Sunday, November 28, 2021
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. 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.
 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
Sunday, November 14, 2021
In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court. 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. 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.” 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. 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. 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." 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. 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. 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.
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.”
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. 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. Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.
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.
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.  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. 
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. 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.
 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)
 381 U.S. 479 (1965).
 Id. (emphasis added) (brackets added).
 410 U.S. 113 (1973).
 505 U.S. 833 (1992).
 See id.
 554 U.S. 407 (2008).
 524 U.S. 417 (1998).
 567 U.S. 519 (2012).
 See id.
 See id.
 570 U.S. 529 (2013).
 591 U.S. , 2020 WL 3492640 (2020).
 579 U.S. 582 (2016).
 138 S. Ct. 2448 (2018).
November 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Sunday, October 10, 2021
If the solution is simple, it might not actually be a solution. Last week, another contributor to this blog suggested that a six-vote supermajority rule could help resolve concerns about the Supreme Court being just another political institution rendering political decisions. The suggestion struck me as misguided and ineffective.
In recent weeks, no fewer than four justices have spoken out that they are not, as Justice Amy Coney Barrett put it, “political hacks.” Each made the point that they adhere to a judicial philosophy, rather than carry their political preferences into law. Although I have no doubt that each believes that to be true, the judicial philosophies that each espouses, on many of the hot-button issues that come to the Court, tend to coincide with views of the political party of the president who appointed them, which is why modern Supreme Court nominations generate deep political schisms. To be sure, there are occasional “strange bedfellows,” where the majority line-up includes justices thought to have incompatible philosophies/politics and where the results surprise. Still, most decisions seem to follow political views as much as judicial philosophy so that any distinction that exists appears, at best, a subtle one.
Accusations that the Court is engaged in politics are not new and would not change if a supermajority requirement were adopted. Two of the most important constitutional law decisions issued by the Court, both of which were unanimous, were criticized as political and evinced a political tinge. The dispute in Marbury v. Madison, for example, came out of the political growing pains of a new nation during the first transition of power from one political party to another. The Federalist administration of John Adams tried to seed the judiciary with party loyalists, just as Democratic-Republican Thomas Jefferson was about to take office. In the rush of appointing “midnight judges,” some commissions were not delivered by Secretary of State John Marshall before his successor, James Madison, took office. It was Madison’s refusal to deliver those commissions that resulted in William Marbury’s lawsuit seeking to complete his appointment as a justice of the peace.
The new Congress recognized the case would be decided by Federalist appointees, including John Marshall, himself a midnight judge. It cancelled the upcoming Supreme Court term, delaying the case. When the Court finally heard the matter, it was fully aware of the political stakes involved and how a politically problematic decision would generate retaliation against the Court. As the administration and Congress feared, the Court held Marbury was entitled to his commission. Yet, in a masterful twist, the Court also held it was without authority to provide relief because the congressional authorization giving the Court jurisdiction to issue a writ of mandamus conflicted with the Constitution’s limited grant of original jurisdiction. The Court struck down this extra-constitutional authorization, exercising the power of judicial review. It avoided a confrontation with the Jefferson administration over its power to order the seating of Marbury, while establishing the Court as the venue where the Constitution would be authoritatively construed and laws struck as unconstitutional. The decision was a balancing act that operated to preserve – and, indeed, strengthen – the Court as an institution.
The second landmark foundational case, Brown v. Board of Education, unanimously struck the separate, but equal doctrine. Though it now, deservedly, garners laurels, it generated a storm of criticism at the time, including a massive-resistance movement and Senator James O. Eastland’s declaration that the opinion was a “legislative decision by a political court.” The decision came to be in large part because Chief Justice Earl Warren used his political skills honed as governor of California and the Republican vice presidential nominee before taking the bench to work his colleagues so that a single authoritative opinion spoke for the Court. Similar “political” considerations resulted in the decision in Cooper v. Aaron, signed by each of the justices as though co-authors, to express the Court’s emphatic intolerance of delays in desegregating Central High School.
These decisions did not merely hew to some abstract concept of law existing somewhere only to be found, but recognized the legal questions being answered existed in a political world in which the Court’s authority would be questioned.
Requiring a supermajority vote fails to assure public confidence and respect. It is not the line-up of the vote, but the reasoning and consequences that count. Some of the worst decisions in Supreme Court history boasted overwhelming support among the justices, such as: Dred Scott v. Sandford (7-2, holding that African-Americans could not be U.S. citizens and likely precipitating the Civil War ); Plessy v. Ferguson (7-1, creating the separate-but-equal doctrine); Korematsu v. United States (6-3, upholding the internment of Japanese-Americans during World War II); and, Buck v. Bell (8-1, finding no constitutional impediment to a state law mandating sterilization of those deemed “feebleminded” to prevent future generations from inheriting “bad” genes). In each of these cases, the political considerations were determinative.
The point is that a 6-3 supermajority requirement provides no guarantee that the Court will render decisions divorced from politics – or – decisions that are sounder from some hypothetical purely legal perspective. And a more closely divided Court is no more or less legitimate than one that garners an additional vote or two for its majority.
The proposal aired in this blog specifically argued in favor of at least six votes to affirm or reverse a lower court decision. Without a supermajority, the proposal would let the lower court decision, whether it was made in federal or state appeals courts, stand, even if it were the product of a bare majority on that court or constituted a plurality opinion. Those consequences, however, would produce their own political dynamics – a Supreme Court able to avoid controversy due to a lack of supermajority support for one result or another, disharmony on federal questions across the circuits and state courts so that federal law would be different depending on where a person lived, and, possibly, even summary reversals of decisions disliked by a supermajority without an agreed-upon ratio decidendi, creating uncertainty about what rule of law applies. None of these consequences are more desirable than the current approach.
A supermajority requirement simply would not depoliticize the Court.
 5 U.S. (1 Cranch) 137 (1803).
 347 U.S. 483 (1954).
 358 U.S. 1 (1958).
 60 U.S. (19 How.) 393 (1857).
 163 U.S. 537 (1896).
 323 U.S. 214 (1944).
 274 U.S. 200 (1927).
Saturday, October 2, 2021
A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court
The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court. Three factors arguably explain the reasons underlying the public’s negative perception of the Court.
1. Chief Justice John Roberts
Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.
Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.
The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.
Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.
2. The Shadow Docket
The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.
Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences. Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).
So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.
3. The Justices’ Political Views
If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.
Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.
And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.
This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.
Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras, seeking to discover new rights that reflect the “heady days of the here and now.” That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.
Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. Specifically, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues divisive, controversial – and politicized – decisions.
Furthermore, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would likely be minimized.
Finally, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash.
Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.
 See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)
 Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).
October 2, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Tuesday, September 28, 2021
Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.
A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.
Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.
Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.
Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.
Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.
Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.
September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)
Monday, September 27, 2021
Two weeks ago I blogged about Lance B. Wickman's article, Lawyers as Peacemakers, in the most recent issue of the Journal of Appellate Practice & Process. Today, I want to discuss part of Dean Erwin Chemerinsky's article--The Non-United States of America.
Dean Chemerinsky spends the first half of his article positing reasons for the deep partisan divides in our country. He identifies structural aspects of our governmental system, like the Electoral College, as partially responsible. He also looks at the role of the media, former President Trump, and the COVID-19 pandemic. According to Dean Chemerinsky, the "deep partisan divide in the United States" is "the greatest threat to democracy that [our country] has faced" and could lead to "serious talk of secession." Despite these dire words, he remains "an optimist and believe[s] that there is much more that unites the American people than divides us."
In that spirit, he offers one suggestion--"change the method of picking Justices and lower federal court judges to make it less partisan." Dean Chemerinsky points to states like Alaska that have a merit selection process for picking state court judges. Arizona has something similar. Our Judicial Nominating Commissions take applications for open judicial positions. The Commissions interview candidates and send a bi-partisan list to the governor, who selects a judge from that list. Many merit selection states have systems modeled after the state of Missouri.
According to Dean Chemerinsky, former President Jimmy Carter used merit-selection panels for judicial vacancies. Dean Chemerinsky recommends that such panels be ideologically diverse and include non-lawyers. These panels would give the president at least two names to fill vacancies, and the president would promise to select from the list. Obviously, this would be a change from how presidents have nominated judicial candidates in the past. Traditionally, presidents rely heavily on the home state senators who are of the same party as the president for names.
Such a panel is an interesting idea. Dean Chemerinsky states that the panels should send "the most qualified individuals" to the president, but that is certainly an objective standard. And Dean Chemerinsky recognizes that presidents would have to voluntarily agree to create such a commission. As he writes, "my hope is that once a courageous president creates the system, especially for high-profile Supreme Court nominations, political pressure will be great for others to follow the practice of merit selection."
I do think that the merit-selection process has worked well in some states, and it would be interesting to see something similar adopted at the federal level.
Saturday, August 14, 2021
Every few years, I ask my first-year writing students to analyze a problem on defaults, motions to cure, and the like. When I teach upper-division students, I always include some exercise on malpractice and default judgments. On August 9, the Fifth Circuit gave us a new spin on checking dockets and calendars, as well as our email spam folders, in Rollins v. Home Depot USA, Inc., __ F.4th __ , 2021 WL 3486465 (5th Cir. 2021). See also Debra Cassens Weiss, 5th Circuit warns of “cautionary tale for every attorney” as it refuses to revive lawsuit, ABA Journal (Aug. 11, 2021). The concise opinion also gives us a new example of the persuasion in writing straightforward facts, using clear topic sentences, and following fairly strict CRAC-style organization.
Judge James C. Ho started the opinion with a great “hook,” explaining: “This is a cautionary tale for every attorney who litigates in the era of e-filing." Judge Ho followed with a concise, easy-to-read fact summary, in just a few sentences:
Kevin Rollins brought suit against his employer for personal injury. The employer filed a motion for summary judgment on the eve of the parties’ agreed deadline for dispositive motions. But Rollins’s counsel never saw the electronic notification of that motion. That’s because, by all accounts, his computer’s email system placed that notification in a folder that he does not regularly monitor. Nor did he check the docket after the deadline for dispositive motions had elapsed.
As a result, Rollins did not file an opposition to the summary judgment motion. So the district court subsequently entered judgment against Rollins.
Rollins, __ F.4th at __, 2021 WL 3486465 at *1.
According to the opinion, Rollins was injured while moving a bathtub for his employer, Home Depot. Id. Rollins then sued Home Depot in state court. In one of the less-helpful parts of the opinion, the court uses passive voice—"The case was subsequently removed to federal court”—so we do not know which party asked for removal, but we can presume it was Home Depot.
In the federal district court, counsel for Rollins, Aaron Allison, agreed to receive filings “through the court’s electronic-filing system via the email address he provided, as attorneys typically do in federal courts across the country.” Id. The parties later agreed to a scheduling order requiring that all dispositive motions be filed by May 11, 2020 and providing a 14-day period for responses to any motions.
On May 7, Home Depot filed its motion for summary judgment. Allison explained the e-notification for the summary judgment motion filing “’was inadvertently filtered into a part of Rollins’ counsel’s firm email system listed as “other,” instead of the main email box where all prior filings in the case were received.’” Id. As a result, Allison did not see the electronic notification of Home Depot’s motion, and Home Depot did not mention the motion when Allison “contacted Home Depot’s counsel a few days later to discuss the possibility of a settlement.” Id.
Allison told the ABA Journal his firm had never had a problem with e-filing or with the email system. He noted “opposing counsel never separately notified Allison of the filing and continued settlement talks with the apparent knowledge that Allison wasn’t aware of the pending motion.” See Weiss, 5th Circuit warns of “cautionary tale for every attorney.” In fact, after Allison learned of the granted summary judgment motion, “his firm checked and scanned all emails and found the motion in an ‘obscure part’ of the email system.” Id. The firm tried to open the email, but it had been corrupted. Id.
Nonetheless, “without any response from Rollins, the district court reviewed the pleadings, granted Home Depot’s motion for summary judgment, and entered final judgment on May 27.” Rollins, __ F.4th at __, 2021 WL 3486465 at *1. On June 3, Allison again contacted Home Depot’s counsel to discuss settlement, but Home Depot’s counsel informed him the district court had already entered a final judgment. Id. Allison then filed a FRCP Rule 59(e) motion to alter or amend the court’s judgment against Rollins. The district court denied the motion, and Rollins appealed.
The Court of Appeals explained it would review “only” for an abuse of discretion, using one word to stress the deferential standard of review. Id. at *2. The court then set out the law in the nice, persuasive rule statements we all try to use, starting with phrases like, “But our court has explained” Rule 59(e) motions are for a “narrow purpose.” Judge Ho stated Rule 59(e) is “not for raising arguments” which “could, and should, have been made before the judgment issued” or where there is no intervening change of law. Id.
On the merits, the court began: “To be sure, we do not question the good faith of Rollins’s counsel. But it is not “manifest error to deny relief when failure to file was within [Rollins’s] counsel’s ‘reasonable control.’” Id. Although reasonable minds can disagree on the application of the rules here, the court then succinctly applied its stated rules to Rollins and found no abuse of discretion. The court reasoned “Rollins’s counsel was plainly in the best position to ensure that his own email was working properly—certainly more so than either the district court or Home Depot.” Interestingly, the court placed an affirmative burden of checking online dockets on counsel, even if counsel is not expecting any filings. According to the court, “Rollins’s counsel could have checked the docket after the agreed deadline for dispositive motions had already passed.” Id.
In his interview with the ABA Journal, Allison called the ruling a “‘lawyer beware’ decision.” He and his client are discussing a possible motion for reconsideration en banc, and if that is denied, a cert petition to the U.S. Supreme Court. See Weiss, 5th Circuit warns of “cautionary tale for every attorney.”
I plan to share this opinion with my students, not only for the substantive points on e-filings, but also for the opinion’s lessons in persuasion. And, we can all watch online dockets to see if Rollins decides to move forward.
Tuesday, June 22, 2021
When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves. But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia. Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling. Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.
The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.
Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.
Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.
No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.
 In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).
 593 U.S. __ (2021).
 494 U.S. 872 (1990).
 See Gentithes, supra note 1, at 341.
 See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).
Sunday, March 28, 2021
Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.
But social media and online blogging also have drawbacks.
For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.
Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.
Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory. This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.
By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.
Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.
The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.
After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:
Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.
Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts." For example:
[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.
Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable." Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.
For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.” The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.
In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.
 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
 Milkovich, 497 U.S. at 18 (internal citation omitted).
 Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).
 Id. at 575-576.
 Id. at 579.
 Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).
Saturday, March 13, 2021
As all appellate practitioners know, legal research takes a great deal of practice. Unfortunately, we never have quite enough time to assign extra research projects in law school, and all students can benefit from more research experience. Meanwhile, many practitioners would be much more willing to take on pro bono clients if the practitioners did not have to devote significant time to new research for pro bono matters. Illinois has a new program to connect law student researchers and pro bono attorneys.
The Public Interest Law Initiative in Illinois recently launched a program to allow upper division law students to provide research assistance to attorneys offering pro bono services. https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/. As PILI Executive Director Michael Bergmann explained, the Pro Bono Research Alliance works “in coordination with our law school partners to help further engage law students in providing pro bono services and to remove barriers for providing pro bono legal services to those in need.” Id. The Research Alliance provides wonderful support for attorneys who might have “hesitated in accepting a pro bono matter that . . . would require significant research” or involves an area of law outside the attorney’s regular area of practice. Id. The Research Alliance program “is totally free and is meant to be a useful resource to make pro bono work easier for attorneys, while simultaneously providing law students with valuable experience.” Id.
PILI’s program “matches student volunteers from Illinois’ law schools with attorneys from across the state.” https://pili.org/news/pili-launches-illinois-pro-bono-research-alliance/ Research assignments can range “from those taking only a few hours, to larger projects that may last the course of a semester,” and can help with “any non-fee generating civil legal matter where legal services are being provided on a pro bono basis as defined in Illinois Supreme Court Rule 756(f)(1).” Id. Accordingly, private pro bono attorneys, legal aid organizations, and nonprofits can use the research assistance.
Right now, the PILI program has slots for five students per law school (Illinois has nine law schools), but “[i]f the project garners enough interest, PILI will open the program to more law students at a later date.” Penelope Bremmer, PILI Launches Pro Bono Research Alliance for Law Students and Attorneys, https://www.2civility.org/pili-launches-pro-bono-research-alliance (Mar. 4, 2021).
Illinois modeled its Alliance on the similar University of Nebraska College of Law program. See https://law.unl.edu/ProBonoResearch/. Nebraska College of Law’s Pro Bono Research Fellows Program “is a free service for attorneys in need of research assistance on pro bono legal matters,” and “provides law students and attorneys with an opportunity to work together to provide legal assistance for someone in the community who cannot afford it. “ Id. Nebraska Research Fellows can also help with more than research in some circumstances, always with oversight from the College of Law. Id.
Both programs stress the goal of encouraging “more practicing attorneys to engage in pro bono work, while simultaneously providing students with valuable experience” and “an opportunity to build their professional network[s].” See id. Kudos to Illinois and Nebraska for helping more underserved clients access legal services, and for engaging law students in this valuable work.
Saturday, February 13, 2021
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- The Supreme Court let stand a Tenth Circuit order ruling that Alabama must allow an inmate’s request to have his pastor with him during his execution. The order denies without explanation the motion to vacate the injunction. Justice Kagan, joined by Justices Breyer, Sotomayor, and Barrett, concurred explaining that the “Religious Land Use and Institutionalized Persons Act (RLUIPA) provides ‘expansive protection’ for prisoners’ religious liberty” and that Alabama had not met ‘its burden of showing that the exclusion of all clergy members from the execution chamber is necessary to ensure prison security.” See the order and reports from The New York Times, The Hill, and the Associated Press.
- The Supreme Court granted in part a request to enjoin the California ban on indoor public gatherings as applied to religious services, allowing California churches to open despite the pandemic. The order allows the 25% capacity limitation and allows the ban on signing and chanting during services. Justice Kagan’s dissent argues not only that religious meetings were treated exactly like other similar meetings but also that the court is not equipped to step into the shoes of the scientists and legislators who are attempting to fight a deadly pandemic. See ruling and a few of the many reports from USA Today, CNN, The New York Times, and Politico.
- The Supreme Court granted the Biden Administration’s request to cancel two upcoming arguments in pending cases concerning the previous administration’s immigration policies. The Biden administration told the court that the polices were under review and asked the court to table argument for now. The two arguments concerned funding for the border wall and the “Remain in Mexico” policy. See reports in Reuters, The Hill, and Bloomberg News.
Federal Appellate Court Opinions and News
The Second Circuit upheld a new New York state ballot law that changes the definition of a qualified political party, making it more difficult to meet the test. The rules make access to the NY ballot more difficult by raising the number of required signatures to be a qualified political party from 50,000 to 130,000 (or at least 2% of the vote in presidential or gubernatorial elections). The ruling recognizes that the Constitution gives states broad authority over their own elections. See the order and reports from The Courthouse New Service, NBC New York, and The Associated Press.
The Seventh Circuit ruled that a nativity scene may be placed outside an Indiana public building because it has secular significance. The court overturned the lower court ruling and found that the scene complies with the Establishment Clause “because it fits within a long national tradition of using the nativity scene in broader holiday displays to celebrate the origins of Christmas—a public holiday.” See order and reports in The Indianapolis Star and The Courthouse News.
State Appellate Court Opinions and News
- The California Supreme Court allowed a high-ranking California judge to be removed from office for sexual misconduct. A disciplinary commission found the judge sexually harassed attorneys, staff, and court colleagues. The court, with no dissents, refused to review the commission’s decision to remove him from the Second District Court of Appeal in Los Angeles. The commission found that the justice’s “misconduct has severely tarnished the esteem of the judiciary in the eyes of the public” and that, “[g]iven his lack of candor during this proceeding, [the commission does] not have confidence that he has the fundamental qualities of honesty and integrity required of a judge.” See reports from The Los Angeles Times and The San Francisco Chronicle.
- Adam Steinman posts a summary of his article titled Rethinking Standards of Appellate Review, 96 Ind. L.J. 1 (2020). The summary explains that the article “digs into” the question “[f]or any given issue that a trial court might decide, should the appellate court review the lower court’s ruling de novo? Or should it review the ruling deferentially, say, for clear error or abuse of discretion?”
February 13, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)
Friday, December 18, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court refused to hear an Indiana appeal that sought to reverse the Seventh Circuit ruling that Indiana’s limitation on who can be listed as a parent on a birth certificate was unconstitutional. The Seventh Circuit found that Indiana discriminated against same-sex couples by presumptively listing the husband on the birth certificate of a heterosexual couple but refusing to list the spouse on the birth certificate for a same-sex couple. The Court’s refusal to hear the appeal leaves in place the Seventh Circuit opinion and means that, in Indiana, both spouses in a same-sex couple can be listed on the birth certificate. See reports from The Indianapolis Star, NBC News, and Slate.
The Supreme Court reversed a 2018 ruling from the Court of Appeals for the Armed Forces that applied a five-year statute of limitations to military rape prosecutions. The lower ruling resulted in the dismissal of rape convictions for three Air Force personnel. The Supreme Court reversed the ruling, upholding the three convictions. The Court found that the military code weighed “heavily in favor of the government’s interpretation” to prosecute rape claims going back to the 1980s. See the opinion and reports from The Hill and Military Times.
The Supreme Court dismissed the lawsuit challenging the attempt to exclude unauthorized immigrants from the census count, ruling that the challenge was premature. The majority ruled that the “case is riddled with contingencies and speculation that impede judicial review.” Justice Breyer’s dissent, joined by Justices Kagan and Sotomayor, points out that “[t]he plain meaning of the governing statutes, decades of historical practice[,] and uniform interpretations from all three branches of government demonstrate that aliens without lawful status cannot be excluded from the decennial census solely on account of that status. . . . I believe this court should say so.” Justice Breyer continues, “[w]here, as here, the government acknowledges it is working to achieve an allegedly illegal goal, this court should not decline to resolve the case simply because the government speculates that it might not fully succeed.” See the opinion and reports from NPR, The New York Times, CNN, and The Washington Post.
A tribute to Justice Ruth Bader Ginsberg was announced this week. Patterson Belknap introduced a podcast reviewing her legacy, called “Notorious: The Legal Legacy of Justice Ruth Bader Ginsburg.” See the news release here and the podcast here.
Federal Appellate Court Opinions and News
The First Circuit ruled that the Massachusetts wiretapping statute that prohibits secret recording does not apply to police officer, thus ruling that individuals may secretly record the police. See reports by NYU’s First Amendment Watch and CommonWealth.
The Tenth Circuit ruled memes were acceptable intrinsic evidence” of the defendant’s facilitation and solicitation of prostitution. The memes were various references to “pimps” and “pimp culture.” The court admitted the memes not as character evidence, which would be improper under the Federal Rules of Evidence, but as evidence intrinsic to the crime of prostitution because the memes declared the defendant to be in the business of trafficking prostitutes. The memes were determined to be readily viewable by others and to constitute the defendant’s social media brand. See the order and a blog post by the Evidence ProfBlogger and reports from Colorado Politics, Law360 (subscription required),
The Federalist Society hosted a virtual event called “Court-Packing, Term Limits, and More: the Debate over Reforming the Judiciary.” Find a video of the event here.
Sunday, November 15, 2020
Any ranking system contains elements of subjectivity and arbitrariness, and this is unquestionably true when attempting to rank the current justices on the United States Supreme Court. And it should go without saying that every justice on the Court is an incredibly accomplished and well-respected jurist, and among the brightest minds in the legal profession.
Notwithstanding, based on each justice’s jurisprudence, one can gain a general sense of their effectiveness, influence, and impact on the Court and the rule of law. The following rankings, which are admittedly subjective and unscientific, are predicated on the following factors: (1) the influence, if any, of ideology on a justice’s decision-making; (2) the quality of a justice’s written opinions and legal reasoning; (3) the extent to which a justice’s outcomes reflect a reasonable interpretation of a constitutional provision, statute, or regulation and thus preserve the rule of law; and (4) the degree to which a justice considers the pragmatic consequences of a decision, particularly as it affects the Court’s institutional legitimacy.
1. Elena Kagan
By all accounts, Justice Kagan is a brilliant legal mind. Justice Kagan possesses outstanding writing skills and the ability to communicate effectively and persuasively with lawyers and laypersons. Additionally, Justice Kagan’s decisions eschew ideology and reflect a balanced approach to constitutional and statutory interpretation, and fidelity to the rule of law.
One of Justice Kagan’s best opinions was a dissent in Rucho v. Common Cause, where Justice Kagan passionately and persuasively argued that partisan gerrymandering was anathema to the Constitution and democracy, and squarely within the Court’s adjudicatory powers. Regarding the partisan gerrymanders in Rucho, Justice Kagan emphasized that they “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
2. Neil Gorsuch
Justice Gorsuch has consistently demonstrated that he is a principled originalist. Originalism states that judges should interpret the Constitution’s text based on what the drafters of a particular provision understood those words to mean at the time such provision was ratified. In his opinions, Justice Gorsuch consistently places the rule of law above subjective values or personal policy predilections. Indeed, Justice Gorsuch’s opinions are very well-reasoned and grounded in a faithful interpretation of a constitutional or statutory text. Put simply, Justice Gorsuch is not guided by ideology and his jurisprudence reflects humility and respect for the democratic process.
3. John Roberts
Chief Justice John Roberts is among the most brilliant lawyers of his generation – and for good reason. Roberts’s intellect, advocacy skills, and writing ability are second to none. Additionally, Chief Justice Roberts is, by all accounts, a humble jurist who respects the rule of law, the separation of powers, federalism, and democratic choice. Furthermore, Chief Justice Roberts strives to achieve consensus among the justices (thus avoiding, to the extent possible, divisive 5-4 opinions) and is committed to preserving the Court’s institutional legitimacy.
Importantly, however, the desire to preserve the Court’s legitimacy and status as an apolitical branch has led, perhaps inadvertently, to decisions that invite precisely the criticisms Roberts seeks to avoid. For example, in National Federation of Independent Investors v. Sebelius, Roberts wrote for a 5-4 majority, in which the Court held that the Affordable Care Act’s individual mandate passed constitutional muster under the Taxing and Spending Clause, despite substantial evidence that the mandate was an unconstitutional penalty. Roberts’s decision, which surprised many legal scholars, was seen by some as an attempt to avoid the negative political consequences that a ruling invalidating the Affordable Care Act would engender. However, Roberts’s decisions in McCutcheon v. FEC, in which the Court invalidated a limit on contributions that an individual could make to a national party over a two-year period, and in Shelby County v. Holder, where the Court invalidated Sections 4(b) and 5 of the Civil Rights Act (despite a Senate vote of 98-0 to reauthorize these sections) engendered significant criticism and the very charges of illegitimacy that Roberts ostensibly seeks to avoid.
Put simply, an overarching focus on preserving the Court’s institutional legitimacy invariably involves precisely the element of subjectivity (and, to an extent, arbitrariness), that is anathema to legitimacy itself.
4. Stephen Breyer
Justice Breyer is a thoughtful and very intelligent jurist who balances fidelity to the rule of law with a consideration of the pragmatic consequences of decisions. And Breyer’s jurisprudence does not suggest that he is guided by subjective values or ideological considerations. Instead, Justice Breyer's decisions are almost always well-reasoned and balanced, regardless of whether one agrees with the outcome of such decisions. For example, in Whole Women’s Health v. Hellerstadt, Breyer wrote for a 5-3 majority that invalidated a requirement in Texas that abortion providers obtain hospital admitting privileges.[4}
The decision in Whole Women's Health was based on a reasonable review of the record and of precedent regarding abortion rights.
One criticism of Justice Breyer, however, is that he subscribes to a method of constitutional interpretation known as “living constitutionalism,” which states that the Constitution’s meaning evolves over time and that the meaning of a particular constitutional provision should reflect contemporary societal values. The problem with this approach is that it vests nine unelected and life-tenured judges with the ability to identify – for the entire nation – prevailing societal values and to impose those values through decisions that often disregard or manipulate the Constitution’s text.
5. Clarence Thomas
Justice Thomas is a faithful adherent to originalism. The principle undergirding originalism is that judges do not have the right to unilaterally disregard, manipulate, or change the Constitution’s meaning based on their subjective values or policy predilections. Doing so would be fundamentally anti-democratic and give judges the unfettered right to undermine the democratic process and identify unenumerated rights based on nothing more than their personal values. Justice Thomas consistently adheres to this philosophy.
However, Justice Thomas can sometimes be far too formalistic and eschew any consideration whatsoever of the pragmatic consequences of his decisions. This is not necessarily a criticism, although originalism does not – and should not – prohibit judges from basing decisions on pragmatic considerations where such decisions would be consistent with a reasonable interpretation of the Constitution’s text. For example, Justice Thomas has repeatedly advocated for reversing Roe v. Wade, where the Court held that the right to privacy under the Fourteenth Amendment protects a woman’s right to terminate a pregnancy under certain circumstances. Although the decision in Roe, particularly the reasoning, was arguably one of the worst in the last fifty years, the reliance that women have placed on Roe during this time, and the political and social divisiveness that would accompany overturning Roe, counsel in favor of adhering to Roe’s central holding. Thus, Thomas’s rather rigid position on Roe, and his overly formalistic legal analysis in other cases, leaves far too little room for pragmatic considerations.
6. Sonia Sotomayor
Justice Sotomayor is an incredibly accomplished jurist who has authored several passionate and well-reasoned dissents, particularly in the areas of abortion and affirmative action. And Justice Sotomayor’s personal story, in which her intellect and work ethic propelled her to Princeton University and Yale Law School, is truly inspiring.
However, in a number of decisions, Justice Sotomayor, whose jurisprudence reflects living constitutionalism, appears to be motivated more by ideology or policy preferences than a commitment to the rule of law. This is arguably evident in the Court’s affirmative action jurisprudence, such as in Schuette v. Coalition to Defend Affirmative Action, where Justice Sotomayor’s reasoning read more like a policy prescription than a legal opinion, and where Sotomayor ostensibly eschewed any workable legal standards for assessing the constitutionality of affirmative action policies. Regardless of one’s views on affirmative action, one gets the sense that Justice Sotomayor will, without exception, uphold any affirmative action policy irrespective of the merits of that policy. That approach is antithetical to the role of and limits on judicial decision-making.
7. Brett Kavanaugh
Justice Kavanaugh, a graduate of Yale Law School, had an extraordinarily impressive record as an attorney and a judge on the United States Court of Appeals for the District of Columbia Circuit where, by all accounts, Kavanaugh was a fair and principled judge.
Justice Kavanaugh’s ranking is not a reflection of his jurisprudence. Rather, he has not been on the Court for a sufficient time to adequately assess his jurisprudence, judicial philosophy, and impact on the Court and the law.
8. Samuel Alito
Justice Alito is extremely intelligent, and a well-respected and accomplished jurist.
However, one gets the sense from both oral arguments and Justice Alito’s written opinions that his decisions are motivated in substantial part by ideological considerations and policy preferences. Indeed, on November 12, 2020, Justice Alito delivered a speech to the Federalist Society in which he criticized the Court’s free exercise jurisprudence, its decision in Obergefell v. Hodges (invalidating same-sex marriage bans), and the protections afforded to free speech.
Note: Amy Coney Barrett: Having been confirmed only a few weeks ago, Justice Barrett has not been on the Court for a sufficient time to justify including her in the ranking.
 139 S. Ct. 2484 (2019) (Kagan, J., dissenting).
 567 U.S. 519 (2012).
 572 U.S. 185; 570 U.S. 529 (2013).
 136 S. Ct. 2292 (2016).
 Of course, originalism, like living constitutionalism, can also be used as a tool to impose a judge’s subjective values and policy preferences. However, principled originalists eschew such an approach and predicate their decisions on ascribing the meaning that the drafters intended at the time a provision was ratified.
 410 U.S. 133 (1973).
 572 U.S. 291 (2012).
 Sydney Bauer, Justice Alito Takes Aim at Gay Marriage in ‘Politically Charged Speech,’ (Nov. 13, 2020), available at: https://www.nbcnews.com/feature/nbc-out/justice-alito-takes-aim-gay-marriage-politically-charged-speech-n1247772
November 15, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, November 1, 2020
In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance. These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.
In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:
If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.
But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.
1. Require a 6-3 supermajority to affirm or reverse lower court decisions
Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.
Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.
2. Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.
In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause. Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto. Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?
Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut). Instead, it should defer to the coordinate branches – and to democratic choice.
3. Allow the Supreme Court to issue advisory opinions
The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.
Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights. And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.
Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.
 Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at: https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.
 567 U.S. 519 (2012).
 524 U.S. 417 (1998).
 381 U.S. 479 (1965).
November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Sunday, October 11, 2020
On the eve of Amy Coney Barrett’s confirmation hearings, members of the Republican and Democratic parties are preparing for what will likely be a difficult and highly partisan hearing. Republicans on the judiciary committee will likely contend that Judge Barrett’s qualifications, reputation, and character overwhelmingly support her confirmation. Democrats will likely contend that confirming Judge Barrett less than a month before the Presidential election is inappropriate, particularly given the Republicans’ refusal to hold hearings for Merrick Garland in the months preceding the 2016 election. Regardless of whether Judge Barrett is confirmed (the odds are solidly in her favor), few can doubt that the hearings will be contentious and reflect the partisanship and divisiveness that currently pervades the political arena. The consequences will not be insubstantial; rather, Judge Barrett’s hearing, like the hearing of then-Judge Brett Kavanaugh, will underscore how political the confirmation process – and arguably the Court itself – has become. And it will potentially undermine the public’s confidence in the Court and the rule of law.
To make matters worse, some members of the Democratic party have threatened to “pack the court” with additional (and arguably liberal) justices to counter the solidly conservative majority that Judge Barrett’s confirmation would likely create. But packing the Court will make the problem worse, not better. It would be predicated on the assumption that a President’s – and a justice’s – perceived ideology and policy predilections will lead to outcomes that one party deems politically desirable. And if the public perceived as such, the Court would become more politicized, the rule of law more trivialized, and the legitimacy of the Court’s decisions minimized.
So how can we preserve the rule of law, maintain the Court’s independence, and ensure confidence in the Court’s decision-making process? Not through a contentious and partisan confirmation hearing. Not by packing the Court.
Instead, require a supermajority. Specifically, require that to reverse or affirm a lower court decision (and, of course, change the law), six, not five votes, are required.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. First, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues controversial decisions.
Second, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would be minimized.
Third, a six-vote majority requirement would likely affect the process by which the Court grants certiorari. The Court would be less likely to accept cases -- particularly those involving divisive social and political issues -- if the justices knew that there was little, if any, likelihood of obtaining a six-vote majority. The effect would be that many decisions concerning divisive policy issues would be resolved through the democratic process, not by nine unelected judges with life tenure.
Fourth, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. This is a good thing; after all, the Court’s decision in Roe. v. Wade, which was indefensible as a matter of constitutional law, has engendered so much backlash that the right to abortion will continue to be litigated for the foreseeable future.
Fifth, a six-member majority requirement would de-politicize the Court and the process by which justices are confirmed, preserve the Court’s independence, and protect the Court’s legitimacy. Simply put, packing the Court isn’t the answer. Requirement a six-vote majority is – and should be considered seriously.
Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.
Monday, June 8, 2020
Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian. Today I am sharing an interview that I did recently with David Lat. David is the founding editor of the popular blog Above the Law. He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19. He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background. Thanks David for joining me for the interview!
Edited: Sorry about the video issues, I think that it is fixed.
June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Monday, May 25, 2020
My colleague, Prof. Susie Salmon, recently started a podcast called Practice in Place: Law and Justice Go Viral. You can find the first episode here. The premise of the podcast is as follows:
[H]ow does a profession governed by precedent respond to the unprecedented? Practice in Place investigates how the practice of law and the administration of justice have adapted under the abrupt constraints of the COVID-19 era, how that has affected how and whether we achieve justice, and how those changes and that experience might or should change the practice, the profession, and its procedures forever. Produced by University of Arizona, James E. Rogers College of Law and hosted by Professor Susie Salmon and the Legal Writing Program.
I am pretty excited about the project. For a forthcoming episode, I interviewed Sean Marotta, a partner at Hogan Lovells, and Raffi Melkonian, a partner at Wright Close & Barger, for their thoughts on the pandemic and the future of appellate practice. For those who would like to hear our full discussion, I have posted the video below. Sean and Raffi had insightful tips on surviving the pandemic, keeping your kids occupied, what they saw legal practice looking like in the next few months, and keeping sane. I also provide my insights on the going rate for finding typos in briefs. Enjoy!
Wednesday, May 13, 2020
This blog post might provide you with information you already know. The information is new to me, which made me think sharing it might assist others as well. As I was looking at the Louisiana Supreme Court’s website recently, a reference caught my eye. That reference was to the publication, “Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators.” The publication can be downloaded here: https://ncsc.contentdm.oclc.org/digital/collection/facilities/id/194.
A team from the Conference of Chief Justices and the Conference of State Court Administrators worked on a Pandemic and Emergency Response Task Force to create this document, which was published by the National Center for State Courts in 2016! That date caught my eye because, like so many of you, I have been stunned over the past few months (yes, months that sometimes feel like years) by what has been going on in the world: stunned by the magnitude of this pandemic. And now, I am stunned by the fact that this group created this resource four years ago that is so relevant to what the world is experiencing in 2020.
The benchbook/guidebook urges state courts to create their own books tailored to their states in which they include both federal and state laws that will be relevant should a pandemic occur. It raises issues to be considered in a pandemic, such as maintaining constitutional protections during a pandemic; operating courts during a pandemic; searches, seizures, and other government actions to maintain public health; and jurisdiction of public health issues. It suggests that courts create certain model orders and court rules to use in the event of a pandemic. It also provides a resources list that includes citations to state courts that already had such plans back then. From back in 2016, it discusses and suggests many of the things that we are now discussing and suggesting.
I highly recommend you review this document, if you have not already seen it. Perhaps it will be helpful to you in your law practice, in your law school, in your court, and even in your personal life as you grapple with and consider issues that do not often present themselves. Thank you to the National Center for State Courts https://www.ncsc.org/, the Conference of Chief Justices https://ccj.ncsc.org/, and the Conference of State Court Administrators https://cosca.ncsc.org/ for thinking ahead. I only wish we did not need your good book.
May 13, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Oral Argument, State Appeals Courts | Permalink | Comments (2)