis, and concerns for the Court’s institutional legitimacy, counsel in favor of protecting this right even though Roe is indefensible as a matter of constitutional law. After all, if in Dobbs the Court overturns Roe, it would only be because a majority of current justices are more conservative than their predecessors. Thus, overturning Roe would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. In other words, it would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is a recipe for destroying the Court’s legitimacy.

B.    Dobbs v. Jackson Women’s Health

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

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

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

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

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

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

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

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

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

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

 

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

[2] See id.

[3] See id.

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

[5] See id.

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

[7] Id.

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

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

Sunday, December 19, 2021

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

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

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

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

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

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

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

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

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

 

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

[2] Id. at *10.

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

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

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

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

Thursday, December 16, 2021

Overcoming imposter syndrome

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

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

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

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

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

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

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

   

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

Sunday, December 5, 2021

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

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

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

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

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

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

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

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

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

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

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

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

 

[1] 19-1392.

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

[3] No. 20-843.

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

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

Thursday, November 25, 2021

An Appellate Practitioner Gives Thanks

To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:

  • Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
  • Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
  • The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
  • American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
  • Dashes, colons, and semi-colons. They are way undervalued and underutilized.
  • Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
  • The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
  • The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
  • The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
  • Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
  • People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
  • Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).

Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!

November 25, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (2)

Tuesday, November 23, 2021

A (Cleaned Up) Dust Up

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

Callahan v. United Network for Organ Sharing presented the question of whether documents attached to a brief were judicial records and thus, open to the public.[1] The court dropped this footnote:

A “cleaned up” parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that “[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’ ” But the text UNOS “cleaned up” comes from an explanatory “cf.” parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at 1168. Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that “public access is presumed for materials that invoke judicial resolution of the merits.” Id. (quotations omitted).[2]

And here is the referenced portion of the appellant’s brief:

At the same time, this Court explained that “[t]he mere filing of a document does not transform it into a judicial record.” Id. at 1167. Unlike “materials that invoke judicial resolution of the merits,” the public interest is not furthered by documents that are “irrelevant to the underlying issues,” like “the overwhelming majority of documents disclosed during discovery.” Id. at 1168 (quoting AbbVie Products, 713 F.3d at 63) (cleaned up).[3]

Finally, here is the referenced passage of Advanced Local Media:

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he overwhelming majority of documents disclosed during discovery are likely irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by the court or other judicial officer,’” but public access is presumed for “materials that invoke ‘judicial resolution of the merits’” (citations omitted)).[4]

So, this is an example where (cleaned up) was misused and misused in a way that the court found misleading. But, the potential for misuse is not unique to, and thus not attributable to, (cleaned up). Other ways of noting alterations or omissions in quoted material, such as brackets or ellipses, may be misused.

Whatever approach we take to quoting authorities it is our responsibility as advocates to ensure that we are scrupulously accurate in doing so.

 

[1] No. 20-13932, 2021 WL 5351863 (11th Cir., Nov. 17, 2021).

[2] Id. at *4.

[3] Randall CALLAHAN, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant., 2020 WL 7641873 (C.A.11), 34.

[4] Commr., Alabama Dept. of Corrections v. Adv. Loc. Media, LLC, 918 F.3d 1161, 1168 (11th Cir. 2019).

November 23, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, November 21, 2021

Answer the Question

            At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers.

            Graves made his remarks during a discussion of “Top Tips for Top-Notch Oral Argument Answers.” The judge said that counsel will often be so focused on the message crafted in preparation for the argument that they fail to pay sufficient attention to the question or plow over it in order to advance their point. However, it is entirely possible that the framework that the advocate seeks to advance may be secondary to satisfying members of the court on something that struck them as critically important. Satisfying the judge by answering the question and either relating it to the pre-planned argument or pivoting to another topic deemed important to address ought to be counsel’s focus.

            Reading the briefs, Graves said, will likely raise some questions for the judge, including issues that may have arisen in other cases that had come before the judge. Perhaps counsel had not considered the issues raised by the question before – or the judge may be mistaken about its relevance to this case. In either event, the question should be answered.

            In dealing with a mistaken question, panelist Joshua B. Carpenter of Federal Defenders of Western North Carolina suggested a humble approach. He recalled a time when a judge insisted that Carpenter’s point could not be correct given the record evidence about mailboxes. Carpenter responded by gently suggesting that he could not recall mailboxes figuring in the record. The judge, however, continued to insist that the mailbox evidence definitively refuted Carpenter’s claim – until the judge received a note from a law clerk, informing him that the mailbox case was being argued the following week.

            During oral argument earlier this month before the U.S. Supreme Court in New York St. Rifle & Pistol Ass’n, Inc. v. Bruen, a case I covered during my Summit panel on the current Supreme Court term, Deputy Solicitor General Brian Fletcher parried the questions he was asked with impressive aplomb, providing a number of examples of how to answer questions while turning to your own point. The case involved New York’s restrictions on gun licenses, one that most observers believe will be declared unconstitutional and that Fletcher was defending. The case appeared to turn on a combination of the Second Amendment’s text, history, and traditions in the States.

            Early on, Justice Clarence Thomas asked Fletcher how to decide which States’ history and traditions should inform the Court on the proper approach to gun rights, adding “you focus a lot on western states, but the west is different.” Fletcher immediately agreed that the west is different, but indicated that the Court should be “skeptical about a tradition that’s only  reflected in one state, indicating that that was a flaw in his opponent’s argument which relied on “some of the cases exclusively from the antebellum south.” His cases, he added, spanned the country.

            Chief Justice John Roberts questioned Fletcher about why a license to bear arms is justifiable when other Bill of Rights guarantees were not subject to licensure. Fletcher agreed with the initial proposition that most rights do not permit licensing schemes, but then recognized that his opponent, in answer to a question from Justice Brett Kavanaugh, said that the challengers had no quarrel with licensing regimes for guns generally. That stance, Fletcher explained, illustrates that the “Second Amendment has a distinct history and tradition and that the way to be faithful . . . to that history and tradition [is] not to draw analogies to other rights with -- with their own histories and traditions.”

            What makes these answers admirable is that they answered the question but made a point that was consistent with the arguments made in the briefs and even incorporated opponents’ statements made during the oral argument. It took questions from justices likely vote against Fletcher’s position and used them to make a point consistent with the concern voiced by the questioner but turned to the advocate’s advantage. While the New York gun law may not survive this constitutional challenge, Fletcher’s performance provided a classic example of what answering the question should mean.

November 21, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Saturday, November 20, 2021

A Great Summary of Argument Can Make Your Brief

Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.”  Fed. R. App. P. 28(a)(7).  As a judicial clerk, I saw brief after brief where the authors ignored this rule.  Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.

Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case.   The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case.   Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument.  Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read. 

Recently, I read a fantastic Summary of Argument which really proves these points.  In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs.  As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health OrgSee https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.

You can find the briefs in Dobbs at SCOTUSblog here:  https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/.  But how do you choose which briefs to read?  I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs.  In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me.  One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.  

The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning:  “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.”  See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf.  Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.”  Id. at 2.  Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.”  Id. at 2-3.

Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue.  The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.

In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader.  The next time you draft a Summary of Argument, you might want to follow this wonderful example.

November 20, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, November 14, 2021

Why Confidence in the United States Supreme Court is Declining

In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court.[1] The public’s declining confidence in the Court, and the resulting threat to the Court’s institutional legitimacy, is attributable in substantial part to several factors.

1.    The Court’s decisions are perceived as political and outcome-driven.

In several landmark decisions involving divisive social issues, the Court has disregarded or manipulated the Constitution’s text to achieve outcomes that arguably reflect the justices’ policy predilections. In Griswold v. Connecticut, for example, the Court held that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property without due process of law,” encompasses a substantive – and unenumerated – right to privacy.[2] In so holding, the Court stated that, although a literal interpretation of the Due Process Clause did not support creating this right,  the Constitution nonetheless contained invisible “penumbras,” that are “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.”[3] It was within these penumbras that the Court discovered a right to privacy.

In other words, the Court singlehandedly created an unenumerated right to privacy out of thin air.

To make matters worse, in Roe v. Wade, the Court held that the unenumerated right to privacy encompassed a right to terminate a pregnancy.[4] Regardless of one’s view on abortion,  the Court’s decision, as in Griswold, entirely disregarded the text of the Due Process Clause and instead discovered this right in the invisible penumbras that Griswold created. The result reflected a troubling reality: the Court, consisting of nine unelected and life-tenured judges, was giving itself the unchecked authority to invent whatever rights it subjectively deemed necessary to ensure liberty for all citizens. These and other decisions were rightly perceived as fundamentally undemocratic and inconsistent with the judiciary’s obligation to say what the law is, not what it should be.

Additionally, in Planned Parenthood v. Casey, the Court, in a 5-4 decision, reaffirmed Roe, although the Court acknowledged again that the Due Process Clause’s text  did not support recognizing a right to abortion.[5] Undeterred by the text, however, the Court supported its decision by emphasizing that “[a]t the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."[6] Apart from being based on no reasonable interpretation of the Due Process Clause, the Court’s decision – and this passage – indicated that the Court would in the future unapologetically create whatever unenumerated rights it deemed essential to liberty – and impose that judgment on all fifty states.

The Court’s decisions were intellectually dishonest, constitutionally indefensible, and outcome-driven. This is a recipe for undermining public confidence in the Court.

Furthermore, some of the Court’s 5-4 decisions often conveniently align with the justices’ political views. For example, in its abortion and affirmative action jurisprudence, the ‘liberal’ justices often, if not always, vote to invalidate abortion restrictions and uphold affirmative action policies, while the ‘conservative’ justices predictably disagree. The impression, of course, is that politics, not law, underlies the Court’s decisions.

2.    The Court gets involved in disputes that the democratic process should resolve.

The Constitution says nothing about abortion.

It says nothing about same-sex marriage.

It says nothing about whether money constitutes speech.

It says nothing about whether imposing the death penalty for child rape is cruel and unusual.

Yet, the Court has repeatedly injected itself into these disputes – and determined for all fifty states – what the Constitution means and requires. In so doing, the Court’s decisions, which in the above areas are almost always decided by a 5-4 vote, undermine democratic choice.

3.    The Court fails to defer to the democratic process when the Constitution is ambiguous.

The Constitution’s text is often broadly worded and subject to different interpretations. In these circumstances, the Court should defer to the democratic and political process, not intervene and impose its interpretation on an entire country.

For example, in Kennedy v. Louisiana, the Court considered whether a Louisiana law, which authorized the death penalty for the rape of a child, violated the Eighth Amendment’s Cruel and Unusual Punishment Clause.[7] Based on the Eighth Amendment’s text and original purpose, reasonable jurists could reach different conclusions on this question. Put differently, the Eighth Amendment provided no definitive answer regarding the law’s constitutionality. Given this fact, the Court should have deferred to Louisiana’s democratic process and refused to grant certiorari. Instead, the Court intervened and, in a controversial 5-4 decision, invalidated the law.

Likewise, in Clinton v. New York, the Court addressed whether the Line Item Veto Act, which both houses of Congress passed, and which allowed the President to amend or repeal portions of duly-enacted laws (primarily to reduce excessive spending), violated the Constitution’s Presentment Clause.[8] The Presentment Clause was broadly worded and, thus, subject to different interpretations concerning the line-item veto’s constitutionality. Nonetheless, the Court intervened and, in a 6-3 decision, invalidated the Act.

Why?

Who is to say that the Court’s interpretation of a broadly-worded provision is any more correct than that of federal or state legislatures? Indeed, as Justice Stephen Breyer argued in his dissent, the Act did “not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”[9]

4.    The justices’ reasoning in many cases is inconsistent and suggests that politics, not law, drive their decisions.

Inconsistent and uneven application of doctrine and precedent is certain to undermine public confidence in the Court. Yet, that is precisely what some of the Court’s decisions reflect.

For example, in National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts provided the fifth vote to uphold the Affordable Care Act.[10]  In his opinion, Chief Justice Roberts held that the Affordable Care Act’s individual mandate could reasonably be construed as a tax and was thus justified under Congress’s taxing powers.[11] Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.[12]

Fair enough. That approach is reasonable – if applied consistently.

Unfortunately, however, that is not the case. In Shelby County v. Holder, for example, Roberts joined a five-member majority to invalidate portions of the Voting Rights Act that had been re-authorized by a unanimous 99-0 vote in the Senate.[13]

Now, there may certainly be justifiable reasons that could explain Roberts’ different approach in both cases. But those reasons, particularly when not apparent from the Court’s decisions, do little, if anything, to affect the perception that politics, not law, motivates the Court’s decisions. And perception is reality.

Additionally, the Court’s toxic, on-again, off-again relationship with stare decisis raises similar concerns. For example, in June Medical Services v. Russo, Chief Justice Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges. [14] In so doing, Roberts emphasized that his decision rested on stare decisis principles, as the Court in Whole Woman’s Health v. Hellerstadt had recently invalidated a nearly identical law in Texas. [15]

Yet, Roberts has not been shy about disregarding stare decisis when he disagrees with a prior decision. For example, in Janus v. AFSCME, Roberts voted with the majority to overrule Abood v. Detroit Bd. of Ed., and hold that labor unions could not collect fees from non-union members.[16] Of course, there may be an understandable reason for Roberts’ inconsistent application of stare decisis. But to the public, it appears that stare decisis is a doctrine of convenience rather than conviction.

***

The public’s confidence in the Court – and the Court’s institutional legitimacy – depends on whether its decisions reflect an honest interpretation of the law and fidelity to constitutional and statutory text. The Court’s recent jurisprudence suggests that other factors are influencing its decisions, including a desire to reach outcomes that the Court believes will maintain its legitimacy. But that concern is precisely what leads the Court to make decisions based on political calculations, the effect of which is to undermine the very legitimacy the Court seeks to preserve. The path to restoring public confidence in the Court is through intellectual honesty, reasonable interpretations of the Constitution, and consistent application of legal doctrines.

 

 

[1] See Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (Sept. 23, 2001), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

[2] 381 U.S. 479 (1965).

[3] Id. (emphasis added) (brackets added).

[4] 410 U.S. 113 (1973).

[5]  505 U.S. 833 (1992).

[6] See id.

[7] 554 U.S. 407 (2008).

[8] 524 U.S. 417 (1998).

[9] Id.

[10] 567 U.S. 519 (2012).

[11] See id.

[12] See id.

[13] 570 U.S. 529 (2013).

[14] 591 U.S.           , 2020 WL 3492640 (2020).

[15] 579 U.S. 582 (2016).

[16] 138 S. Ct. 2448 (2018).

November 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Sunday, November 7, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, November 7, 2021

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The new format for oral argument adopted as the Supreme Court resumed in-person argument was introduced in part to address a study showing that female justices are interrupted by both male justices and advocates. The 2017 study by Tonja Jacobi and Dylan Schweers, researchers at Northwestern Pritzker School of Law, showed that female justices were interrupted at disproportionate rates. Justice Sotomayor, appearing at a recent event, stated that the study had an “enormous impact” on how the Supreme Court conducts oral argument.  See reports from The Guardian, CNN, and The Atlantic podcast.

  • The Court heard oral argument this week on two high-interest issues: a Texas abortion ban and a New York gun control law.

    - The Texas abortion case does not address the constitutionality of the ban itself but instead considers the procedural restrictions preventing federal challenges by abortion doctors and the Justice Department. The law is written so that it gives the state no direct role in enforcing the ban, instead authorizing private lawsuits in state courts against doctors or clinic owners who violate its provisions. The audio and transcripts of oral argument are available here: Whole Woman’s Health v. Jackson, No. 21-463, transcript and audio;  United States v. Texas, No. 21-588, transcript and audio. Some of the many reports on the case and oral argument include, The New York Times, The Washington Times, The Associated Press, Reuters, and NPR.

    - The New York gun control case considers the constitutionality of a New York law that imposes limits on carrying guns in public. The law requires citizens to show “proper cause” to get a license to carry a handgun in public. The audio and transcripts of oral argument are available here: New York State Rifle & Pistol Assn. v. Bruen, No. 20-843, transcript and audio. See reports on the argument and the case from The Los Angeles Times, USA Today, and The New York Times.

Appellate Court Opinions and News

  • The Fifth Circuit has suspended the Biden administration’s vaccine requirement for private companies. The Occupational Safety and Health Administration rule applies to businesses with 100 or more workers and requires those works be vaccinated by January 4 or face mask requirements and weekly tests. See the order and reports from NPR and The Wall Street Journal.

  • A federal court has ruled that North Carolina at Chapel Hill may use race as a factor in admissions. The court ruled that the university’s consideration of race was narrowly tailored and that the university considered race-neutral alternatives, which meets the 2003 standard set by Grutter v. Bollinger. The ruling stated that, “[w]hile no student can or should be admitted to this university, or any other, based solely on race, because race is so interwoven in every aspect of the lived experience of minority students, to ignore it, reduce its importance and measure it only by statistical models. . . , misses important context . . ..” The challengers vow to appeal the ruling. See the order and reports from USA Today and The New York Times.

Appellate Practice

An interesting thread on Twitter asks, "Have you read a law review article recently that you thought was particularly great and deserving of a wider readership?" Take a peek for what looks like a great list!

November 7, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, October 30, 2021

The U.S. Supreme Court’s Institutional Legitimacy is At Stake in Whole Women’s Health v. Jackson

Like a bad dream (or a toxic ex-partner), abortion has made yet another unwelcome visit to the United States Supreme Court, thanks to the State of Texas.

Texas is up to its old tricks again in its never-ending quest to find some way – any way – to disregard Roe v. Wade and Planned Parenthood v. Casey, and eviscerate abortion access in the Lone Star State. By way of background, in 2013, Texas passed a law requiring abortion providers to have hospital admitting privileges and claimed that the law’s purpose was to protect women’s health.[1] But the stated purpose was as meritless as it was disingenuous: complications from abortions are quite rare and less frequent than, for example, complications resulting from tonsillectomies and tooth extractions – neither of which were subject to such a requirement.[2] The law was challenged and, in Whole Women’s Health v. Hellerstedt, the Court, by a vote of 5-4, rightfully invalidated the law and implicitly recognized that its purpose was, in the words of former Governor Rick Perry, “to make abortion, at any stage, a thing of the past.”[3]

Sadly, Texas didn’t learn its lesson.

The legislature recently passed – and Governor Gregory Abbott signed – a “fetal heartbeat” law (“SB 2”)  that prohibits abortions after six weeks. But there’s more: ostensibly aware that the law unquestionably violates Roe and Planned Parenthood, which held that women have the right to terminate a pregancy before viability (approximately twenty-four weeks), Texas designed a ridiculous scheme to evade review by the federal courts. Specifically, SB 2 authorizes private citizens, not state officials, to enforce the law by giving all citizens the right to sue abortion providers who perform abortions after six weeks.[4] And to incentivize such lawsuits, Texas is offering private citizens at least $10,000 if they succeed in a lawsuit against an abortion provider. Put simply, SB 2 creates private bounty hunters.

Not surprisingly, SB 2’s constitutionality was immediately challenged. Initially, the Court refused to grant injunctive relief, holding that, although the law raised serious constitutional questions, it also raised “novel antecedent procedural questions," such as whether the Court had the power to issue an injunction against “state judges asked to decide a lawsuit under Texas’s law,” and whether an injunction was proper given that the named defendants lacked the power to enforce the law.[5] As a result, the law is now in effect and abortions in Texas are, as a practical matter, a thing of the past.

So here we are again.

Like in Hellerstedt, where Texas unsuccessfully argued that a hospital admitting privileges requirement was necessary to protect women’s health – a justification the Court rightfully rejected – it  now argues that it can effectively eliminate the right to abortion by adopting a private enforcement scheme that uses citizens as proverbial human shields to evade federal review and preclude injunctive relief . As in Hellerstedt, the Court should invalidate this ridiculous law, which thumbs its nose at the Court, its abortion precedent, and judicial review. The law unquestionably violates Roe and Planned Parenthood, and is an unconstitutional assault on the viability threshold. The Court should recognize the obvious.

If the Court fails to do so, it will severely, if not irreparably, undermine its institutional legitimacy. Indeed, at a time when forty percent of the public has confidence in the Court, doing the right thing – regardless of ideology – is critical.[6]

To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Whole Woman’s Health the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is the point – and the problem.

Yet, this is precisely what the public may believe if the Court refuses to grant Petitioners relief and, instead, focuses on the “novel antecedent procedural questions," such as those mentioned above. Doing so will likely be viewed for what it is: conservative justices hiding behind Texas’s legislative shenanigans to all but outlaw abortion in Texas and, concomitantly, give states carte blanche to eviscerate any constitutional right simply by enacting a private enforcement scheme. If the Court countenances such nonsense, constitutional rights will be worth the equivalent of Monopoly money.

The Court should grant Petitioners relief.  Regardless of whether one is pro-life or pro-choice, what matters is recognizing this charade for what it is: a sophomoric and transparent attempt to disregard Roe and eliminate abortion. 

Ultimately, the mess that is abortion jurisprudence reflects three problems with the Court's decisions in this and other areas.

  1. Living Constitutionalism. The Court is in this mess primarily because Roe v. Wade was a constitutionally indefensible decision. Decided less than a decade after Griswold v. Connecticut, an equally indefensible decision, the Court created a right to privacy (and abortion) out of thin air, as no reasonable interpretation of the Fourteenth Amendment’s Due Process Clause could support recognizing these rights. The backlash among states that Roe and, later, Planned Parenthood engendered, and that has thrust the abortion right into uncertainty for decades, reflects the flawed reasoning in these decisions. 
  2. An ambiguous legal standard. In Planned Parenthood, the Court reaffirmed the central holding in Roe but created a new standard by which to assess the validity of abortion restrictions. Specifically, the Court held that laws regulating abortion cannot place an “undue burden” on a woman’s right to terminate a pregnancy. But what exactly constitutes an “undue burden"? No one knows. Adopting this vague standard created uncertainty and unpredictability regarding the right to abortion and only guaranteed that states like Texas would continually attempt to limit, if not eliminate, abortion access.
  3. Incrementalism. The Court, particularly under Chief Justice John Roberts, has adopted an incremental approach to deciding cases, in which the Court only decides the narrow legal issue before it, thus eschewing broad rulings or the adoption of categorical legal rules. This approach has many benefits. Sometimes, however, clear – and categorical – rules are necessary to bring clarity to the law, guide lower courts, and bring stability to the law.

The Court’s abortion jurisprudence suffers from all three flaws. As such, it should not be surprising that the right to abortion has for decades led to countless legal challenges and continued uncertainty.

Hopefully, the Court will recognize – and rectify – the problem. Its institutional legitimacy depends on it.

 

[1] 579 U.S. 582 (2016).

[2] See id.

[3] Press Release, Governor Rick Perry, Tex., Governor Perry Announces Initiative to Protect Life (Dec. 11, 2012), http://perma.cc/CWN2-KLDD.

[4] See Brief of Professors Adam Lamparello, Charles E. MacLean, and Brian Owsley in Support of Petitioner, available at: Microsoft Word - Amicus Brief In Support of Petitioners (supremecourt.gov).

[5] See Whole Woman’s Health v. Jackson, 594 U.S.        (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).

[6] Se Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (September 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

October 30, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, October 9, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, October 9, 2021

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

Appellate Court Opinions and News

  • The controversial Texas abortion ban was blocked and then reinstated this week. The Texas law bans most abortions after about 6-weeks, making abortion virtually impossible in Texas. Judge Pitman of the District Court for the Western District of Texas blocked the ban, recognizing the deprivation of a constitutionally protected right. Judge Pitman wrote: “[T]here can be no question that [the law] operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and ‘equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.’”  He ends the opinion by finding that “[f]rom the moment [the Texas law] went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” See Judge Pitman’s decision and reports on the decision from NPR, Reuters, The New York Times, APNews, the Austin American Statesman, and The Washington Post.

  • Late Friday, the Fifth Circuit stayed Judge Pitman’s order.

Appellate Practice

The Advocate’s Society, Appellate Advocacy Practice Group: Networking Launch, is offering an online program titled “Dirty Tricks of Appellate Advocacy?” on October 26.

October 9, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, October 2, 2021

A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court

The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court.[1] Three factors arguably explain the reasons underlying the public’s negative perception of the Court.

1.    Chief Justice John Roberts

Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.

Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.

The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.

Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.   

2.    The Shadow Docket

The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.

Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences.  Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).

So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.

3.    The Justices’ Political Views

If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.

Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.

And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.

This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.  

Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras,  seeking to discover new rights that reflect the “heady days of the here and now.”[2] That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.

The Solution

Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.

This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. Specifically, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues divisive, controversial – and politicized – decisions.

Furthermore, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would likely be minimized.

Finally, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. 

Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.

 

[1] See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

[2] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

October 2, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 28, 2021

If the public’s opinion of the Supreme Court falls in the woods, does anyone hear it?

    Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.

    A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.

    Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.

    Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.

    Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.

    Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.

    Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.

September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, September 26, 2021

New Supreme Court Procedures Likely to Change Argument Dynamics

            In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”

            The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.

            That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.

            As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.

            Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.

            In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.

            Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.

            Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses,  may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.

September 26, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, September 23, 2021

Call for Submissions--Appellate Practice in and around Indian Country

The Journal of Appellate Practice & Process is currently accepting submissions for Volume 23, Issue 1, to be published in late 2022/early 2023.

This issue will focus on appellate issues in and around Indian Country.  We welcome articles on appellate practice in Tribal Courts, articles exploring Tribal sovereignty and appellate justice, articles that explore jurisdictional questions raised by recent U.S. Supreme Court decisions, and other essays or articles addressing appellate practice issues in and around Indian Country. We welcome articles by academics, judges, and practitioners.

Essays and articles should not exceed 15,000 words in length. Please submit all papers to Prof. Tessa L. Dysart (tdysart@email.arizona.edu) by June 1, 2022.  Acceptances will be emailed by August 1, 2022.

The Journal of Appellate Practice and Process is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”

Since its founding in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer have written for The Journal.  So influential is the Journal that courts often refer to it in their opinions, with over 100 citations in 2019 alone.

The Journal moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy. You can find out more about the Journal at www.appellatejournal.com.

September 23, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)