Appellate Advocacy Blog

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration.  One of my favorite aspects of full time appellate practice was just that:  time.  I treasured having more time--albeit never enough time--than I had in trial practice.  I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court.  Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research.  Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients.  In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized?  Neither have I.   

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar.  The Bar is considering whether to adopt a pilot for this PBE alternative.  You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here:  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.  In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure. 

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test.  Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision.  These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients.  As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.”  Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).  

How would this work?  Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.”  Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.”  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.    

Of course, not everyone favors the PBE proposal.  Some opponents raise thoughtful and important issues of bias and discrimination.  A small pilot can help us address these concerns.  Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities.  See  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.   As former Trustee Mendoza explains: 

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly.  Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.   

The most vocal opposition seems to be from people connected to profitable bar preparation courses.  Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising.  See id.  While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.   

The State Bar is asking for public comment on the PBE Pilot.  The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys.  If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”:  https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button.  The Bar has also provided a box for typed or uploaded comments.  The deadline to comment is Wednesday, October 25, 2023.  I clicked “AGREE” and completed my comment in less than two minutes.  I urge you to weigh in on this important question too.   

The Appellate Project

“We . . . must continue individually and in voices united . . . to figure out how we go about creating the opportunity for there to be more women and people of color on the bench so we can finally have statistically significant numbers to measure the differences we will [be] and are making.” –Justice Sonia Sotomayer[i]

          The Appellate Project is an organization doing just that.  It is designed “to empower law students of color, particularly those most underrepresented, to become the next generation of lawyers and judges in our highest courts” and “thrive in the appellate field.”  It was founded in 2019 by civil rights litigator Juvaria Khan.  The organization offers programming, mentorship, and resources for law students to build the skills and connections needed to break into and succeed in the appellate field. 

        Their work is incredibly important.  Increased representation in appellate courts leads to an “enhance[d]. . . legitimacy of courts among traditionally underrepresented groups”[ii] and the public as a whole.[iii]  The value of legitimacy cannot be overstated because “[d]ecisions of our courts are to be complied with, even when we disagree with them.”[iv]

        And “diversity on the courts enriches judicial decisionmaking[;] . . . the interplay of perspectives of judges from diverse backgrounds and experiences makes for better judicial decisionmaking, especially on our appellate courts.”[v]  Studies have shown that “female and minority judges, on average, bring a different judicial perspective to the bench.”[vi]  Adding just one female judge “to an otherwise all-male panel significantly increases the probability that the male judges will support a plaintiff in sex discrimination or sexual harassment cases.”[vii]  And the inclusion of a single Black judge on a three-judge panel “increases the likelihood that a non[B]lack colleague will find that a state or locality violated the Voting Rights Act.”[viii]  In short, “the interaction of wise Latinas,[[ix]] white men and women, African Americans, Native American judges--just like the interaction of former prosecutors, defense counsel, corporate practitioners and in-house counsel--provides opportunities for a robust exchange that can inform appellate decisionmaking.”[x]

        The Appellate Project offers a mentorship program each year, pairing law students of color interested in appellate practice with two mentors in the appellate field, including attorneys, judges, professors, and law clerks.  If you are an appellate practitioner, I urge you to volunteer as a mentor.  And, if you are a student, this is a fantastic opportunity you don’t want to miss.  The deadline for this year’s mentorship program is October 13, 2023. 

 

[i] Hon. Sonia Sotomayor, A Latina Judge's Voice, 13 Berkeley La Raza L.J. 87, 93 (2002).

[ii] Jonathan P. Kastellec, Racial Diversity and Judicial Influence on Appellate Courts, 57 Am. J. Pol. Sci. 167, 168 (Jan. 2013).

[iii] Sherrilyn A. Ifill, Judicial Diversity, 13 Green Bag 2d 45, 48 (2009).

[iv] Id.

[v] Id. at 49.

[vi] Kastellec, supra n. ii, at 167.

[vii] Id. at 169.

[viii] Id. at 170.

[ix] In her speech, A Latina Judge’s Voice, Justic Sotomayor controversially stated, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.”  Sotomayor, supra n. i, at 92. She was later questioned about this statement during her Supreme Court confirmation hearings in the United States Senate.  Sotomayor Explains "Wise Latina" Comment, CBS News (July 14, 2009), available at: https://www.cbsnews.com/news/sotomayor-explains-wise-latina-comment/

[x] Ifill, supra n. iii, at 52.

Originalism's Frailties: A Reply to Professor Lamparello

Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation."  I'm skeptical. 

Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force.  The Framers created a system of separated powers, originalists reason.  Congress makes law; the judiciary merely interprets it.  Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic.  Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification.  After all, the law is the law, until lawfully changed under Article V. 

I happily concede these points.  (What serious constitutional lawyer would dare disagree with these basic principles of political science?)  But they're not the whole story.

In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions.  In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory.  In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support.  And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges. 

I.    Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers.  But on that score, there is serious reason for doubt.

 Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism?  Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.

    A.    The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.

In interpreting the Constitution, we must start with its text.[1]  To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators[2]--and when the text is clear, the inquiry ceases.  But the text also contains many provisions with broad, normative language.  Take, for example, the Constitution's guarantee of "equal protection of the laws,"[3] its prohibition of "cruel and unusual punishments,"[4] or its clause forbidding "unreasonable searches and seizures."[5]  It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees. 

Why would the Framers purposefully choose such ambiguous, value-based language?  First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates.  But more importantly, the Framers wanted their document to have staying power.  This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity[6]--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."[7] 

Let's pause here to nip a possible misapprehension in the bud.  Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time.  Not so.  The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity.  But, as mentioned, the Constitution frequently uses ambiguous, normative language.  While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.[8]  That's a key difference. 

Consider, for example, the Fourteenth Amendment's Equal Protection Clause.  Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens.[9]  Indeed, in 1868, no state had an operative women's suffrage law,[10] and coverture still held a grip on American gender relations.[11]  And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws."  While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed.  For that reason, the Supreme Court correctly held in Reed v. Reed[12] that the Equal Protection Clause applies to women.  Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens.  Our understanding of what the Equal Protection Clause tells us to look for, however, evolved. 

Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion?  I have my doubts.

Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard.  The Eighth Amendment forbids "cruel and unusual punishments."[13]  But one cannot determine what is "cruel" without engaging in a normative, moral analysis.[14]  For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society."[15]  But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”[16] 

The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency.  Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative. 

Undeniably, originalists make many good points.  But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language.  In doing so, originalists commit the same sin they swear to disavow.

    B.    The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.  

Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench.[17]  But here again, history renders that claim dubious. 

Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law.  Justice Scalia has famously called Blackstone a "thoroughgoing originalist."[18]  Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable.  And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law."[19]  Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[20]  That's hardly the stuff of modern-day originalism.  

Consider, also, Chief Justice Marshall.  In Cohens v. Virginia,[21] Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution.[22]  And in McCulloch v. Maryland,[23] Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."[24]  Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words."[25]  But the fact remains: Marshall was far from the rigid originalist many claim. 

Thomas Jefferson provides another example.  Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling.  But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant.  Jefferson wrote this to Samuel Kercheval in 1816:

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.[26]

All this is not to say that contrary evidence tending to support originalism can't be found.  It certainly can.  But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.

II.    Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.

Most of Professor Lamparello's essay presents garden-variety originalist arguments.  But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.

That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual.  The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt."  But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.[27]

For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air.  And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence. 

Professor Lamparello's theory is also impractical and ahistorical.  James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above.[28]  But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case?  After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue?  If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place?  Wouldn't it be easier to simply say nothing and let the states legislate as they see fit? 

III.    Originalism, while theoretically attractive, does a poor job of constraining judges.

Originalism hails itself as the best way to constrain judges.  Critics have long questioned that claim, too. 

To see why, consider District of Columbia v. Heller.[29]  In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment.  Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition.[30]  And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation.[31]  In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:

Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words.  The older the text, the more distant that interpretive community from our own.  At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . .  [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.[32]

This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate.  In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous.[33]  But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community.[34]  The "living political community" in Heller was the District of Columbia legislature.  But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition. 

And historical questions plagued more than just the Heller majority's holding.  In a dictum, the Court explained the contours of the right it recognized:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[35]

As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes.[36]  "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."[37] 

United States v. Eichman[38] provides another example of how originalism fails to constrain judges.  In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag.[39]  To Scalia's credit, it was a vote against his political predilections.  But it was certainly an odd ruling for an originalist.  The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"[40]--says nothing about non-verbal forms of protest.  And the eighteenth-century conception of the speech right was much narrower than our modern understanding.  According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious.[41]  Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.

Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences.  However, that reflects bad judging, not problems with originalism per se."  Is the truth so conveniently simple?  Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion?  Or is it possible that the problem lies deeper below the surface?

* * *

To be sure, no theory of constitutional interpretation is perfect.  But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do. 

---

[1] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).

[2] See U.S. Const. art. I, § 3, cl. 1.

[3] U.S. Const. amend. XIV, § 1.

[4] U.S. Const. amend. VIII.

[5] U.S. Const. amend. IV.

[6] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).

[7] U.S. Const. pmbl. (emphasis added).

[8] See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”). 

[9] See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).

[10] Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023). 

[11] Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”). 

[12] 404 U.S. 71 (1971).

[13] U.S. Const. amend. VIII.

[14] Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382). 

[15] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[16] Atkins v. Va., 536 U.S. 304, 311 (2002).

[17] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”). 

[18] Id.

[19] Id.

[20] Id.

[21] 19 U.S. 264 (1821).

[22] Id. at 383.

[23] 17 U.S. 316 (1819). 

[24] Id. at 421 (emphasis added).

[25] Sturges v. Crowninshield, 17 U.S. 122, 202 (1819). 

[26] Jefferson Quotes & Family Letters, https://tjrs.monticello.org/letter/1384 (last visited June 20, 2023). 

[27] The Federalist No. 78 (Alexander Hamilton).

[28] The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023). 

[29] 554 U.S. 570 (2008). 

[30] Posner, Incoherence.

[31] Id.

[32] Scalia & Garner, Reading Law at xxv.

[33] Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”). 

[34] Scalia & Garner, Reading Law at xxv.

[35] Heller, 554 U.S. at 626-27.

[36] See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[37] Id. at 200. 

[38] 496 U.S. 310 (1990). 

[39] Id. at 312.

[40] U.S. Const. amend. I.

[41] Posner, Incoherence.

Comments Against Angel Reese Call Us to Check for Bias in Our Writing

As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester.  Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias.  Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express.  While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing. 

One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year.  Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University.  These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game.  Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails.  Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop.  In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”   

The difference:  Clark is white, while Reese is Black.  Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.

As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes,  https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023).  Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.”  Id.   

Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents.  Sultan explained:  the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023).  “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.”  Id.

Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work.  For example, he described what he called stereotypes of sports as:

When Black players are aggressive, and talk trash, they are thugs and animals.

When white players are aggressive, and talk trash, they are passionate and fiery.

This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"

https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/

What can we learn from this incident to catch less obvious bias in our own writing?  The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention.  One shorter answer:  many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias.  Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too.  There are many thoughtful ideas on addressing bias in our legal publications.  For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law:  The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).

I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose.  My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.

When is an appellate decision not precedent?

When is an opinion of an appellate court not precedent? The answer to that question largely depends on the jurisdiction.

In a recent opinion, the North Carolina Supreme Court brought forth another related question: when can the highest appellate court of a jurisdiction decide that an intermediate appellate court's decision is not precedent? The answer to that question also varies from jurisdiction to jurisdiction.

For many years the issue of how to treat "unpublished" opinions--are they precedential or not?--has bounced around in various appellate courts. Before the internet age, unpublished opinions truly were unpublished. After all, the opinions did not appear in the printed reporters and were only available if one went to a clerk's office and asked for a copy. Back then, no one really was citing an unpublished opinion in a brief unless it was for some kind of res judicata purpose--mainly because no one even knew what the opinions said.

At some point, these so-called unpublished opinions began appearing on appellate court websites. And eventually they ended up on Westlaw and Lexis. You can hardly call them unpublished now--not many people reach for a reporter when searching for case law anymore. At most, they may--depending on the jurisdiction--still be considered non-precedential.

After much criticism and at least one opinion declaring unconstitutional the practice of considering opinions denominated unpublished as non-precedential, the Federal Rules of Appellate Procedure were amended in 2006 to provide that courts could not prohibit parties from citing unpublished opinions. See Fed. R. App. P. 32.1(a); Anastasoff v. United States, 223 F.3d 898, 901 (8th Cir.), vacated as moot, 235 F.3d 1054 (2000). Even so, the new rule does not tell the courts that unpublished opinions must be considered as precedent or otherwise how to utilize them. See Elizabeth Earle Beske, Rethinking the Nonprecedential Opinion, 65 UCLA L. Rev. 808, 810 (2018).

States also have various rules concerning unpublished opinions. In North Carolina, for instance, a rule provides that the North Carolina Court of Appeals need not publish an opinion if the panel deciding the case believes that "the appeal involves no new legal principles and that an opinion, if published, would have no value as a precedent[.]" N.C. R. App. P. 30(e). The rule further provides that an unpublished opinion "does not constitute controlling authority" and that citation to unpublished decisions is "disfavored." Id. Nevertheless, the rule does permit citation of an unpublished opinion "[i]f a party believes . . . an unpublished opinion has precedential value to a material issue in the case" and there are no published opinions "that would serve as well[.]" Id.

Additionally, some states provide that their supreme court gets the final word on what opinions of the state's intermediate appellate court are published. In California, the California Supreme Court can "depublish" a decision of the California Court of Appeals. Cal. Rules of Court, Rule 8.1125. In Kentucky, the Kentucky Supreme Court decides which opinions of the Kentucky Court of Appeals are published. Ky. Rev. Stat. § 21A.070.

In a recent decision of the North Carolina Supreme Court, the court decided per curiam that discretionary review of a published North Carolina Court of Appeals decision was "improvidently allowed." Mole' v. City of Durham, No. 394PA21, 2023 N.C. LEXIS 274 (Apr. 6, 2023). The court did not issue a merits opinion. That in and of itself is not unusual. But the court's decision also provided that the court of appeals decision, while "left undisturbed," would stand "without precedential value."

A two-justice concurrence in Mole' stated that "unpublishing" the court of appeals decision was nothing new. Indeed, the court had routinely ruled that decisions of the court of appeals were left undisturbed but without precedential value.

Two dissenting justices in Mole' contended that the high court had in the past left decisions of the court of appeals undisturbed but without precedential value only when at least one of the court's seven justices was recused and the vote of the remaining justices were either equally divided or consisted of a majority of justices not equal to at least four.

The average person, of course, will not find this the least bit interesting. But for those of us appellate types, it does lead to some interesting questions that eventually will have to be answered.

First, is this so-called unpublishing a good idea? Some of the criticism of California's rule allowing for "depublishing" is that it reduces transparency and accountability, permitting the higher court to do away with precedent it does not like without specifying its reasons in writing. See Philip L. Dubois, The Negative Side of Judicial Decisions Making: Depublication as a Tool of Judicial Power and Administration on State Courts of Last Resort, 33 Vill. L. Rev. 469, 476-78 (1988). The concurring justices in Mole', on the other hand, believed the result was better than having a fractured and confusing decision from their court.

Should there even be non-precedential opinions of an appellate court? Some of the original reasons for having unpublished opinions, still noted for example in the North Carolina rule, were the cost of publication and need to provide storage space. See N.C. R. App. P. 30(e). Whether those remain concerns or not, some courts and commentators believe there are constitutional problems related to not treating all appellate court decisions as precedent. See Johanna S. Schiavoni, Who's Afraid of Precedent?: The Debate Over the Precedential Value of Unpublished Opinions, 49 UCLA L. Rev. 1859 (2002).

The bottom line is that the days of unpublished opinions being unavailable for citation are long gone. More and more states eventually will have to come to terms with how to treat these opinions (or whether to even have them) and whether any published case should ever be stripped of its precedential value if not reversed by a higher court.

 

When an Ethics Code is Not Enough

Revelations that Justice Clarence Thomas and his wife received more than two decades of luxury trips and gifts from a billionaire friend, who has donated significant amounts to conservative political causes, have raised the volume on calls for a set of ethics rules for Supreme Court justices. The largesse that took place over two decades to the Thomases largely went unreported on financial disclosure forms the justice filed because he understood that the rules exempted personal hospitality. While others have interpreted the rules to require disclosure, new rules that went into effect in March have removed any ambiguity – and Justice Thomas has indicated that he would report the trips and gifts in the future.

The new information, the product of a ProPublica investigative report, piles onto other developments that have raised the temperature on the absence of a binding ethics code for Supreme Court justices. These include allegations that Justice Samuel Alito or his wife may have leaked the result in Burwell v. Hobby Lobby Stores, Inc. in 2014 several weeks before it was announced, the leak of the draft opinion in Dobbs v. Jackson Women’s Health Org. last year, and Justice Thomas’s refusal to recuse himself from cases arising from the 2020 presidential election even as his wife was involved in activities to overturn its result.

Federal law already mandates that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”[1] That seemingly comprehensive standard also has a largely amorphous quality to it. Still, it is supplemented by a number of specific examples of circumstances that warrant recusal: instances where the justice harbors a “personal bias or prejudice concerning a party” or “personal knowledge of disputed evidentiary facts,” where the justice previously served as a lawyer or practiced with one concerning the matter or was a material witness in the case; where the justice had participated, even to the point of expressing an opinion, in the matter as a government employee; where the justice, a spouse, or child living in the household has a financial or other interest that could be “substantially affected” by the outcome of the of the proceeding.[2]

New rules promulgated by the Judicial Conference and that went into effect in mid-March require federal judges, including Supreme Court justices, to report all travel by private jet and paid-for stays at commercial properties, such as hotels, resorts or hunting lodges.

Still, some members of Congress have pledged to investigate the facts behind the latest revelations and consider imposing an ethics code on the Supreme Court. Senator Sheldon Whitehouse (D-RI) has noted that, out of all federal officials, only Supreme Court justices lack a binding ethics code.

In the absence of a mandatory code, and perhaps to stave off a conflict between branches of government, Chief Justice Roberts has said that the justices voluntarily consult the law applicable to other federal judges in making ethical determinations. From time to time, justices have suggested that the Court might adopt a code of its own, yet mounting pressure has not resulted in a Supreme Court-specific set of rules.

The current financial disclosure requirements applicable to federal judges are subject to review and potential punishment by the chief judge of the respective circuits yet does imbue the Chief Justice with the same authority over the justices. Chief Justice William H. Rehnquist considered that type of discipline or oversight outside of his authority, noticing that recusal was a question that that “each justice must decide” individually under settled practices.[3] In fact, it is often said that the chief justice is merely the first among equals. The chief justice’s dilemma recalls an incident involving Justice James McReynolds, a Woodrow Wilson appointee remembered for racist, misogynistic, and  anti-Jewish outbursts and actions. To assure Justice McReynolds’s on-time arrival on the bench for Court, Chief Justice Charles Evans Hughes sent a messenger with a polite request. The acerbic response from the associate justice: “Tell the Chief Justice that I do not work for him.”

And that highlights the dilemma that any Supreme Court ethics code faces: how can it be enforced? Transparency through disclosure has its benefits, but lifetime tenure provides a significant buffer to any condemnatory reaction from the public, even when the public gives more than fleeting attention to the transgression. However, flaunting disclosure rules or refusing to recuse under the guise of necessity can be harmful to the fair administration of justice. In Caperton v. A. T. Massey Coal Co.,[4] the Court recognized that there are situations, such as one where the financial interest of a political supporter is at stake, that creates a danger of actual bias is so great that the Constitution itself requires recusal.[5]

In Caperton, the failure to recuse required the West Virginia Supreme Court of Appeals to rehear the dispute without the justice who should have recused. If the same situation arose in the U.S. Supreme Court, it would undoubtedly be messier. It would require a decision of the other justices that found a constitutional violation in a colleague’s decision not to recuse. Unless the consequent due-process violation was utterly crystalline, it seems unlikely that the justices would act. That leaves but one other enforcement mechanism: impeachment. And in today’s political environment, the possibility seems theoretical at best. That leaves a new ethics code as largely hortatory, which would still have some value but allow a rogue justice to resist compliance.

 

[1] 28 U.S.C. § 455(a).

[2] Id. at § 455(b).

[3] William Rehnquist, “Let Individual Justice Make Call on Recusal,” Atlanta J.-Const., Jan. 29, 2004, at 15A.

[4] 556 U.S. 868 (2009).

[5] In the new controversy, Justice Thomas’s benefactor, real estate developer Harlan Crow, denied that he had any cases before the Supreme Court or discussed or attempted to influence any case where the justice might have been involved. Still, reports indicate that Crow provided financial support to at least two groups that filed amicus briefs whose views were, unsurprisingly, consistent with the way Justice Thomas voted.

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Center for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

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

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

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

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

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

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

Happy Thanksgiving!

Why Judicial Deference Matters Now More Than Ever

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

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

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

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

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

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

Thankfully, Professor David Bernstein has called out this nonsense:

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

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

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

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

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

1.    National Federation of Independent Investors v. Sebelius

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

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

2.    Kennedy v. Louisiana

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

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

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

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

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

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

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

4.    Roe v. Wade

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

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

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

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

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

6.    Shelby County v. Holder

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

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

***

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

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

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

 

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

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

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

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

[5] Id.

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

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

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

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

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

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

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

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

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

A Few Thoughts on Dobbs v. Jackson Women’s Health

On June 24, 2022, in Dobbs v. Jackson Women’s Health, the United States Supreme Court overturned Roe v. Wade and, in so doing, sparked impassioned reaction in the United States.

Below are a few thoughts on the decision.

1.    The majority was correct.

In today’s climate, particularly in some academic institutions, it’s not advisable to publicly criticize Roe – or praise Dobbs – if you want to advance in your academic career.

But the truth is the truth.

Roe was a terrible decision. The majority got it right.

The right to abortion was not based on any reasonable interpretation of the Constitution’s text. And it was not inferable from the text, particularly the Fourteenth Amendment’s Due Process Clause, unlike, for example, the right to effective assistance of counsel, which can be inferred from the Sixth Amendment right to counsel. It was not rooted in the nation’s history or traditions, which is a critical factor that constrains the Court’s power and prevents justices from creating whatever “rights” they subjectively deem desirable. Instead, the Roe Court created a constitutional right out of thin air, divining such right from the invisible “penumbras” that the Court in Griswold v. Connecticut likewise created out of thin air.[1] And the nonsensical doctrine of substantive due process, which the Court invoked in Planned Parenthood v. Casey to uphold Roe’s central holding, is a legal fiction.[2] Not surprisingly, constitutional scholars of both conservative and liberal persuasions, along with the late Justice Ruth Bader Ginsberg, have recognized that Roe was incredibly, if not irredeemably, flawed.

The Court’s decision reflected a principle that is vital to a functioning democracy and the valuers of federalism, de-centralized governance, and bottom-up lawmaking: nine unelected and life-tenured judges should not have to right to decide for an entire country what unenumerated rights should or should not be recognized when such “rights” are neither contained in nor inferable from the text, or not deeply rooted in history and tradition. The reason for these constraints is obvious: without them, the justices would have the unfettered authority to create – or take away – whatever rights they wanted, whenever they wanted, and for whatever reason they wanted, which would reflect nothing more than their subjective policy predilections.  That is antithetical to a democracy that vests power in the people, not philosopher kings. And for those who claim that the Ninth Amendment is a source of unenumerated rights, they are correct. But where in the Ninth Amendment does it state that the Court has the authority to create those rights, particularly where there is no basis in the Constitution to do so?

Ultimately, Roe was the perfect example of a raw exercise of judicial power. This does not necessarily mean, however, that the right to abortion lacked a textual basis in the Constitution. As stated below, to the extent that there is a constitutional basis to support a right to abortion, it is through the Equal Protection Clause (or possibly the Privileges and Immunities Clause).

2.    Justice Roberts’ approach was sensible but not principled.

Chief Justice Roberts’ concurrence strikes a sensible but not necessarily principled balance between recognizing the fatal flaws in Roe yet respecting the fact that Roe has been the law for nearly half a century. For this reason, Roberts would have upheld the Mississippi law, which banned abortions after fifteen weeks, but not entirely overturned Roe and Casey.

This approach, although understandable given the practical impact of overturning Roe (and, as Roberts put it, the “jolt” to the legal system), is akin to taking a band-aid off slowly rather than ripping it off. Moreover, given the Court’s on-again, off-again relationship with stare decisis, with both liberal and conservative justices selectively applying the doctrine, Roberts’ concurrence appears more as a misguided attempt to preserve the Court’s legitimacy. Indeed, in this and other decisions, Roberts appears to lend more weight to perceptions about the public reaction’s reaction to a particular decision than the text of the Constitution itself. But basing decisions primarily on how the Court’s legitimacy will be affected invariably leads to political decisions and the precise result – a decline in the Court’s legitimacy – that Roberts is so intent on protecting. It should come as no surprise that the public opinion of the Court is now at twenty-five percent.

Put simply, interpreting the Constitution’s text reasonably is the key to the Court’s institutional legitimacy.

3.    Justice Kavanaugh’s concurrence was surprisingly misguided.

In his concurrence, Justice Brett Kavanaugh argued that the decision in Dobbs returned the Court to a position of neutrality on abortion. It is difficult to believe that Kavanaugh believes this to be true.

The Court did not return to a position of neutrality.  Roe was decided 7-2, and in Planned Parenthood v. Casey, the Court by a 5-4 margin affirmed Roe’s central holding. Thus, the Court had previously – and in numerous other cases – affirmed Roe and protected the fundamental right of women to access abortion services.  In other words, it had already taken a position – repeatedly – on whether the Constitution protected abortion.

So, what changed since Planned Parenthood? Nothing – except the composition of the Court, namely, the confirmation of three conservative justices.

This is not to say that appointing conservative justices – and originalists – is a bad thing.  Given the Court’s abortion precedent, however, and the known political affiliations of Justices Kavanaugh, Gorsuch, and Barrett, the notion that the Court returned to a position of “neutrality,” without acknowledging that, since Casey reaffirmed Roe, nothing changed but the Court’s composition, is ridiculous. That’s why Chief Justice Roberts’ approach was arguably the most sensible, although not the most principled, way to decide Dobbs.

Of course, this does not change the fact that, as a matter of constitutional law, Roe was one of the worst decisions in the twentieth century (not as bad, though, as Plessy and Korematsu), that Casey too was profoundly wrong, and that the Court was correct as a matter of constitutional law. The original sin was Roe itself, and the flaws in Roe were compounded by Court’s decision in Casey, which reaffirmed Roe based on untenable constitutional grounds, and on nonsensical justifications such as, “[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.”[3] That’s what you get when you subscribe to “living constitutionalism," which makes about as much sense as substantive due process or the belief that Elvis is still alive.

Having said that, the optic is not good – Dobbs suggests that constitutional rights change based on the political ideologies of the current justices. Kavanaugh’s concurrence displayed a startling disregard of this reality.

4.    Justice Thomas went too far.

With all due respect, Justice Clarence Thomas went too far in his concurrence. Yes, Thomas is correct that substantive due process is a nonsensical legal doctrine, and that Roe and Griswold were constitutionally indefensible decisions.

This doesn’t mean, however, that you revisit and overrule every flawed legal precedent that substantive due process produced. The truth is that, in many instances, the justices must consider the practical consequences of their decisions, and if the Constitution’s text can be reasonably interpreted to support a particular outcome, the Court should reach outcomes that will expand rights and promote, among other things, equality and the equal dignity of all persons. And in some instances, even if a precedent is irreparably flawed, the resulting “jolt” to the legal system and the material harm to citizens that may result can support letting the precedent stand on stare decisis grounds (or, as in the case of abortion, justifying it based on the Equal Protection Clause).

This analysis applies directly to Griswold, which was equally, if not more, flawed than Roe, because the majority, despite recognizing that the text didn’t support invalidating Connecticut’s ridiculous contraception ban, nonetheless decided to invent invisible “penumbras” from which it could single-handedly invent unenumerated constitutional rights.[4]

But that doesn’t mean that Griswold should be overruled. If it was, you can be sure that misguided legislators would try to outlaw contraception. After all, imagine a world where women cannot access contraception and cannot access abortion services.  That’s not a world that most reasonable people want to imagine.

Additionally, Thomas is wrong about Obergefell, which was defensible – and rightly decided – because, like the Seventh Circuit held in Baskin v. Bogan, same-sex marriage bans (and interracial marriage bans) violate the Equal Protection Clause.[5]

Thankfully, there is no support for Thomas’s position on the Court, as the majority explicitly and repeatedly stated that precedents such as Griswold and Obergefell were not implicated by the decision because they did not involve the state’s interest in protecting fetal life. And there is reason to believe the justices in the majority because their reputations would be forever tarnished if they betrayed what they had explicitly written in a prior opinion.

5.    Justice Ginsburg was right – if abortion can be justified by any provision in the text, it is in the Equal Protection                 Clause.

Despite Roe’s indefensible reasoning, there is arguably a basis, as Justice Ginsburg argued, to justify a right to abortion under the Equal Protection Clause. Abortion bans relegate women to second-class citizens. If a woman gets pregnant, she – and she alone – must often bear the financial, emotional, and psychological burdens of pregnancy, not to mention the medical issues (perhaps life-threatening) that some women may face if they are forced to carry a pregnancy to term. The burden on men, however, is not comparable and, in many cases, non-existent. Think about it: a woman who gets pregnant while in college, while pursuing a graduate degree, while starting a job, or while impoverished, must now bear the financial, emotional, and psychological burden of an unwanted pregnancy, which may cause that woman to drop out of school, lose her job, or sink further into poverty. The result is that some women will be prohibited from participating equally in the economic and social life of this country. That is wrong – and that is why the Equal Protection Clause arguably provides a basis to justify a constitutional right to abortion.

The problem is that neither Roe nor Casey was based primarily on the Equal Protection Clause. They were based on a right to privacy found nowhere in the Fourteenth Amendment and, later, on a substantive liberty interest that no reasonable interpretation of the Fourteenth Amendment can support. That is in part why Roe created such a backlash and, ultimately, was overruled.

6.    Imagine where we’d be if the Court had embraced judicial restraint and deference.

If liberals had embraced the concept of judicial restraint, and of deferring more frequently to the decisions of federal and state legislatures, the world might look very different now.[6]

New York’s law regulating who could carry a gun in public would still be on the books. The high school coach who prayed on the fifty-yard line after his high school’s football games would still be fired (although he shouldn’t have been fired). And abortion would still be accessible in every state, albeit with a fifteen-week limitation. For liberals, that sounds like a much better situation than they are in now.

That highlights the problem with judicial activism, which both conservative and liberal justices have embraced at various periods in the Court’s history. As stated above, when you rely on the Court to effectuate social change and disregard the constraints on judicial power, you give nine unelected judges the power to identify and define unenumerated rights for an entire nation based on their subjective policy preferences. And what the Court gives, it can certainly take away. In other words, advocates for an activist Court – conservative or liberal – will see their luck run out when the Court’s composition changes. That is precisely what happened in Dobbs.

7.    Stop criticizing the Court

Predictably, after Dobbs was released, some in the media, and even some scholars, brought out all the usual buzzwords, such as characterizing the decision as misogynistic, white supremacist, racist, and the like.[7] Even President Biden made disparaging comments about the Court that undermined his and the Court’s legitimacy.  Biden had the audacity to state during a conference in Madrid, Spain, that “[t]he one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States, in overruling not only Roe v. Wade, but essentially challenging the right to privacy.”[8] He should be ashamed.

Few, if any, however, including Biden, defended Roe on its merits. How could they? As Laurance Tribe stated, “one of the most curious things about Roe is that, beyond its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[9] Ultimately, the Court’s job is to interpret the Constitution, not reach the outcomes that you like. And even when you disagree with a decision, it’s wrong to hurl insults at the justices. At this juncture, time would be better spent lobbying state legislatures across the country to protect women’s bodily autonomy and provide access to abortion services.

 

[1] 381 U.S. 479 (1965).

[2] 505 U.S. 833 (1992).

[3] Id.

[4] See 381 U.S. 479 (1965).

[5] 576 U.S. 644 (2015); 766 F. 3d 648 (2014).

[6] See Opinion, How Liberals Should Rethink Their View of the Supreme Court (June 21, 2022), available at: Opinion: Liberals should rethink view of Supreme Court - CNN

[7] See, e.g., Ramesh Ponnuru, The Times Distorts Alito’s Draft Opinion, (May 5, 2022), available at: New York Times Distorts Alito's ‘Dobbs’ Opinion | National Review

[8] Alex Gangitano, Biden Calls Supreme Court Overturning Roe v. Wade ‘Destabilizing’ (June 30, 2022), available at: Biden calls Supreme Court overturning Roe v. Wade ‘destabilizing’ | The Hill

[9] See, Opinion, Roe Was Wrong the Day It Was Decided. The Supreme Court Did the Right Thing (June 24, 2022), available at: Roe Was Wrong the Day it Was Decided. The Supreme Court Did The Right Thing | Opinion (newsweek.com)

A Plea for Pro Bono Service

In terms of pro bono service, our profession has a long way to go.  

Model Rule of Professional Conduct 6.1 makes clear that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay."  To that end, the Rule says that lawyers "should aspire to render at least fifty (50) hours of pro bono publico legal services per year." 

Let's be honest, though: 50 hours is pretty paltry.  If you take a two-week vacation, you can still satisfy Rule 6.1 with just one pro bono hour per week.  Even for busy lawyers, that's hardly "aspir[ational]."  Yet a large majority of lawyers aren't even approaching that bare-bones ethical minimum.  In 2017, the ABA's Standing Committee on Pro Bono and Public Service conducted a survey of over 47,000 lawyers across 24 states.  Here's what they found:

• Barely half of responding lawyers provided any pro bono services in 2016.
• Not even 20% of responding lawyers fulfilled Rule 6.1's minimum requirement.
• Roughly one in five responding attorneys reported never having provided pro bono services of any kind.  (Read: Roughly one in five lawyers admitted to having committed professional misconduct.)

And the problem isn't that there's too little pro bono work to go around.  The 2017 Justice Gap Report, published by the Legal Services Corporation, revealed that in 2016, 86% of civil legal problems reported by low-income Americans received inadequate or no legal assistance.  And there's good reason to believe that the pandemic has exacerbated that access-to-justice gap.  

As attorneys, we have a state-sanctioned monopoly on legal services.  If we don't work to close the access-to-justice gap, no one will.  But across the board, we are falling far short of our professional and moral obligations.  We must do better.  

Will Dobbs (and Janus) Overrule Stare Decisis?

    Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization has vast cultural implications for a country mired in starkly divisive political rhetoric. The leak of that opinion also undermines the Supreme Court’s institutional integrity at a time when the public’s trust in the Court was already at an all-time low. But there is another crucial and often overlooked way in which the draft opinion undercuts the Court’s prestige and the public’s reliance upon its opinions: the approach it takes to stare decisis.

    Justice Alito’s draft opinion devotes nearly 30 pages to a discussion of whether the doctrine of stare decisis—the concept that courts should generally uphold prior decisions rather than overrule them—requires following the Court’s 1973 decision in Roe v. Wade and it’s 1992 decision in Planned Parenthood v. Casey reaffirming Roe. Alito begins by offering a few platitudes on the importance of precedent and a list of examples where the Court has previously overruled despite the force of stare decisis. Alito then identifies the “factors” in the stare decisis analysis by relying upon his own recent opinion in Janus v. AFSCME. Just as I have previously predicted, Alito’s draft opinion demonstrates that Janus is now the new loadstar for a version of stare decisis so weak as to be practically meaningless.

    In his Janus opinion, Justice Alito created a new zenith in the “weak” stare decisis tradition. The weak tradition posits that “poor reasoning” in a prior decision is not merely a condition precedent to stare decisis analysis, but is also a substantive consideration in that analysis that may itself justify a reversal. That view stands in stark contrast with the strong version of stare decisis that led the Court to reaffirm Roe in Casey. Under that “strong” stare decisis tradition, a precedent, regardless of the quality of its reasoning, should stand unless there is some “special justification” to overrule it—including whether the precedent defies practical workability, is subject to special reliance interests, is a mere remnant of abandoned doctrine, or is based upon facts that have changed so significantly that the precedent’s rule is no longer applicable.

    Just the Janus opinion did, the draft opinion in Dobbs placed the substantive accuracy of the precedents—the “nature of the Court’s error” and the “quality of the reasoning”—as the first consideration for justices unsatisfied with a precedent. The draft Dobbs opinion then spends eleven pages decrying the reasoning of Roe and Casey, saving far shorter passages for discussions of traditional stare decisis factors like workability. Poor reasoning in a prior decision is thus more than just a reason to turn to stare decisis analysis; it is instead a sufficient condition to overturn decisions.

    The draft Dobbs opinion confirms that a precedent’s reasoning is the only factor that matters when it dismisses, in a little over two pages, society’s reliance interests in a half-century-old opinion. The opinion claimed there was a lack of concrete evidence of societal reliance on Doe and Casey, despite their decades-old vintage. Reliance interests, long the acme of stare decisis concern, thus play almost no role in determining whether to uphold a precedent.

    This elevation of the Janus approach to stare decisis is a grave danger to the stability of our legal system and the reliability of our courts. As I have argued before, poor reasoning provides an ever-present justification for overturning decisions. Conversations about stare decisis only arise, after all, when current Justices believe that a prior decision was substantively incorrect and might warrant a change of direction. Janus and the draft Dobbs opinion, however, tout a version of stare decisis that would be unable to settle disputes independent of the Justices’ views about the substantive correctness of a decision. This significantly undermines doctrinal stability, making it harder for the public to know and understand the law. It also undermines judicial legitimacy in a hyper-polarized society. And it may also undermine legal consistency as lower courts freely deviate from Supreme Court precedent that appears substantively incorrect.

    Arguably, this form of weakened stare decisis is itself so incoherent and unworkable that it could hardly be considered a doctrine at all. That lack of coherence may allow Justices to change their approach to stare decisis over time. A new Justice can begin her career by claiming fidelity to a weak stare decisis tradition that allows her to rapidly overrule cases with which she substantively disagrees, only to transition to a strong stare decisis tradition later in her career in an effort to protect her perceived gains from overrule by subsequent judicial generations. Such waves in stare decisis are intellectually inconsistent, as the Justice who ascribes to changing conceptions of stare decisis over time in fact ascribes to no real, binding version at all. Furthermore, the constant churn in legal doctrine would render stare decisis so malleable as to become meaningless, rendering all precedents vulnerable to overrule at any time.

    In the Dobbs draft opinion, Justice Alito is careful to note that the ruling does not threaten precedents that do not concern abortion. But the draft opinion suggests far more malleability in all forms of precedent than Alito’s assurances. The draft opinion perpetuates a weakened version of stare decisis that undermines the finality of any decision, at great risk to a politically divided nation.

Roe v. Wade is Probably Going to the “Graveyard of the Forgotten Past”

   Based on the stunning and unprecedented leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, a slim majority of the Court may overturn Roe v. Wade and Planned Parenthood v. Casey and return the abortion issue to state legislatures – and the democratic process where it always belonged. Before discussing Roe in detail, a few developments from the last week warrant mention.

    First, the leaker, who is possibly a misguided law clerk, is a disgrace. The idea that you can assert political pressure on the Court – an independent branch of government – is ridiculous. What’s shocking is that this leaker is likely from a top law school. And the incredible lack of judgment – apparently believing that such pressure would influence the Court’s decision – shows the leaker has no respect for the Court’s institutional role and no regard for the need to insulate the Court from political pressure,

    Second, the misleading and, quite frankly, intellectually dishonest comments by some scholars, politicians, and journalists – along with threats to protests at the justices’ homes – misrepresent fundamentally the impact of reversing Roe, misapprehend the Court’s role in a constitutional democracy, and threaten to undermine severely the Court’s legitimacy. Put simply, the Court’s job is not to base its decisions on policy outcomes that the public deems desirable; its job is to interpret the Constitution.

    Third, public discourse following the unprecedented leak of Justice Samuel Alito’s draft opinion demonstrates a startling disregard for the fatal flaws in the Court’s abortion jurisprudence, which both liberal and conservative scholars, including Justice Ruth Bader Ginsburg, identified in the decades after Roe was decided. The fact that scholars, politicians, and journalists have so utterly misrepresented Roe and made unhinged attacks on the Court, shows how significantly this discourse has declined in quality and integrity.

I.    The Reality of Abortion Jurisprudence

    As a matter of constitutional law, Roe is one of the worst decisions in the last century (outside of, for example, Plessy and Korematsu). To begin with, Roe has no basis in the text of the Constitution. Furthermore, the right to abortion is not inferable from any textually-grounded right. Finally, the right to abortion is not deeply rooted in the nation’s history and traditions.

    A.    Abortion has no basis in the text of the Constitution.

    In Roe, the Court based its decision on, among other things, the Fourteenth Amendment’s Due Process Clause, which provides in relevant part that “no state shall … any person of life, liberty, or property, without due process of law.”[1] Essentially, this means that states must afford citizens fair procedures (e.g., a trial) before citizens can be executed, imprisoned, or subject to property forfeiture. Nowhere in this language can any substantive constitutional right be discerned, particularly the right to abortion.

    And the Court in Roe likely knew that.

    However, the Court remained undeterred and instead relied on Griswold v. Connecticut to invent a fundamental right that no reading of the Constitution’s text could possibly support. In Griswold, the Court invalidated an admittedly-ridiculous law that banned contraception.[2] In so doing, the Court held that, although no specific textual provision supported invalidating the law, the Bill of Rights contained invisible “penumbras, formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance"[3] On the basis of these judicially-created “penumbras,” the Court discovered a substantive right to privacy in the Constitution, even though the majority could not identify exactly where in the Constitution this right “emanated.” In other words, the Court blatantly manipulated  -- in fact, ignored – the Constitution’s text, to reach a result that no interpretation could support, but that their justices preferred based on their subjective values.

    Subsequently, the Court in Roe relied on this nebulous and impossible-to-define (or limit) right to privacy, holding that this “right” was “broad enough” to encompass a right to abortion. To make matters worse, in Planned Parenthood v. Casey, the Court, in reaffirming Roe, held that the word “liberty” in the Fourteenth Amendment’s Due Process Clause encompassed various unenumerated and substantive liberty interests that cannot be found anywhere in the Constitution – but that the justices subjectively deemed necessary to protect citizens’ liberty. In so holding, Justice Anthony Kennedy wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.”[4]

    One can hardly find decisions or language (the “mystery of life” passage) more anti-democratic and more untethered to the Constitution’s text.

    It should come as no surprise that liberal and conservative scholars overwhelmingly condemned Roe’s reasoning. Even Justice Ruth Bader Ginsburg believed that Roe was far too sweeping, such that “it seemed to have stopped the momentum on the side of change.”[5] Additionally, as Professor John Hart Ely stated:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.[6]

    Likewise,  Harvard Law Professor Laurence Tribe stated that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[7] The list goes on and on, but you get the point.

    It should also come as no surprise that, in current discourse, very few scholars defend Roe on its merits.

    The Court should have never gotten involved in the abortion issue. Because the Constitution was silent on this issue, and because no provision could have possibly been interpreted to protect a right to abortion, this was a matter for the people to decide, not nine unelected judges.

        B.    Abortion is not inferable from any textually-based right.

    The above argument is not meant to suggest that the Court cannot and should not create unenumerated constitutional rights, particularly where those rights are inferable from the text. Certainly, the First Amendment right to free speech implies a right to assembly. Likewise, the Fifth Amendment right against self-incrimination implies that the prosecution cannot comment on a defendant’s refusal to take the stand at trial (this is not an implied right per se, but you get the point). Similarly, the Sixth Amendment right to counsel implies the right to effective assistance of counsel and the Eighth Amendment ban on cruel and unusual punishment implies a right to be free from punishments that are disproportionate to the crime of conviction (or the defendant’s blameworthiness).

    Nowhere in the Fourteenth Amendment’s Due Process Clause, however, is the right to abortion even remotely inferable. And that is the point. There was no constitutional basis for creating this right.

        C.    Abortion is not deeply rooted in the nation’s history and tradition.

    To the extent that scholars and some members of the Court support the substantive due process doctrine and the creation of unenumerated rights under this doctrine, it comes with two caveats: first, those rights must be deeply rooted in the nation’s history and traditions. For example, such rights include, but are not limited to, the right to travel and the right to educate and rear one’s children.[8] The right to abortion, however, is not deeply rooted in our nation’s history and tradition and was widely outlawed for most of American history.

    Additionally, the asserted unenumerated right must be carefully and narrowly described. In Washington v. Glucksberg, the Court emphasized this point when holding that the Constitution did not protect a right to assisted suicide.[9] In so doing, the Court emphasized that its members should be hesitant to create unenumerated rights because doing prevents the people in each state from deciding these issues democratically and thus from determining from the bottom up, not the top-down, which unenumerated rights should be recognized.

    The Court’s decisions in Roe and Casey underscore the problem with creating nebulous unenumerated rights, such as the right to “privacy” and “liberty,” and then creating new rights based on these broad formulations. Specifically, these so-called rights have no conceivable limitations and could theoretically encompass unenumerated rights (and policy outcomes) that the justices deem desirable, that have no relationship to the Constitution, and that reflect nothing more than subjectivity and arbitrariness. That is a prescription for anti-democratic governance because it allows nine unelected judges to impose their policy predilections on an entire nation – without any accountability whatsoever. After all, why doesn’t the right to privacy and liberty encompass a right to use illegal drugs, marry a family member, or commit suicide? That, in a nutshell, is the problem with Roe.

    It's also the problem with relying on natural rights theory to create unenumerated rights. Such an approach would be equally, if not more, broad and limitless than privacy and liberty, and would cause the same problem: the justices could “discover” whatever right they want whenever they wanted. This would lead to a constitutional jurisprudence of the most undemocratic kind.

    Ultimately, Roe and Casey are likely to be overturned despite principles of stare decisis. These decisions were, as Justice Alito said in his draft opinion, egregiously wrong.

II.    Overturning Roe will not endanger other constitutional rights.

    Some commentators have suggested that overturning Roe and Casey will lead the Court to overturn other decisions, such as Loving v. Virginia, which rightly invalidated bans on interracial marriage, and Obergefell v. Hodges, which rightly invalidated bans on same-sex marriage.[10] This concern is misplaced. Unlike Roe, cases such as Loving and Obergefell were based in substantial part on the text, namely, the Equal Protection Clause.

    Roe, however, was not – and that again is the problem. Indeed, a plausible argument could be made that abortion bans violate the Equal Protection Clause. Specifically, such bans prohibit women from participating equally in the social, economic, and political aspects of our society because they force women to bear the financial, emotional, and psychological burdens of an unwanted pregnancy. Had Roe been based on the Equal Protection Clause, it would have had a sounder and more justifiable constitutional basis.

III.    The real threat that overturning Roe and Casey presents.

    Despite Roe’s and Casey’s obvious flaws, overturning these decisions at this point – nearly fifty years after the Court decided Roe – will severely undermine the Court’s institutional legitimacy.

    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 Petitioners 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, however, ill-founded, can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2022 than there were in 1973 or 1992. That is the point – and the problem – with overturning Roe and Casey now. In short, yes, Roe and Casey were terrible decisions, but at this juncture, overruling them is almost certain to cause more harm than good, particularly to the Court’s legitimacy and to women. On the merits, however, the downfall of Roe and Casey is understandable as a matter of constitutional law.

      In any event, Roe and Casey are perfect examples of how not to create unenumerated rights. When you give the Supreme Court the right to identify enumerated rights for an entire nation based on broad standards that invite subjectivity and arbitrariness, and when you base your view of a decision’s legitimacy on whether it comports with your policy predilections, democracy truly is in danger. The Court’s job is to interpret the Constitution, not to reach outcomes that you like. Put simply, the process by which the Court reaches its decisions is equally, if not more, important than the outcomes themselves.

 

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

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

[3] Id.

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

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

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

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

[8] See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Wisconsin v. Yoder, 406 U.S. 205 (1972).

[9] 521 U.S. 702 (1997)

[10] 388 U.S. 1 (1967);  576 U.S. 644 (2015).

A Hybrid Future for Oral Argument?

Happy end of the semester and end of moot court season for all of the academics and coaches out there. While most academic classes have been in-person this year, many moot court competitions have remained virtual.

Readers of this blog will remember that in March 2020, I posted about how the University of Arizona James E. Rogers College of Law moved its intramural moot court competition online in the wake of the COVID-19 pandemic. We learned a lot during that experience, and conducted the competition virtually last year. We were far more prepared for an online competition. I appreciated that I could draw judges from across the county--including a final panel that consisted of two Ninth Circuit judges and one Fifth Circuit judge. I also loved using an online scoring tool that did away with my manual entry of scores.

This year, however, we opted for an in-person competition. It was nice to see the judges and students in person, and the competition started the week after the University lifted its mask requirement, another plus for oral argument. And while the bulk of judges and students appeared in person, we did get to experience two types of hybrid arguments--arguments that give me hope for a hybrid oral argument future.

The first hybrid argument involved three in-person judges, one in-person student, and one virtual student. The student had traveled to the Federal Bar Association Indian Law Conference, but then advanced to the elimination rounds that Saturday.  We held the round in our appellate courtroom, with the student appearing on a huge television screen facing the judges. Our fabulous IT team brought in a camera that we placed in the courtroom to focus on the bench, so the virtual student could see the judges. We did not have a camera on the in-person student, which was certainly a downside.  Overall, the argument went really well, and the virtual student even advanced to the semi-final round! We did have a few sound issues, which could have been improved by the student using some type of earbuds or headphones and better speakers in the courtroom. 

Our second hybrid argument was the final round, where one of our judges needed to appear remotely. This argument was held in our largest classroom. We placed the in-person judges at two tables in the front of the room. Between the two tables was the podium for teaching. On the podium was a monitor and camera, which faced the advocate. We also had the big pull down screen that we typically use for class powerpoints and materials.  Our virtual judge appeared both on the smaller monitor on the podium and the big screen. The smaller monitor with the camera allowed the advocate to look directly at the judge (and the other judges who were at a similar eye level. The large pull down screen allowed the participants to see the virtual judge. Once again, the hybrid format worked well. The virtual judge was able to actively participate, and there were only a few times where I thought we had sound issues.

As I noted above, these experiences give me hope for a hybrid oral argument future. I have been clear before on this blog that I support virtual arguments for attorneys who request them. With the right technology and a little bit of understanding, virtual arguments can be a successful alternative to an in-person argument.  This is even true if some attorneys or judges are in-person.  I was at our intermediate appellate court last week. Although the courtroom isn't new--it has been modified for online arguments, including cameras at both counsel tables and at each judge's seat. I suspect that persons designing courtrooms of the future will include better cameras, screens, and speakers for virtual or hybrid arguments.

While I suspect that moot court competitions will move more in-person next year, I am encouraged by this embrace of technology for the future.

Appealing TROs: Some “Practical” Advice

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

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

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

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

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

Guest Post: Drug Courts: A Well-Intended but Misguided Approach to Treating Drug Addiction

This post was written by Daria Brown, a graduating senior at Georgia College and State University and the President of Georgia College's Mock Trial team. Daria will begin her first year of law school in the fall of 2022.

     Addicts don’t belong in prison. And drug courts are not a proper solution. 

     In recent years, drug courts have proliferated in many states as an alternative to incarceration for low-level drug offenders. Ostensibly predicated on a rehabilitative rather than punitive paradigm, drug courts strive to provide low-level drug offenders with treatment in lieu of incarceration. 

     But upon closer examination, drug courts aren’t the solution. In fact, they are part of the problem because they retain a punitive approach to treating drug offenders and perpetuate precisely the type of moral blameworthiness—and lack of empathy—that often plagues those who struggle with addiction, and makes it difficult, if not impossible, for such individuals to lead fully recovered lives. 

     This article proposes a new approach that advocates for a truly rehabilitative, rather than retributive model, and that attempts to replace condemnation with compassion.

     By way of background, as a response to the overwhelming number of arrests for minor drug law violations in the 1980s and 1990s, drug courts were created to serve as an alternative correctional -- and rehabilitative -- approach for defendants charged with low-level drug crimes, such as possession of marijuana. And these courts have experienced some degree of success, as many individuals -- who would have otherwise been incarcerated -- have recovered from their addictions and proceeded to live productive lives. 

     The truth, however, is that these stories are the exception, not the rule. And the inconvenient truth is that drug courts, while well-intended, are fundamentally flawed for several reasons. Most prominent among them is that drug court programs misunderstand the nature of addiction, unjustifiably retain punitive elements that reflect stigmatization of addicted offenders and fail to provide the type of treatment protocols that are essential to maximizing positive outcomes for offenders. Those flaws are detailed below, followed by principled solutions that will enhance the efficacy and fairness with which we treat individuals who struggle with addiction. 

I.    The Problems

    A.    The individuals responsible for implementing and overseeing treatment of addicted offenders have a limited understanding of addiction. 

     Prosecutors and judges are given complete discretion over who is referred to drug court and which treatment is most appropriate for each individual. For example, prosecutors are given the power to “cherry-pick” participants who they believe will be successful in the program, and often intentionally exclude precisely those defendants who need the most help, namely, those with a history of addiction.[1] As such, offenders who are in dire need of treatment often receive no treatment at all and are instead relegated to a prison where they routinely decompensate. 

     This should come as no surprise. After all, why should prosecutors and judges, who have no education and experience in addiction or psychology, have the power to determine which defendants receive treatments, and the authority to set the parameters of that treatment? It is equivalent to permitting a cardiologist to determine whether a patient suffers from bipolar disorder. If drug courts are serious about providing efficacious and meaningful treatment to those offenders who need it, they should not entrust decision-making authority with individuals who know nothing of the problem that drug courts are designed to treat.

    B.    Drug courts strive to rehabilitate yet retain a punitive model that decreases the likelihood of successful treatment.  

     You can’t scare people into recovery. It’s like a parent telling a child that, if they continue to listen to a certain type of music, they will be grounded for six months. That might work in the short term. It utterly fails in the long term. Drug courts suffer from this problem. Put differently, if you are committing to a rehabilitative model, you have to be truly committed to that model. 

     Indeed, drug courts have adopted two intrinsically contradictory models which undermine their efficacy: the disease model (rehabilitative) and the rational actor model (punitive). The disease model recognizes that drug use for addicted individuals is compulsory and not morally blameworthy. Conversely, the rational actor model states that any given decision-maker is a rational person who is able to evaluate positive and negative outcomes to make the most rational decision—and thus would attach moral culpability to drug addiction. 

     Unfortunately, drug court programs embrace these contradictory models and, in so doing, impede treatment efficacy and, ultimately, an offender’s prospects for a full recovery. To be sure, in a drug court treatment program, an individual is given treatment based on the underlying assumption that they have an addiction, but if they fail to comply with all treatment protocols, they are threatened with punishment, including incarceration. 

     These models cannot function together because the rational actor model misunderstands the nature of addiction and the road to a successful recovery. Indeed, recovery is a difficult path, where setbacks and relapses are often common. Failing to understand the turbulent road to recovery forces addicts to attempt recovery under the shadow of shame and condemnation, and when a setback occurs, treatment is withdrawn and punishment, including incarceration, implemented. This is a prescription for failure.

    C.    For the participants who could benefit most from treatment, failure is far too common.

     For individuals who struggle with addiction—and are selected to participate in a drug court program—in most cases, they must plead guilty to their charges as a condition of their referral. And if an individual fails to complete the program, a person may not amend their guilty plea. Therefore, these people lose both the opportunity to plead guilty to a lesser offense and receive support services essential to their recovery. Furthermore, in some instances, a person struggling with addiction may face a longer sentence than they otherwise would have if they hadn’t been referred to drug court in the first instance when considering the days or weeks of incarceration they endured during the program as punishment for relapse or other minor infractions plus their full sentence decided by the judge upon removal from the program. 

     This troubling dynamic begs the question: what is the purpose of drug courts? Do they reflect a principled commitment to treating the issues underlying addiction? Do they focus on maximizing positive outcomes for offenders, many of whom are from marginalized communities—which requires tolerance of and treatment for setbacks, including relapses? Or do they reflect a half-hearted attempt to provide treatment that, upon the first hint of non-compliance, leads to incarceration and cessation of all treatment efforts? In many instances, it is the latter. And that makes drug courts rehabilitative in name only and restorative in theory but not in fact. 

     These are only a few of the major issues involved in drug court programs, but they demonstrate a fundamental need for a more suitable solution to address addiction, remove stigmatization, and provide meaningful rehabilitation. Below are three policy recommendations that would improve the efficacy and fairness and drug treatment in the criminal justice system.

II.    The Solutions   

    A.    Trained psychologists and psychiatrists -- not prosecutors and judges -- should evaluate all criminal defendants who struggle with drug addiction. 

     Many drug users struggle with serious and life-threatening addictions. And many of these people also suffer from mental health issues, such as depression or bipolar disorder, potentially using illegal drugs to self-medicate. For this and other reasons, trained psychologists and psychiatrists should evaluate and recommend the proper course of treatment for all defendants charged with drug crimes. These experts, unlike prosecutors and judges, understand addiction and mental illness, and thus can recommend and implement individualized treatment that will have the highest likelihood of success. In many instances, such treatment will likely include administering medication and providing cognitive behavioral therapy, as both psychiatric and psychological treatment increase substantially the likelihood of recovery.

     Furthermore, rather than being forced to plead guilty to a charged offense, the person should be granted a continuance for their case for a period of time deemed appropriate for treatment based on a psychiatrist’s and psychologist’s recommendations. Additionally, if a person is financially disadvantaged and unable to afford the medication prescribed and treatment recommended, the government should supply aid necessary to cover these costs. After all, if the criminal justice system is truly committed to rehabilitation, then it should put its money where its mouth is—figuratively and literally. 

     Now, if an offender struggling with addiction or mental illness is charged with a violent crime, the offender’s psychiatrist and psychologist should include in their assessment what effect, if any, the underlying disorders may have on the defendant’s culpability. Furthermore, if a defendant pleads or is adjudged guilty, the court should consider these assessments as mitigating factors at the sentencing stage. This will result in truly individualized sentences that reflect moral blameworthiness more accurately and result in less severe sentences more frequently. 

     Finally, this approach would prevent prosecutors—who have no expertise in understanding or treating addiction or mental illness—from cherry-picking which defendants are worthy of treatment, from imposing arbitrary barriers to accessing such treatment, and judges from implementing treatment programs that have minimal, if any, likelihood of success. 

    B.    The stigma and discrimination directed to individuals struggling with addiction and/or mental illness must end now. 

     Individuals who struggle with addiction or mental illness should never be stigmatized or marginalized. These people are forced to carry around society’s label of “otherness,” and that “otherness” leads to being denied admission to universities, rejected from employers, and ostracized by community members. This is wrong.  Giving people a second chance reflects empathy and understanding, which is often lacking from even the most passionate advocates of social justice. 

     Indeed, when jobs and education opportunities are gate-kept from individuals simply because they have a past, it perpetuates the cycle of recidivism and relapse that is so common in cases of substance abuse. Most importantly, it dehumanizes people who have fought valiantly to overcome addiction and adversity and disregards the inherent human dignity that all humans possess. Simply stated, we need to recognize that all humans are flawed and that, ultimately, we all share similar struggles. Treating people with compassion is essential to achieving justice in a meaningful and transformative manner. 

     C.    Implement community-based solutions that place individuals in the best position to achieve permanent recovery. 

     One of the major issues with drug court programs and incarceration is the lack of support upon reentry into society, which often prevents individuals from achieving the level of financial and social stability necessary to avoid reoffending. 

     Community-based solutions can help to facilitate an individual’s transition into society and provide the support necessary to prevent relapse or recidivism. And these solutions can encompass a wide range of possibilities. For example, volunteers in the community may be granted tax breaks if they agree to mentor these individuals and help them adjust to their new life and assist their mentees in signing up for or getting involved in other community-based solutions.

     Other community-based solutions may include granting the recently recovered person a lifetime membership to a community center such as the YMCA and contracting with local businesses to offer employment to individuals after successful completion of treatment. These businesses could receive tax breaks for their cooperation and continued dedication to affording opportunities to individuals who suffered from—and overcame—addiction or mental illness. Such an approach can help individuals to achieve stability and autonomy and to take responsibility for their lives and happiness. It also reflects the belief that giving people an opportunity to start anew is a chance worth taking. 

     Ultimately, current drug court programs, while well-intentioned, are not well-designed. The problem is that addiction and mental illness are largely misunderstood, often mistreated, and unnecessarily maligned. Dispensing with these stereotypes, which result in marginalization and discrimination, is the predicate to implementing meaningful and principled treatment programs. Most importantly, recognizing that people deserve a second chance, that morality has no place in addiction discourse, and that punishment is frequently devoid of purpose, is the first step to enacting reforms that respect human dignity and that reflect empathy for those that the criminal justice system has unjustly relegated to inconvenient enigmas. 

 

[1] See Drug Policy Alliance, Drug Courts Are Not The Answer: Toward A Health-Centered Approach to Drug Use, (March 2011), available at: https://drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf 

A Limited Time For Term Limits

    President Biden’s Supreme Court Commission recently offered a public preview of its recommendations for Supreme Court reform, with their final report due next month. The Commission’s early work showed deep division over adding new Justices to the Court, but wider support for judicial term limits—even if the process of enacting such limits remains unclear. The same might be said of Americans more broadly. Recent polling shows little public appetite for appointing additional Justices to the Court, but a more evenly divided opinion on term limits for the Justices.

    The Commission’s alignment with public opinion may be welcome news for the Biden administration, even though it was likely unintentional. The Commission is largely comprised of legal scholars with long histories of analyzing and critiquing the Court’s work. The group is at least somewhat ideologically diverse, including members who would apply a more originalist interpretive method to constitutional issues, though such views are in the minority. But few of the Commission’s members have long experience in public policy or legislation. And many have proposed similar term limits in their past academic work, suggesting that the alignment with public opinion is accidental rather than intentional.

    The Commission’s preview suggests a path to Supreme Court reform that does not threaten the judiciary’s institutional integrity as much as a court packing plan would. Court packing is a purely partisan game that can be played by members of both parties. Once the floodgates to court packing are open, there is little to stop additional efforts by future administrations of any ideological stripe to alter the makeup of the Court. Even if the public’s opinion of the Court has rapidly soured in recent years, a step as drastic as court packing seems likely to further undermine the Court’s legitimacy. Adding members may even impede the Court’s ability to hear cases in the short term as a shifting (and growing) cast of Justices is added to the bench by administration after administration.

    Term limits hold more promise as a subtler method to moderate the Court’s ideological swings without all-out partisan warfare. Once phased in, term limits would allow subsequent administrations a relatively even and predictable number of appointments to the highest court. Term limits have the potential to lower the partisan temperature over the appointments process, simply by precluding political parties or retiring Justices from gaming the appointment process to ensure that new members have a specific ideological view. Much must still be worked out, including how to stagger the terms to allow seats to open regularly during every administration; how to phase the limits in with the existing members of the Court; how to handle unexpected changes in the Court’s membership due to illness or death; and whether changes can be made legislatively or only through constitutional amendment. But term limits at least offer the possibility of a more moderate shift in the way the Court does business.

    Term limits might also provide the Biden administration a path to cathartic action on an important topic for many Democratic constituents that is less drastic and divisive in the eyes of the broader public. The administration and the Commission may hope that term limits are perceived as an important and necessary action to rebalance the Court’s ideological skew, but a slow-building one that will only reduce ideological polarization over the course of generations. Would such a plan be enough to mollify the Democratic base? Much might depend upon the outcome of particularly charged cases this term, including the challenge to Roe v. Wade that the Court will hear next month in Dobbs v. Jackson Women’s Health Organization. That outcome may ignite the push for more drastic reform as an immediate response. The alignment between public opinion and the Commission’s views might thus be short-lived. If the administration hopes to act on less-dramatic reforms like term limits, the best time may be now.

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).