Appellate Advocacy Blog

More than "Frenemies."

I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”

I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.

Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.

The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”

I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.

How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.

So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.

That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.

(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).

 

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

The 2023 Justice Donald L. Corbin Appellate Symposium

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

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

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

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

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

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

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

Concrete Economics on the Supreme Court

The Supreme Court has recently offered strikingly similar answers to two seemingly disparate questions. The first concerns Article III standing to bring a case in federal court: What does it mean to show a “concrete and particularized injury in fact” that would, in part, support standing? The second concerns precedent: What does it mean for citizens to “rely” on precedents so that those prior decisions deserve stare decisis protection? The Court’s answers to each of these questions uses similar reasoning to amplify economic interests that are easy to identify and measure. Taken together, these seemingly unrelated jurisprudential developments also have an important real-world effect: they help ensure that our legal system provides the greatest level of protection possible for clear, monetary concerns, relegating more intangible individual rights to a second-class status.

Start with the Courts recent jurisprudence on Article III standing, which includes, as one of its elements, a requirement that plaintiff’s suffer a concrete and particularized injury in fact.[1] Recent Supreme Court analyses have heightened this concreteness hurdle to enter federal courts. In Spokeo v. Robins, the Court suggested that Congress cannot create concrete injuries by fiat simply by including a statutory damages remedy in legislation.[2] Five years later in Transunion LLC v. Ramirez, the Court again noted that an injury does not become concrete simply because Congress creates a statutory cause of action to redress it—although such Congressional action might be instructive.[3] The Court emphasized that it would only resolve “‘a real controversy with real impact on real persons.’”[4] In effect, these decisions emphasize the need for plaintiffs to come to the courthouse with an injury that can easily be measured, typically in real dollars and cents, before filing suit.

Meanwhile, as I have argued, the Court’s treatment of stare decisis in the landmark abortion rights case Dobbs v. Jackson Women’s Health Organization used similar language to signal the Justice’s willingness to overturn a broader swath of the Court’s prior decisions. According to Justice Alito’s majority opinion in Dobbs,  stare decisis only protects reliance interests that arise “where advance planning of great precision is most obviously a necessity”—not reliance interests that come from the kind of “unplanned activity” that may lead to an abortion.[5] Alito also claimed that stare decisis protects only “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[6] Courts simply cannot measure, and thus cannot protect, more intangible forms of reliance that involve the organization of intimate relationships and decisions about a woman’s position in her family and community.[7] Though this language appears content-neutral, Alito's approach to stare decisis significantly weakens precedents that protect intangible individual rights. Few citizens make contractual arrangements or economic plans based upon such precedents, and thus those precedents seems less viable in the long term.

Taken together, these trends prioritize economic interests over a number of other important interests that the legal system previously seemed to protect. Many social interests or individual rights are not the subject of economic agreements. And under the Court’s approach to both standing and stare decisis, those rights are less worthy of legal protection, on that basis alone. Put another way, if a legal interest is difficult to quantify economically, it is hardly a legal interest at all.

Without garnering much public notice, these joint emphases on concreteness create new barriers for the protection of individual rights in federal courts. They are perhaps an even greater threat to individual rights than a decision that forthrightly admits it is designed to curb those rights.

 

[1] See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 461, 472 (1982); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[2] 578 U.S. 330, 339-40 (2016); Richard L. Heppner Jr., Statutory Damages and Standing After Spokeo v. Robins, 9 ConLawNOW 125, 125 (2018).

[3] 141 S. Ct. 2190, 2204-05 (2021).

[4] Id. at 2203 (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring)).

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

Who Serves on the Bench Matters

As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will  be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.

We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.

Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration.[1] He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”[2]

That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.

Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.

The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.

 

[1] Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).

[2] Id.

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

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

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

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

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

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

Happy Thanksgiving!

Why Judicial Deference Matters Now More Than Ever

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

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

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

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

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

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

Thankfully, Professor David Bernstein has called out this nonsense:

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

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

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

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

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

1.    National Federation of Independent Investors v. Sebelius

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

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

2.    Kennedy v. Louisiana

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

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

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

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

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

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

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

4.    Roe v. Wade

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

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

5.    Clinton v. New York

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

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

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

6.    Shelby County v. Holder

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

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

***

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

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

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

 

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

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

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

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

[5] Id.

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

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

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

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

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

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

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

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

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

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”

The Hallmarks of a Great Appellate Brief

Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.

1.    Start strong and get to the point quickly.

Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:

• Tells the court in one sentence why you should win.
• States clearly what remedy you are seeking.
• Explains why the court should rule in your favor.
• Presents the strongest facts and legal authority that support your argument.

Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor. 

2.    Focus on the facts.

In most instances, the facts – not the law -- win cases.

An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.

To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.

As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.

3.    Adopt a more objective tone.

Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:

• Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
• Explains how a ruling in your favor will affect future cases and litigants.
• Considers the policy implications of a ruling in your favor.
• Addresses institutional considerations, such as how the public might react to a ruling in your favor.
• Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.

Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.

4.    Break the rules – sometimes.

When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.

Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:

• Captures the reader’s attention from the beginning.
• Emphasizes the most favorable facts and law immediately and throughout the brief.
• Appeals to emotion where appropriate.
• Exposes the logical flaws in your adversary’s argument.
• Uses metaphors or other literary devices to enhance persuasion.
• Ends powerfully.

Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:

During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.”  Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.

This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.

5.    Perception is reality – do not make mistakes that undermine your credibility.

Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:

• Spelling errors
• Long sentences (i.e., over twenty-five words)
• Excessively long paragraphs (e.g., one paragraph occupying an entire page)
• Failure to comply with the local court rules
• Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
• Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
• Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
• Avoiding unfavorable facts or law
• Requesting relief that the court is not empowered to grant
• Including irrelevant facts or law in your brief (and including unnecessary string cites)

Avoid making these and other mistakes at all costs.

6.    The law will only get you so far; convince the court that it is doing the right thing by ruling for you.

Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.

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

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

Below are a few thoughts on the decision.

1.    The majority was correct.

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

But the truth is the truth.

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

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

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

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

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

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

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

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

3.    Justice Kavanaugh’s concurrence was surprisingly misguided.

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

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

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

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

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

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

4.    Justice Thomas went too far.

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

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

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

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

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

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

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

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

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

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

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

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

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

7.    Stop criticizing the Court

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

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

 

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

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

[3] Id.

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

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

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

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

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

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

Miranda Warnings Are A Right Without A Remedy

Last week’s decision in Vega v. Tekoh did not, on its own, monumentally change the Miranda warnings made famous in pop culture for half a century. Government investigators should still provide the same basic recitation of rights to a suspect in custody before conducting any interrogation, just as they have in the past. But Vega continued a pattern of Supreme Court decisions that have slowly undermined the value of those warnings, largely by declining to provide any meaningful remedy when investigators fail to provide them.

In 2010, Barry Friedman argued that the Supreme Court was engaged in the “stealth overruling” of precedent, with Miranda v. Arizona at the forefront of the trend. He claimed that the Court had slowly chipped away at Miranda’s doctrinal core until almost nothing remained, leaving it so weak that it could even be formally overruled under stare decisis factors that examine the workability of a decision and its alignment with subsequent legal developments. That has largely been achieved by permitting more and more statements taken after a violation of Miranda to be introduced at trial. As Vega noted, the Court has already permitted the introduction of non-Mirandized statements to impeach a witness’s testimony, if the statements are merely the “fruits” of the improper statement, or if officers conducted un-Mirandized questioning to respond to ongoing public safety concerns.

Vega appeared different from those decisions, because on its surface it did not directly implicate the constitutionality of the Miranda warnings or the use of un-Mirandized statements in criminal courts. The case concerned a criminal defendant who was later acquitted, then filed a civil suit against an officer who failed to provide the Miranda warnings. The civil suit sought monetary damages under 41 U.S.C §1983, which allows a citizen to sure for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus, the case concerned whether a violation of Miranda’s rules was a sufficient deprivation of rights to give rise to a section 1983 suit.

Justice Alito’s majority opinion held that it did not. Alito noted that Miranda is only a prophylactic rule to protect Fifth Amendment rights, even if the Supreme Court has subsequently confirmed Miranda as “constitutionally based” and a “constitutional rule” in Dickerson v. United States, 530 U.S. 428, 440, 444 (2000). Although the Miranda rule is of constitutional nature and could not be altered by ordinary legislation, not all Miranda violations also violate the Fifth Amendment—such as when a technical Miranda violation does not result in a compelled statement. Alito also highlighted the myriad ways in which Miranda has been weakened over time—or, as Friedman would argue, has been stealthily overruled. Given Miranda’s weak pedigree, Alito claimed that section 1983 suits based upon Miranda should only be permitted if their value outweighed their costs. He then discounted any value to such suits at all, claiming that they would have little deterrent effect upon officers that might otherwise violate Fifth Amendment rights. The decision thus rejected section 1983 suites based upon Miranda violations.

Alito’s claim that civil liability for Miranda violations would do little to deter officers only makes sense if Miranda is a robust constitutional protection for Fifth Amendment rights. But the Court has already weakened the value of Miranda by limiting its application in the criminal context. As Alito admitted, prosecutors can readily introduce un-Mirandized statements during a criminal trial for a myriad of reasons related to public safety or the limited constitutional nature of Miranda itself. The modern Miranda rule thus provides little deterrent against Fifth Amendment violations. In that context, a civil remedy that likely would add some deterrence while providing a real remedy for those subject to Miranda violations. Allowing section 1983 suits based on Miranda violations would meaningfully change that status quo, despite Alito’s claim that those suits lack any real deterrent value.

What Vega demonstrates is not that Miranda rights have disappeared from the criminal justice landscape, but instead that they have become rights without any practical remedy. Statements obtained in violation of Miranda are routinely introduced in criminal court without any sanction against the violators, and now Vega signals that violators are not likely to face civil penalties either. In light of Miranda’s lack of remedies, it may even be good police practice to avoid Mirandizing suspects in the name of ensuring that incriminating statements emerge. Evidentiary consequences can seemingly always be worked around, and civil penalties are no real threat.

Vega is another step in the same course the Court has been taking for decades. It limits the remedies for a Miranda violation even further—this time in the civil context—ensuring that officers will face few consequences for those violations. Miranda’s place as a “constitutional rule” may not be under threat from Vega, but that is little salve. “Constitutional rule” status seems to afford no real remedies for those who suffer a violation.

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id. 

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.

Appellate Advocacy Blog Weekly Roundup Friday, June 3

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.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

• • More from Bloomberg

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

• • More from SCOTUSblog

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

• • More from SCOTUSblog

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

• • More from the Sacramento Bee

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

• • Details HERE

Whither (wither?) Strict Scrutiny?

Professor Gerald Gunther once memorably described strict scrutiny as “‘strict’ in theory and fatal in fact.”[1] And, courts have employed that strict scrutiny to content-based restrictions on free speech,[2] as well as burdens on fundamental rights under both due process[3] and equal protection.[4] It is easy to suppose, even if wrong, that strict scrutiny applies to all fundamental rights.

However, the Supreme Court has adopted different standards for different constitutional rights that make such a knee-jerk response to the presence of a fundamental right the wrong move. For example, the free-exercise clause in a much-criticized decision written by Justice Scalia limited the scope of this protection by requiring the state action to target religion or a religion for different treatment, as opposed to being a valid, neutral law of general applicability.[5] The Seventh Amendment’s jury-trial right also eschews strict scrutiny in favor of a historical test.[6]

Recently, a concurring opinion (to his own majority opinion) by Eleventh Circuit Judge Kevin Newsom speculated on the proper test for the Second Amendment.[7] He rejected one based on levels of scrutiny because the majority in District of Columbia v. Heller[8] expressly shunned any type of “judge-empowering ‘interest-balancing inquiry.’”[9] 554 U.S. at 634.

Newsom instead endorsed a view he credits to a Justice Kavanaugh dissent written when Kavanaugh sat on the D.C. Circuit. That opinion stated that “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”[10] Newsom, though, is not entirely happy with that formulation. He questions its inclusion of “tradition” as a metric.[11] As he explains, if tradition represents the original public meaning, it duplicates what history provides.[12] If it “expand[s] the inquiry beyond the original public meaning—say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.”[13]

Newsom adds a “bookmark for future reflection and inquiry than anything else” to his opinion.[14] He states that it is problematic to reject balancing tests in the context of the Second Amendment, yet still apply it to other fundamental rights. Using the First Amendment as an example, he criticizes the balancing tests adopted there as “so choked with different variations of means-ends tests that one sometimes forgets what the constitutional text even says.”[15] He says that the “doctrine is judge-empowering and, I fear, freedom-diluting.”[16] He suggests that “bigger questions” need to be raised to decide whether applying scrutiny at any level should continue.

The concurrence is provocative and suggests that the roiling of doctrine in other areas of law may extend to how courts should view fundamental rights. However, there is no holy grail that reduces judicial discretion in favor of assuring liberty. Construing constitutional rights is no less subject to manipulation based on a judge’s views if the judge subscribes to the original public meaning school of interpretation, rather than balancing tests. Newsom appears to agree that Heller “was perhaps ‘the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.’”[17] Yet, Heller adopted a historical analysis others have criticized as skewed to obtain a result.[18] Those who expect the pending SCOTUS decision in N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen[19] before the Supreme Court to invalidate New York’s century-old restrictive gun law recognize that history supporting the type of government authority the statute represents is likely to make little difference to the majority. And, original public meaning cannot reflect our rejection of ideas about race and gender from the founding period.

So, what should we make of Newsom’s concurrence? The opinion seems further evidence that nothing about our approach to constitutional law is settled – and the questioning of strict scrutiny as an interpretative tool is only beginning.

 

[1] Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

[2] See City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

[3] Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

[4] See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).

[5] Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).

[6] Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).

[7] United States v. Jimenez-Shilon, No. 20-13139, 2022 WL 1613203, at *7 (11th Cir. May 23, 2022) (Newsom, J., concurring).

[8]  554 U.S. 570 (2008).

[9] Jimenez-Shilon, 2022 WL 1613203, at *8 (Newsom, J., concurring).

[10] Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

[11] Jimenez-Shilon, 2022 WL 1613203, at *8 n.2 (Newsom, J., concurring).

[12] Id. (Newsom, J., concurring).

[13] Id. (Newsom, J., concurring).

[14] Id. at *9 (Newsom, J., concurring).

[15] Id. at *10(Newsom, J., concurring).

[16] Id. at *11 (Newsom, J., concurring).

[17] Id. at *8 (Newsom, J., concurring) (quoting United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)).

[18] See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Mark Anthony Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts. J. 413 (2020).

[19] No. 20-843.

Camille Vasquez Is a Rockstar

Actor Johnny Depp is currently suing his ex-wife, actress Amber Heard, for defamation, and the trial is both entertaining and educational – particularly for law students and lawyers. The reason for that is Camille Vasquez, who graduated from the University of Southern California and Southwestern Law School, and whose performance at the trial is equivalent to a master class in persuasive advocacy.

Put simply, Camille Vasquez is a rockstar.

Law students (and lawyers) should watch Camille because they will learn more from her in a few hours than they will likely learn in three years of law school. Below are a few reasons why Camille Vasquez is an outstanding attorney, and why she represents the best of the legal profession.

1.    She is confident and owns the courtroom.

Whether it is conducting the cross-examination of Amber Heard or objecting to the adversary’s questions on direct examination, Camille Vasquez is incredibly confident and self-assured. Quite frankly, Vasquez has swagger. She knows she is among the best. She owns the courtroom. And if you try to bullshit her, it won’t end well for you.

Such confidence, which Vasquez has exuded in all aspects of the trial, is critical to creating the perception with the court and jury that you know what you’re doing, and that you are a credible advocate. When you create that impression, the judge and jury are more likely to view you and your client more favorably – and rule in your favor.

2.    She uses non-verbal techniques effectively.

When arguing before a judge or jury, your non-verbal techniques are equally, if not more, important, than what you say. Non-verbal techniques, such as posture, facial expressions, eye contact, and variance in tone, attitude, and emphasis, convey to the jury, among other things, your confidence, knowledge of the record, and belief in your position.

Camille Vasquez uses non-verbal techniques extremely effectively. When Vasquez was cross-examining Amber Heard, for example, she stood upright, at times leaning into the podium to emphasize a critical point. She varied her facial expressions to convey skepticism, if not disbelief, of some of Heard’s responses. She remained focused and confident at all times. She never laughed or displayed inappropriate emotional responses. She never fidgeted, folded her arms, or paced about the courtroom. She listened to Heard’s responses and retained eye contact. In short, her non-verbal communications showed that she had perfect knowledge of the record and that she was owning the witness and the courtroom.

3.    She knows how to adjust and follow up during cross-examination.

During cross-examination, Camille Vasquez adjusted effectively to Amber Heard’s sometimes-evasive responses with follow-up questions that forced Heard to concede unfavorable facts. In so doing, Vasquez didn’t simply recite a list of questions and hope that she would receive a favorable answer. Instead, she knew Heard was going to be evasive at times, and she adjusted in the moment, asking follow-up questions that would not allow Heard to avoid conceding unfavorable facts. For example, during cross-examination, Heard testified that she had pledged/donated seven million dollars to a particular charity. Vasquez refused to allow Heard to conflate the distinction between pledging and donating money, forcing Heard to admit that, although she had pledged seven million dollars to a charity, she never actually donated any money to that charity.

4.    She knows how to strategically include comments that undercut a witness’s credibility.

Effective advocacy includes strategically commenting on a witness’s testimony during cross-examination to express skepticism about a witness’s truthfulness or highlight a witness’s non-responsiveness. Simply put, cross-examination is not merely about asking questions. It’s about having a conversation with the witness and, through excellent questions, non-verbal communication, and strategic commentary on the witness’s responses, owning that conversation and eliciting facts that damage the adversary’s credibility. For example, during the cross-examination, Vasquez made comments such as:

“That wasn’t my question, Ms. Heard.” (conveying to the jury that Heard was being evasive)

“You know what a deposition is, right Ms. Heard?” (implying that Heard is ignorant and trying to hide unfavorable facts)

“You understand the difference between pledging money and donating money, right?” (this may not be the exact quote, but it’s similar and conveys that Ms. Heard’s attempt to say that pledging and donating money are synonymous makes no sense)

The inclusion of such comments enables a lawyer to communicate subtly to the jury that the witness’s testimony is not credible. Put another way, when cross-examining a witness, you can still “testify” if you do so strategically and subtly. Camille Vasquez did that very effectively.

5.    She is prepared and has outworked Amber Heard’s attorneys.

This point doesn’t need much explanation, except to say that many people have no idea what it means to be truly prepared for a trial (or a midterm or final examination, for that matter). Preparation means, among other things, knowing every inch of the record. It means being able to recite the page and line number of a deposition when conducting a direct or cross-examination. It means knowing the rules of evidence and practicing objections thousands of times, and being able to anticipate responses to those objections. It means knowing the relevant case law so well that you never need notes.

Camille Vasquez was incredibly prepared for this trial and almost certainly as prepared as any human being can be for a trial. She knew the rules of evidence so well that every objectionable question from Heard’s attorney was met with an objection by Vasquez – and sustained nearly every time. The link below shows the preparation – and sheer talent – that Vasquez has displayed during the trial.

Amber Heard's Lawyer SHUT DOWN! 40+ OBJECTIONS Within 19 MINUTES (Camille Vasquez) - YouTube

6.    She’s very smart.

Intelligence matters, and great lawyers are highly intelligent. Camille Vasquez is no exception – her analytical abilities, quick thinking, and ability to articulate complex points in a clear and relatable manner, reflect her impressive intellect.

7.    She cares for and is a passionate advocate for her client.

This trial has shown that Camille Vasquez is a kind and passionate person who cares deeply for her clients and for the causes that she is advocating. She represents Johnny Depp with compassion and empathy, and through her interactions with Depp, you can obviously see that she cares about him and is doing everything possible to achieve a favorable result.

In short, she is a good person – and good people make the best attorneys.

A Plea for Pro Bono Service

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

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

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

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

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

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

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

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

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

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

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

I.    The Reality of Abortion Jurisprudence

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

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

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

    And the Court in Roe likely knew that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II.    Overturning Roe will not endanger other constitutional rights.

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

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

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

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

    To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Petitioners the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights, however, ill-founded, can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2022 than there were in 1973 or 1992. That is the point – and the problem – with overturning Roe and Casey now. In short, yes, Roe and Casey were terrible decisions, but at this juncture, overruling them is almost certain to cause more harm than good, particularly to the Court’s legitimacy and to women. On the merits, however, the downfall of Roe and Casey is understandable as a matter of constitutional law.

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

 

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

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

[3] Id.

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

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

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

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

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

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

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

Appealing TROs: Some “Practical” Advice

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

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

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

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

The Logic of a Courtroom, the Skewing Influence of Politics

As appellate advocates, we honor the rule of law because it depends on logic and reason. When we muster enough support in our favor, we expect a good result, even if we are sometimes disappointed in that expectation.

The rule of law also means that, regardless of an opponent’s money, clout, and influence, a level playing field exists so that the strength of one's arguments made should prevail. At least, that is the theory. And, in most instances, the theory holds, evidenced by the frequency of 9-0 decisions in the Supreme Court, despite vastly different judicial philosophies and ideological divisions among the justices.

Part of the reason the theory holds is that judges are supposed to park their politics at the courthouse door and not inside the courtroom. In one famous example of doing so, Salmon Chase was President Abraham Lincoln’s treasury secretary and had been a driving force behind the Legal Tender Act, which allowed paper money to replace silver or gold as currency and finance the Civil War. When an opening for chief justice came up, one reason Lincoln tapped Chase (besides eliminating a potential presidential rival) was an assumption that he would “sustain what has been done in regard to emancipation and the legal tenders.” It turned out to be a miscalculation. Chase led a slim majority in declaring the act unconstitutional. Some have explained the turnaround as Chase doing his best to serve his client as treasury secretary to draft a valid act and later deciding that his best was still not good enough.

We enjoy stories about judges putting the rule of law above politics, but we also live in an era where the lines between law and politics seem to be dissolving. The line was never as bold and clear as our learning and imagination suggested. Yet, today, the marriage of politics and law appears more evident, particularly in the appellate courts.   

It does not just come with threats of impeachment by disappointed legislators who resent a court’s decision striking down their handiwork.[1] It also comes from the interjection of social and political debates in opinions unrelated to those debates, as well as the politicization of judicial philosophies. Many senators who have announced that they plan to vote in opposition to Supreme Court nominee Ketanji Brown Jackson have explained their rationale for doing so because she would not commit to originalism. Although she testified that she uses originalism, that was not enough. Still, few of those senators who have insisted on an unalloyed commitment to originalism could explain how it works as an interpretive tool behind a simplistic but uninforming definition. They probably hold the false belief that originalism always leads to a single result.

One of the most outspoken originalists on the Court was Justice Antonin Scalia, who liked to describe himself as a “fainthearted originalist.” He held no brief where originalism would lead to an absurd result. He also fashioned his originalism, at times, to fit his preexisting views as in D.C. v. Heller.[2] The fractured version of history he recited to support his conclusion was assailed by two conservative jurists for its selective use of history.[3] Other times his use of the tool led him to a conclusion that the Senate’s originalism fans would probably oppose, such as in the Flag-Burning Cases,[4] where he voted to grant First Amendment protection to that act of protest.

Originalism is no panacea against imbuing interpretation with personal predilections, but advocates must be prepared to provide the necessary fodder for those who follow that approach. Pointedly, it does not always inform the issue. Justice Samuel Alito once teased Scalia for his sometimes-rigid adherence to originalism during oral argument in Brown v. Ent. Merchants Ass’n,[5] where the Court held a California statute that restricted the sale or rental of violent video games did not comport with the First Amendment. After Scalia had posed a question to the advocate, who hesitated in responding, Alito mockingly explained the question: “What Justice Scalia is asking is what did James Madison think about video games?”

Perhaps appellate advocates have always contended with politics in preparing briefs and oral arguments, but the impact of it today seems more acute than at any time in my experience. And the nature of the politics intruding on judicial decision-making also seems more extreme.

 

[1] See, e.g., Haley BeMiller, Jessie Balmert, and Laura A. Bischoff, “Ohio Republicans discussing impeachment of Chief Justice Maureen O'Connor after map ruling,” Columbus Dispatch, Mar. 18, 2022, https://www.dispatch.com/story/news/2022/03/18/ohio-republicans-want-impeach-maureen-oconnor-over-redistricting/7088996001/.

[2] 554 U.S. 570 (2008).

[3] See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic (Aug. 24, 2012) (book review), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.

[4] Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).

[5] 564 U.S. 786 (2011).