Appellate Advocacy Blog

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

Sunday, January 23, 2022

Disparity's Relationship to Discrimination

Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.  

But disparate outcomes among groups do not always reflect discrimination.

In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.[1]

I.    Disparity does not equal discrimination.

Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.

    A.    In many areas, disparity cannot be attributed to discrimination.

Disparities exist everywhere. For example:

The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.[2]

The majority of legal writing professors are female.[3]

The overwhelming majority of individuals convicted of violent crimes are men.[4]

The majority of nurses are female.[5]

The majority of professional football and basketball players are African-American.[6]

The majority of professional baseball players are white.[7]

The majority of methamphetamine users are white.[8]

Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes.[9] And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.

Put simply, identifying a disparity in a particular context proves nothing.

    B.    Disparities exist within groups based on cultural and other factors unrelated to discrimination.

The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group.[10] What did social scientists identify as the reason for the disparity?

The quality of a person’s family upbringing.

Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:

[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.[11]

Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:

How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”[12]

Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.”[13] Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”[14]

In other words, not all – or even most – disparities are reducible to racism

    C.    When objective and non-discriminatory measures are used, disparate outcomes still result.

In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname.[15] From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry.[16] In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry.[17] And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.[18]

Does this mean that the NFL is discriminating against African American kickers? Of course not.

    D.    Disparities result because individuals self-select into different professions.

Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices.[19] As Sowell explains:

There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.[20]

To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”[21] 

Simply put, in many instances, disparate outcomes have nothing to do with discrimination.

II.    The solution – use empirical data to exclude non-discriminatory causes of disparity.

As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.

As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.

[1] See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube

[2] See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)

[3] See Legal Writing Professor Demographics and Statistics [2022]: Number Of Legal Writing Professors In The US (zippia.com)

[4] See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles

[5] See Registered Nurse Demographics and Statistics (2022), available at:  Registered Nurse Demographics and Statistics [2022]: Number Of Registered Nurses In The US (zippia.com)

[6] See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista

[7]  See Professional  Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics [2022]: Number Of Professional Baseball Players In The US (zippia.com)

[8] trends of meth use by ethnicity and gender by www.drug-rehabs.org

[9] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)

[10] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

[11] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[12] See id.

[13] See id.

[14] See id.

[15] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[16] See id.

[17] See id.

[18] See id.

[19] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[20] See id.

[21] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[22] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

January 23, 2022 in Appellate Justice, Appellate Practice, Books, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, January 15, 2022

Unconventional Writing Tips

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

1.    Don’t write.

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

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

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

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

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

Yeah, whatever. Go away.

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

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

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

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

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

3. “Write drunk. Edit sober.”[2]

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

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

4.    Invent words.

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

Think Obamacare.

Think Bushisms.

Think Californication.

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

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

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

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

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

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

Blah, blah, blah.

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

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

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

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

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

Don’t use passive voice.

Don’t end sentences with a preposition.

Don’t mix verb tenses.

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

Use common sense.

Trust your judgment.

Rely on your instincts.

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

7.    Get a little nasty sometimes.

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

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

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

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

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

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

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

8.    Don’t edit too much.

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

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

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

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

9.    Write like a human being.

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

Be conversational.

Be humorous (in appropriate circumstances).

Be straightforward.

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

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

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

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

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

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

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

Indeed, it was.

10.    Ask questions.

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

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

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

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

 

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

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

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

[4] Id. at 1.

[5] Id.

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

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

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

Sunday, January 2, 2022

Welcome to 2022

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

[10] Id. at 708.

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

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

Sunday, December 26, 2021

Prediction: Dobbs v. Jackson Women’s Health

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

A.    Background

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

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

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

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

B.    Dobbs v. Jackson Women’s Health

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

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

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

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

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

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

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

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

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

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

 

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

[2] See id.

[3] See id.

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

[5] See id.

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

[7] Id.

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

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

Sunday, November 28, 2021

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

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

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

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

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

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

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

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

I.    The Problems

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

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

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

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

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

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

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

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

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

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

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

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

II.    The Solutions   

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

November 28, 2021 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Thursday, November 25, 2021

An Appellate Practitioner Gives Thanks

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

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

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

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

Sunday, November 14, 2021

Why Confidence in the United States Supreme Court is Declining

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

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

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

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

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

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

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

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

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

The Constitution says nothing about abortion.

It says nothing about same-sex marriage.

It says nothing about whether money constitutes speech.

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

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

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

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

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

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

Why?

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

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

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

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

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

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

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

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

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

***

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

 

 

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

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

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

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

[5]  505 U.S. 833 (1992).

[6] See id.

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

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

[9] Id.

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

[11] See id.

[12] See id.

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

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

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

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

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

Saturday, October 30, 2021

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

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

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

Sadly, Texas didn’t learn its lesson.

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

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

So here we are again.

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

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

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

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

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

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

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

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

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

 

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

[2] See id.

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

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

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

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

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

Sunday, October 24, 2021

Qualifying for Qualifying Immunity

Last week, in two per curiam opinions, the Supreme Court reversed decisions of the Ninth and Tenth Circuits by holding that the police officers accused of exercising excessive force were entitled to qualified immunity. In both decisions, the Court found that no clearly established precedent put the officers on notice that their actions violated the suspect’s rights. Many commentators described the decisions as a blow to police reform and asserted that the Court displayed a tin ear about roiling concerns about racial justice and criticisms of qualified immunity.

That dissatisfaction was poignantly expressed at the end of summer by U.S. district court judge Carlton Reeves where he reluctantly applied qualified immunity to dismiss an action against a Mississippi police officer, who pulled over a Mercedes driven by a black man on the assumption by the officer that the driver had to be involved with drugs to be operating the luxury car. He detained the man for nearly two hours while the car was disassembled (and then left that way) in a fruitless search for contraband. Through simple declarative sentences recalling other similarly wrongheaded incidents,[1] many of which resulted in tragic deaths, Judge Reeves made clear how qualified immunity has served as a “shield” for police abuse and misconduct, even as he followed controlling precedent.

To be sure, the judge-made doctrine of qualified immunity has its most urgent and controversial application in the context of police actions. Even critics of qualified immunity acknowledge that some split-second decisions do not allow the type of reflection necessary to understand why certain conduct crosses a line. Yet, qualified immunity applies not only to pressing life or death situations, but also to circumstances where deliberation is possible and where the offender is not a police officer, but people knowledgeable in the law. Two cases in which I have been involved demonstrate the uneven application of qualified immunity and why the doctrine is overdue for an overhaul.

In Stamps v. Town of Framingham,[2] the First Circuit denied qualified immunity to a police officer, who as a member of a SWAT team, was asked to watch an elderly black man while other members of the team searched the man’s apartment for a stepson wanted in connection with selling crack. SWAT had been briefed that Eurie Stamps, Sr., a 68-year-old retired Metro worker, was no threat. Shortly after midnight, the team executed a raid by throwing a flashbang grenade through the kitchen window as others battered down the front door. When they met Stamps, he complied with an order to get down on the floor on his stomach with his hands and feet in the air. The officer asked to watch Stamps as the search continued, pointed his assault rifle at Stamps’s head with the safety off and his finger on the trigger. Then, the officer unintentionally pulled the trigger, killing Stamps. The stepson was not in the apartment.

 Framingham defended by claiming that qualified immunity should require dismissal of the subsequent lawsuit because it was not “clearly established” that the unintentional discharge of the rifle violated the decedent’s rights. The First Circuit made short work of the claim. Pointing the rifle at a person’s head when he posed no threat and was suspected of no criminal act was the intentional act that put in motion the weapon’s discharge and that type of recklessness was comparable to past precedents, making it clearly established and putting police officers on notice. The “clearly established” requirement was satisfied, largely by reference to federal appellate decisions in other circuits.

 However, in Echols v. Lawton,[3] the “clearly-established” requirement defeated the lawsuit. In Echols, the plaintiff had served seven years in prison for a crime he did not commit and that DNA evidence, examined as a result of work by the Innocence Project, finally exonerated him. Echols lost his family, his military career, and his health as a result of his long, imprisonment. He was released, after the State entered a nolle prosequi on the charges. A bill was introduced in the legislature to compensate him, and the Georgia Claims Advisory Board voted unanimously twice to support the bill. However, the bill was derailed when the prosecutor sent letters to key legislators, asserting the conviction was proper and, falsely, that Echols remained under indictment for the original charges of rape and kidnapping. The bill then died.

Echols sued the prosecutor for violations of his First and Fourteenth Amendment rights. The Eleventh Circuit, while finding the prosecutor’s actions, undertaken with deliberation, highly detestable and likely libel per se, nonetheless found that the violations were not “clearly established” in that circuit. Even if other circuits would have found no qualified immunity based on existing precedent, the Eleventh Circuit requires an on-point in-circuit precedent before qualified immunity can be denied. Echols now serves as a precedent for a future case, clearly establishing that a prosecutor cannot misrepresent to other government officials the case’s status. It is now “clearly established” that the same misconduct would not be immunized in the future. It did not matter that rules of ethics and rules specifically applicable to prosecutors plainly prohibited what occurred here; the court required a precedential decision from within the circuit, something that other circuits do not. Oddly, Supreme Court precedent does not even require a prior ruling on the issue.

Interestingly, the panel included a judge sitting by designation from the Sixth Circuit. He concurred in the decision, only because of the Eleventh Circuit requirement of a prior in-circuit decision, stating that his circuit would have denied qualified immunity.

The many decisions that provide qualified immunity insensibly to a host of situations where the violation is patent and the different standards applied by the circuits at this late date in the doctrine’s existence calls for its reexamination. Reconsideration of the doctrine is coming – sooner is much better than later.

 

[1] See Jameson v. McClendon, No. 3:16-cv-595, https://www.documentcloud.org/documents/7013933-Jamison-v-McClendon.html.

[2] Stamps v. Town of Framingham, 813 F.3d 27, 29 (1st Cir. 2016).

[3] Echols v. Lawton, 913 F.3d 1313 (11th Cir.), cert denied, 139 S.Ct. 2678 (2019).

October 24, 2021 in Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, October 2, 2021

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

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

1.    Chief Justice John Roberts

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

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

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

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

2.    The Shadow Docket

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

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

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

3.    The Justices’ Political Views

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

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

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

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

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

The Solution

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

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

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

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

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

 

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

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

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

Monday, September 27, 2021

Judicial Selection & A Divided Nation

Two weeks ago I blogged about Lance B. Wickman's article, Lawyers as Peacemakers, in the most recent issue of the Journal of Appellate Practice & Process. Today, I want to discuss part of Dean Erwin Chemerinsky's article--The Non-United States of America.

Dean Chemerinsky spends the first half of his article positing reasons for the deep partisan divides in our country. He identifies structural aspects of our governmental system, like the Electoral College, as partially responsible. He also looks at the role of the media, former President Trump, and the COVID-19 pandemic. According to Dean Chemerinsky, the "deep partisan divide in the United States" is "the greatest threat to democracy that [our country] has faced" and could lead to "serious talk of secession." Despite these dire words, he remains "an optimist and believe[s] that there is much more that unites the American people than divides us."

In that spirit, he offers one suggestion--"change the method of picking Justices and lower federal court judges to make it less partisan." Dean Chemerinsky points to states like Alaska that have a merit selection process for picking state court judges.  Arizona has something similar. Our Judicial Nominating Commissions take applications for open judicial positions. The Commissions interview candidates and send a bi-partisan list to the governor, who selects a judge from that list. Many merit  selection states have systems modeled after the state of Missouri.

According to Dean Chemerinsky, former President Jimmy Carter used merit-selection panels for judicial vacancies. Dean Chemerinsky recommends that such panels be ideologically diverse and include non-lawyers. These panels would give the president at least two names to fill vacancies, and the president would promise to select from the list. Obviously, this would be a change from how presidents have nominated judicial candidates in the past. Traditionally, presidents rely heavily on the home state senators who are of the same party as the president for names.

Such a panel is an interesting idea. Dean Chemerinsky states that the panels should send "the most qualified individuals" to the president, but that is certainly an objective standard. And Dean Chemerinsky recognizes that presidents would have to voluntarily agree to create such a commission.  As he writes, "my hope is that once a courageous president creates the system, especially for high-profile Supreme Court nominations, political pressure will be great for others to follow the practice of merit selection."

I do think that the merit-selection process has worked well in some states, and it would be interesting to see something similar adopted at the federal level.

September 27, 2021 in Appellate Court Reform, Appellate Justice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Sunday, September 5, 2021

The Abortion Mess Continues

In the words of the late Justice Antonin Scalia, “[l[ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Roe v. Wade (and Planned Parenthood of Southeastern Pennsylvania v. Casey) stalks the Fourteenth Amendment’s jurisprudence yet again, reflecting the constitutional mess that these decisions created.[1]

Specifically, in Dobbs v. Jackson Women’s Health Organization, the Court will decide whether a Mississippi law, which bans abortions after the fifteenth week of pregnancy, violates the right, created in Roe and reaffirmed in Planned Parenthood, to obtain abortions before viability (which occurs at approximately twenty-four weeks of pregnancy).[2] By way of background, in Roe, the Court interpreted the Fourteenth Amendment’s Due Process Clause to support a fundamental right to terminate a pregnancy in certain circumstances.[3] In so holding, the Court adopted a trimester framework that balanced a woman’s right to terminate a pregnancy with a state’s right to regulate the abortion procedure. In the first trimester, women had an unfettered right to terminate a pregnancy.[4] In the second trimester, states could regulate abortion to protect a women’s health.[5] After the second trimester – when the fetus became viable – states could prohibit abortions except when necessary to protect the life or health of the mother.[6]

Scholars and judges of all political persuasions criticized the Court’s decision in Roe, arguing that the right to abortion could not be found anywhere in the Constitution’s text and certainly was not inferable from the Fourteenth Amendment’s Due Process Clause, which protects procedural, not substantive rights.[7] These scholars were correct: the abortion right in Roe was predicated in substantial part on and an outgrowth of the Court’s decision in Griswold v. Connecticut, where the Court held that the Constitution contains invisible “penumbras,” that are “formed by emanations from those guarantees [in the text] that give them life and substance.”[8] In other words, the Court could create whatever rights it wanted, regardless of whether the text supported creating those rights.

Two decades later, in Planned Parenthood, the Court made the problem worse. In a 5-4 decision, the Court upheld the central holding in Roe (the right to obtain abortions before viability) but rejected Roe’s trimester framework. In its place, the Court adopted the “undue burden,” test, which stated that before viability, states may not enact laws that impose a substantial burden on a woman’s right to access abortion services.[9] It is obvious why Planned Parenthood introduced instability and unpredictability into abortion jurisprudence. After all, what constitutes an “undue burden” on the right to obtain a pre-viability abortion? No one knew the answer. Perhaps it was located in Griswold’s penumbras, which only the Court could access and define.

Not surprisingly, in response to what many rightfully perceived as judicial overreach in Roe and constitutional ambiguity in Planned Parenthood, some states embarked on a decades-long and seemingly never-ending mission to eviscerate, if not effectively overturn, Roe through legislation that imposes various restrictions upon when and under what circumstances women can obtain abortions. For example, in Planned Parenthood, a Pennsylvania law required minors to obtain parental consent, and adult women to inform their spouses, before obtaining an abortion. The Court upheld the former provision and invalidated the latter.[10] In Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, Texas and Louisiana, respectively, enacted laws requiring physicians to obtain hospital admitting privileges before providing abortion services.[11] In two 5-4 decisions, the Court invalidated both laws.[12] These cases are just a sample of the many instances in which states attempted to limit, directly or indirectly, access to abortion.[13]  

And in every case,  the Court declined the opportunity to clarify definitively the nature and scope of the abortion right, such as by unequivocally upholding or overruling Roe, or adopting categorical rules concerning when and under what circumstances women could access abortions. Instead, the Court applied the malleable “undue burden” test, which resulted in a case-by-case jurisprudence that led to uncertainty and often kept the abortion right hanging by a thread, dependent more on the current justices’ ideological predilections than on principled constitutional law. Simply put, the Court’s approach ensured that the abortion right would remain in constitutional purgatory, mired in uncertainty, and continuously under attack by states that viewed abortion as constitutionally unsupportable and morally indefensible.

Unfortunately, the saga continues.

In the latest installment of How to Overturn Roe While Acting Like You Are Not, the State of Mississippi has enacted a law that bans abortions after fifteen weeks – and thus bans a portion of previability abortions. Only this time, the plot doesn’t just involve Dobbs v. Jackson Women’s Health Organization, where the Court will decide whether Mississippi's law passes constitutional muster.  Rather, Texas has decided to make yet another appearance into the abortion sage by passing an unusually bizarre law that: (1) bans all abortions after six weeks; and (2) gives citizens, not the state, enforcement power by authorizing private causes of action against those who provide or assist in providing abortion services after six weeks.[14] This law is certainly unconstitutional; many women do not even know that they are pregnant at six weeks, thus rendering the six-week limit a substantial and unconstitutional burden on abortion access. Not surprisingly, in Whole Women’s Health v. Jackson, the Petitioner sought an order from the Court preliminarily enjoining the law's enforcement.[15]

You’d think that, based on Roe and Planned Parenthood, the Court would have granted the injunction.

Think again.

Last week, in a 5-4 decision, the Court declined to issue an injunction. [16] To be fair, the majority did not rule on the merits of Texas’s law. Rather, the Court held that the Petitioner did not meet the standard for obtaining a preliminary injunction because, among other things, there was no evidence that any private citizen intended to enforce the law, or that the Court had the authority to issue an injunction against state judges who were asked to decide the law's constitutionality.[17] The Court was careful to emphasize, however, that its decision was not “based on any conclusion about the constitutionality of Texas’s law.”[18]

Yeah, right.

The majority doesn’t live in a fantasy world. It knew that its decision would allow a law to go into effect that unquestionably violated Roe and Planned Parenthood, and effectively outlawed abortion for most women in Texas. As Justice Sotomayor explained in her dissent:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.[19]

Furthermore, as Justice Breyer noted in his dissent, the Court could have enjoined the law on the ground that a state “cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”[20] Ultimately, the Court’s refusal to issue the injunction in Whole Women’s Health v. Jackson suggests that five justices may be prepared to overturn Roe or, at the very least, severely restrict abortion rights.

For that and other reasons, Dobbs v. Jackson Women's Health Organization is perhaps the most important abortion case in years. Whatever the justices decide, they should ensure that the opinion ends the constitutional mess that is abortion jurisprudence, in which the abortion right has been plagued by uncertainty and the Court’s decisions characterized by anything by clarity.  The Court can do so by issuing a clear and categorical decision about whether abortion is a fundamental right and, if the answer is yes, clarifies definitively the scope of this right. The Court has several options, including:

  1. Overturn Roe and return the abortion issue to the states.
  2. Overturn Planned Parenthood but not Roe and return to the trimester framework.
  3. Overturn Planned Parenthood and Roe, but hold that the Equal Protection Clause supports the right to abortion.
  4. Uphold Planned Parenthood and Roe based on stare decisis.

The absolute worst result would be if the Court issued yet another fractured, 5-4 decision that invalidated or upheld the Mississippi law, but otherwise provided no clarity regarding the scope of the abortion right and the states’ power to restrict its exercise. The worst result would be if Chief Justice Roberts engaged in legal shenanigans yet again in a misguided to preserve the Court’s institutional legitimacy. The worst result would be if the Court issued a plurality opinion with multiple concurrences and dissents that made readers think that the Court just can’t – and perhaps never will – reach any agreement on how to address the constitutional mess that Roe created, and that Planned Parenthood exacerbated. Whatever happens, the abortion saga should be a lesson in what happens when courts ignore the Constitution and create rights out of thin air.

The time has come to bring the abortion soap opera to a conclusion and end the decades-old constitutional charade that Griswold, Roe, and Planned Parenthood created.  In other words, either kill the monster or allow it to forever terrorize constitutional law and lurk in the hidden penumbras, waiting to trap and possess unsuspecting justices in those penumbras.  

The Court’s abortion jurisprudence, however, suggests that the ending in the latest installment of How to Overturn Roe While Acting Like You Are Not will leave the audience wanting, just as in those 80s’ horror movies that ended with the killer seemingly dead, only to open an eye or move a body part before the screen fades out, signaling to the audience that yet another sequel is on the horizon. 

Stay tuned.

 

[1] Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (Scalia, J., concurring)

[2] No. 19-392, available at: Dobbs v. Jackson Women's Health Organization - SCOTUSblog.

[3] 410 U.S. 113 (1973).

[4] See id.

[5] See id.

[6] See id.

[7] See, e.g., 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).

[8] 381 U.S. 479 (1965) (brackets added).

[9] 505 U.S. 833 (1992).

[10] See id.

[11] 579 U.S. 582 (2016); 591 U.S.     , 2020 WL 3492640.

[12] See id.

[13] See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

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

[15] See id.

[16] See id.

[17] See id.

[18] Id.

[19] Id. (Sotomayor, J., dissenting).

[20] Id. (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976)) (brackets in original).

September 5, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, August 21, 2021

Social Media, State Action, and the First Amendment

In a climate of extreme partisanship and polarization, platforms such as Facebook and Twitter – with the express authorization of Congress under Section 230 of the Communications Decency Act – exercise unprecedented power to censor the content and viewpoints that individuals express on these platforms, particularly concerning political speech. And social media platforms have done precisely that, censoring views that they subjectively deem objectionable or inappropriate – with no repercussions whatsoever. In so doing, social media platforms thwart the robust exchange of opinions and thus undermine the marketplace of ideas that is so essential to a properly functioning democracy and a diverse society.

If the federal government engaged in such conduct, it would unquestionably violate the First Amendment. Social media platforms, however, are private companies, not government (state) actors, thus rendering the First Amendment inapplicable and enabling social media to engage in content and viewpoint-based discrimination with impunity.  

That has to change – now.

For the reasons set forth below, the United States Supreme Court should hold that social media platforms such as Facebook and Twitter are state actors and, as such, prohibited from engaging in conduct that would violate individuals’ free speech rights.

1. Through Section 230 of the Communications Decency Act, Congress gave (and delegated to) social media the power to engage in                            content-based discrimination.

A private company can be deemed a state actor when there is a close relationship between the private party's actions and the government's objectives, or when the private party performs a traditional government function. In Skinner v. Railway Labor Executives’ Association, for example, Congress empowered private companies to conduct drug tests of their employees.[1] The Labor Association objected, arguing that the drug tests violated the Fourth Amendment's protection against unreasonable searches and seizures.[2] The Supreme Court held that, although the railroad was a private company, the tests, which the government explicitly authorized, rendered the railroad  a state actor for this purpose.[3] Additionally, in Marsh v. Alabama, the Court held that when a private company exercises powers that are traditionally reserved to the states, it is engaging in a public function and thus must respect constitutional safeguards.[4]

Based on Skinner, social media can arguably be deemed a state actor. Through Section 230, Congress explicitly authorized social media platforms to do precisely what the First Amendment prohibits: censor information based on content or viewpoint.  As one commentator explains:

Section 230 … grants a … “good Samaritan” immunity to online platforms as well. In this second immunity, Section 230 authorizes internet platforms to block content deemed “lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.” Section 230 explicitly exempts websites from most civil and state criminal liability for any action they take in a “good faith effort” to exclude such “offensive” material.[5]

As Professor Dawn Nunziato states, “Congress encouraged private Internet actors to do what it could not do itself—restrict harmful, offensive, and otherwise undesirable speech, the expression of which would nonetheless be protected by the First Amendment.”[6]  

Simply put, Section 230 “effectively immunizes and induces private conduct that would be unconstitutional if governmental actors did it themselves.”[7] And that is the problem. Congress should not be permitted to evade First Amendment protections simply by giving social media platforms – the modern-day marketplace of ideas – the power to do that which it could never do.

2.    Social media is the new public forum and the modern-day marketplace of ideas.

Most citizens do not express their political views on Main Street, in public parks, or in the public square. Rather, they express their views online, such as on their Facebook and Twitter pages. Indeed, the views that millions of social media users express often relate directly to political and public policy issues, such as judicial nominees, abortion, climate change, campaign finance reform, and infrastructure. To be sure, a person need spend only a few minutes on Facebook or Twitter – or read Alexandria Ocasio Cortez’s Twitter feed (among others in both parties) – to realize that these platforms are the primary vehicle by which users express a diverse array of political views and engage in often heated debates on public policy issues.

Put simply, the marketplace of ideas – the forum in which diverse ideas on matters of public concern, however unpopular or distasteful, are welcome – is now located on social media platforms.

By censoring information that it subjectively and arbitrarily deems “objectionable,” social media is compromising the marketplace of ideas by doing precisely what the First Amendment prohibits – engaging in content and viewpoint discrimination. If legislators are to remain committed to respecting all points of view, rejecting discrimination and arbitrariness, and recognizing that unpopular ideas are essential to public discourse, they should conclude that social media platforms, particularly due to the power Section 230 grants, are state actors.

3.    A robust public discourse – including welcoming offensive and unpopular ideas – is essential to democracy, liberty, and diversity.

Politics and public discourse have become so divisive and polarized that diverse and unpopular viewpoints – regardless of political affiliation – are often met with scorn and ridicule.  By censoring diverse views that challenge widely accepted and prevailing views, social media exacerbates this problem.

It encourages groupthink.

It discourages critical analysis of public policy issues.

Don’t be fooled by the claim that social media platforms are simply preventing the dissemination of “misinformation.” That determination is subjective and arbitrary. It is also anathema to the principle that liberty, democracy, and diversity depend on tolerating speech that we hate and views that we abhor.  Ultimately, welcoming all viewpoints and eschewing discrimination vindicates every individual’s interest in having a voice in democracy. As Erwin Chemerinsky stated:

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action.[8]

Upholding the social consensus – and the First Amendment’s original purpose – supports a finding that social media platforms, due both to Section 230 and their status as the new public forum, are state actors. 

***

The solution to this problem is simple: social media should retain immunity for the comments posted by its users. However, social media should only be prohibited from censoring speech that the Court has held receives no First Amendment protection. This includes, for example, obscenity and speech that incites violence.

Otherwise, the marketplace of ideas should remain a place where diverse and unpopular ideas are welcomed.  

 

[1] 489 U.S. 602 (1990)

[2] See id.

[3] See id.

[4] See id.

[5] Jed Rubenfeld, Are Facebook and Google State Actors? (Nov. 4, 2019), available at: Are Facebook and Google State Actors? - Lawfare (lawfareblog.com) (emphasis in original).

[6] Id.

[7] Id.

[8] David L. Hudson, Jr., In the Age of Social Media, Expand the Reach of the First Amendment, available at:    In the Age of Social Media, Expand the Reach of the First Amendment (americanbar.org) (quoting Erwin Chemerinsky) (emphasis added).

August 21, 2021 in Appellate Justice, Appellate Practice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (1)

Thursday, August 19, 2021

The Next Supreme Court Justice: A Case for Greater Diversity

For the Supreme Court, the question of the summer has been whether Justice Stephen Breyer will retire or remain on the Court. Aware that both racial and gender diversity have been historically lacking on the Court, President Biden has promised to nominate an African-American woman if Justice Breyer leaves. Although racial and gender diversity are the most important and most visible considerations in having a diverse Court, President Biden should consider other matters of diversity as well in selecting a nominee.

Racial diversity is a top priority. Only two African-Americans have sat on the Supreme Court, and neither has been a woman. One Hispanic, Justice Sonya Sotomayor, has been a member of the Court. But no Asians or Native Americans have served on the Court.

Gender diversity also is an essential consideration. When asked how many women on the Court would be enough, Justice Ruth Bader Ginsburg famously answered "nine." Although the Court has as many women now as it ever has had at one time, only five women have been justices in the history of the Court. 

The more diverse the Court is the more it will reflect the diversity of the nation. This will benefit the Court by adding different perspectives and by increasing the bar's and the general public's faith in the Court. But the president should not stop at just racial and gender diversity. In addition to race and gender, he should consider other attributes of a prospective justice: experience, geography, education, and religion.

Experience. Recent appointments to the Supreme Court have overwhelmingly come from federal appellate courts (the only current justice not to have been a federal appellate judge is Justice Elena Kagan, who was the Solicitor General before her appointment). The last state court judge appointed to the Court was Justice Sandra Day O'Connor (also the first woman on the Court), who had been on the Arizona Court of Appeals (and also in the state legislature). While it has been said that a federal judge is someone who knows a Senator and a state judge is someone who knows a Governor, there obviously are differences between the two. That being said, many cases come to the Supreme Court directly from the highest court of a state. Having a justice who has worked in a state court system would be a plus.

And who says that Supreme Court justices need to already be judges anyway? It has been quite a while since the appointment of a practicing attorney or academic without judicial experience.

Although Justice Sotomayor was a federal prosecutor, there also generally has been a lack of justices with criminal law experience. How about the appointment of a Public Defender to bring a different perspective?

Geography. It was essential in the early years of the Court that there be geographical diversity because the justices were required to ride the circuits. In recent memory, though, the Court has been the domain primarily of justices who either were from the Northeast or worked there a considerable portion of their careers. When Justice Ginsburg and Justice Antonin Scalia were on the Court, there were four justices from New York City (at least each was from a different borough).

There are two Southerners by birth currently on the Court, Justice Clarence Thomas (Georgia) and Justice Amy Coney Barrett (Louisiana). This is the most representation the South has had on the Court in recent memory. And the appointment of Justice Neil Gorsuch to the Court added a justice originally from a mountain state (Colorado), giving the Court that added perspective.

Although it no longer is necessary to have justices from different regions in order to ride the circuits, the Court best reflects the nation when it reflects the nation's geographic diversity. Further, some matters that come before the Court are unique to certain areas of the country. A justice from one of these areas would be able to contribute knowledge and perspective that other justices may lack.

Education. When Justice Barrett joined the Court, the dominance of Ivy League law schools in producing Supreme Court justices was diminished ever so slightly. Justice Barrett graduated from the University of Notre Dame law school, leaving an even split of law school alma maters among the other justices between Harvard University and Yale University. But it has been many years since any member of the Court has been a graduate of a public university's law school. There certainly must be excellent jurists from top public law schools like the University of California, the University of Michigan, and the University of Virginia who could be nominated. While diversity in law schools attended may not make much difference in perspective, it could help in dispelling the notion that the Court is elitist or somehow out of touch with those who are not.

Religion. Prior to Justice Gorsuch joining the Court, it was composed of six Catholic justices and three Jewish justices. Justice Gorsuch became the first Protestant on the Court since Justice John Paul Stevens. The Court has never had a Muslim justice or any justice who did not identify as Christian or Jewish, nor at least recently has it had a justice that did not identify with some religion. While religious affiliation does not necessarily produce monolithic perspective among justices (see, for instance, Justice Thomas and Justice Sotomayor, both Catholic), diversity in this area would increase confidence in the Court's decisions related to religious matters.

  ***

In the end, perfect diversity is neither required nor achievable. After all, the Court is not a representative body. Even so, the standing of the Court in the eyes of a more and more diverse citizenry would increase if it better reflected this increasing diversity. And the Court itself would benefit from greater diversity of experience, geography, education, and religion as it deals with the difficult and complex issues that come before it.

Although Justice Breyer may not retire this year, a new justice will be nominated sooner or later. When that happens, the President should consider a variety of diversity matters in addition to race and gender.

August 19, 2021 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 27, 2021

Waiting for Warrants? Chief Justice Roberts’s conflicting opinions on the speed of warrant applications in Lange and McNeely.

    In his recent concurring opinion in Lange v. California, Chief Justice Roberts argued in favor of a robust version of a “hot pursuit” exception to the warrant requirement. His argument was motivated, in part, by a concern that officers would waste too much time if forced to obtain a warrant in those exigent circumstances. Interestingly, though, Roberts’s claims about the time-consuming nature of the warrant application process were contradicted by another opinion Roberts himself authored just eight years earlier in Missouri v. McNeely. The conflicting opinions are not just confusing. They generate conflicting incentives for police departments to invest in flexible and efficient procedures to approve warrants, threatening to undermine advancements that help preserve Fourth Amendment rights.

    In his Lange opinion, Roberts claimed that while a suspect flees into their home, “even the quickest warrant will be far too late.”[1] Roberts cited to an amicus brief submitted by the Los Angeles County Police Chiefs’ Association, which argued that “[a] ‘fast’ warrant application may be processed in an hour and a half if factors are favorable (e.g., it occurs during normal court hours, has strong supporting facts, receives quick responses from the magistrate or judge, etc.).”[2] The Association suggested that even more support is needed for an arrest warrant, such as evidence of a completed investigation, and that such warrants are rarely issued quickly absent compelling reasons.[3] In his opinion, Roberts went on to claim that “[e]ven electronic warrants may involve time-consuming formalities,” such as a written application or an in-person appearance.[4] Thus, Roberts argued that limitations on the hot pursuit branch of exigent circumstances would allow reckless suspects to freely elude warrantless capture.

    But Roberts’s views on the laboriousness of the warrant application process directly contradicted his own concurring opinion in 2013’s Missouri v. McNeely just eight years earlier. In McNeely, Roberts claimed that “police can often request warrants rather quickly these days,” including electronic warrant applications that were available in at least 30 states at the time.[5] Roberts specifically cited Utah’s e-warrant procedures, whereby “a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes.”[6] Similarly, officers in Kansas can email warrant requests to judges and receive responses in less than 15 minutes.[7]

    Which Chief Justice Roberts was right? In truth, both. Neither opinion presented incorrect or inaccurate information. Roberts correctly described the common plight of officers in Los Angeles, while also accurately presenting the capabilities of e-warrant systems in Utah and Kansas. But his selective approach to the data in each presented conflicting images of uniform procedures and time frames for obtaining warrant across the country. As these opinions demonstrate, such uniformity does not exist across jurisdictions.

    Sweeping such disuniformity under the rug is particularly troubling. It disincentives jurisdictions from creating more efficient warrant application procedures. In McNeely, Roberts seemed to speak with approval about the evolution of e-warrants, suggesting that they may resolve many of the problems presented in emergency cases while still maintaining the neutral magisterial review of warrant applications that our Constitution typically requires. But in Lange, Roberts seemed to reward jurisdictions that have been slower to develop those kinds of warrant regimes. Roberts suggested that in such jurisdictions, perhaps obtaining a warrant to respond to a rapidly-evolving emergency is entirely unnecessary.

    Why, then, would jurisdictions continue to develop those efficient methods for warrant applications? Roberts’s suggestion removes one of the primary incentives to duplicate procedures like those in Utah and Kansas. Only if court decisions look upon those programs with favor and reward those jurisdictions for their efforts will policymakers continue to build such programs. Roberts’s flip-flop is thus a dangerous one for the future of e-warrant procedures. His earlier views provide a much greater incentive for the continued development of rapid warrant procedures that can resolve many Fourth Amendment issues in modern policing.

 

[1] Lange v. California, 594 U.S. __ (2021) (slip op. at 9) (Roberts, C.J., concurring).

[2] Brief of Los Angeles County Police Chiefs’ Association As Amicus Curiae in Support of the Judgment Below 24-25, Lange v. California, 594 U.S. __ (2021), https://www.supremecourt.gov/DocketPDF/20/ 20-18/166350/20210114161910913_40463%20pdf%20Ito%20br.pdf.

[3] Id. at 25.  

[4] Lange, slip op. at 9 (Roberts, C.J., concurring) (citing Colo Rev. State. § 16-3-303 (2020) and Mass. Gen. Laws, ch. 276, §2B (2019)).

[5] Missouri v. McNeely, 569 U.S. 141, 172 (2013) (Roberts, C.J., concurring).

[6] Id. at 172–73 (citations and quotations omitted).

[7] Id. at 173 (citations and quotations omitted).

July 27, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Saturday, July 10, 2021

When Writing a Brief, Think Like a Judge

Excellent writers know how to write for their audience, not for themselves.

Imagine that you are a justice on the United States Supreme Court and responsible for deciding whether the word liberty under the Fourteenth Amendment’s Due Process Clause encompasses a right to assisted suicide. In addition to the parties’ briefs, you intend to read over twenty amicus briefs.

What criteria would you use to identify the most persuasive appellate briefs?

The best lawyers know the answer. It’s all about the quality of your writing. And the best writers place themselves in the shoes of the reader.

Below are five writing tips to maximize the persuasive value of your brief.

1.    Use plain language

[Too many lawyers believe that] it is essential to legal English that one write as pompously as possible, using words and phrases that have long disappeared from normal English discourse.”

Justice Antonin Scalia

When writing a brief, forget about the words you encountered on the SAT and resist the temptation to sound intelligent by using ‘fancy’ and esoteric words, or legalese. Doing so undermines your credibility and persuasiveness. Write like you are a human being. After all, if you had to read over twenty briefs, would you want to read briefs that required you to consult a dictionary to understand what the advocate was saying? Of course not.

Consider the following example:

As discussed infra, it is axiomatic that the defendant’s words had a deleterious impact upon the plaintiff’s sterling reputation, which as demonstrated herein, was compromised by the invidious invectives hurled at the plaintiff, the effects of which were exacerbated when the defendant repeated these deleterious statements in the local newspaper. Such statements are ipso facto defamatory and, as shown infra, render the plaintiff’s claim meritorious as a matter of fact and law, thus justifying the damages sought herein.

Huh? What?

If you were a justice, how would you react to reading this nonsense?

Consider the next example:

The defendant’s statements were defamatory as a matter of law. They were published to a third party. They subjected the plaintiff to scorn and ridicule in the community. They harmed irreparably plaintiff’s reputation. They were made with an intentional disregard for the truth or falsity of the statements. Put simply, the statements represent a textbook case of defamation.

It should be obvious that the second example, although far from perfect, is better than the first.

Be sure to write in a simple and direct style that eliminates ‘fancy,’ esoteric, and unnecessary words, and legalese.

2.    Be concise

Most people don't like others who talk too much. Judges are no different. 

If you had to read over twenty briefs in a specific case, wouldn’t you favor briefs that were concise, clear, and to the point? Of course.

Thus, in your brief, get to the point immediately. Identify the controlling legal issue. Tell the court what you want (the remedy you seek). Tell the court why you should win (using the relevant facts and legal authority). Omit unnecessary facts and law. Address only relevant counterarguments. Avoid unnecessary repetition and excess words.

Think about it: if you had just read five briefs and then turned to the sixth and final brief that you intended to read that day, wouldn't you want that brief to be concise and wouldn't you want the writer to get to the point quickly? Of course.

3.    Capture the court’s attention

Most people dislike boring movies. They dislike boring books. They dislike boring people. And they dislike boring briefs.

Your writing should capture the court’s attention. It should tell a story. It should be entertaining. Consider the following example:

This case is about whether the defendant’s statements defamed the plaintiff. For the reasons that follow, the answer is yes. The defendant’s words were harmful to the plaintiff and published in a widely circulated newspaper. The defendant said these harmful things with little regard for the plaintiff’s reputation. These statements harmed the plaintiff’s reputation in the community and continue to harm the plaintiff’s reputation. As a result, the plaintiff has been damaged. The court should rule for the plaintiff.

Yeah, whatever.

That paragraph would probably put most judges to sleep. It almost put me to sleep writing it. Now consider the following example:

On December 8, 2018, the plaintiff’s life changed forever. After purchasing the New Jersey Times, the plaintiff reacted in horror when seeing that the defendant had written an article calling the plaintiff a “horrible human being” who had “sexually assaulted his co-workers and stolen money from his clients.” In the next few days, the plaintiff lost twenty-five percent of his clients. He received threatening emails, including one that said, “I hope you die.” Simply put, the defendant’s statements traumatized the plaintiff, caused irreparable reputational and economic harm, and nearly ruined the plaintiff’s life. The statements are defamatory as a matter of law -- and common sense.

Again, it should be obvious why the second example is better.

An example of a persuasive – and entertaining – brief is Chief Justice John Roberts’s brief in Alaska v. Environmental Protection Agency.[1] All law students should read this brief.

4.    Confront the weaknesses in your case and explain why they do not affect the outcome you seek

No one likes a person who is dishonest or evasive.

Likewise, judges do not like advocates who avoid confronting the weaknesses in their arguments. The best advocates acknowledge and confront those weaknesses. They address unfavorable facts and legal authority.  And they explain why those weaknesses do not affect the outcome that they seek.

Advocates who omit unfavorable facts or authority lose their credibility with the court and compromise the persuasiveness of their argument. Don’t be one of those advocates.

5.    Don’t make ‘red flag’ mistakes

When you're writing a brief, don’t make rookie mistakes. If you do, your credibility – and the persuasiveness of your brief – will be irreparably damaged. Some of these mistakes include:

  • Spelling and grammatical errors
  • Long sentences (i.e., over twenty-five words)
  • Inappropriate language (e.g., “The defendant is, simply put, a jerk and the lower court was clueless and ignorant in failing to realize that.”)
  • Extremely long paragraphs (a paragraph should never occupy an entire page)
  • Unnecessary emphasis (e.g., avoid bold and italics, and never use an exclamation point at the end of a sentence)
  • Demeaning the lower court or your adversary
  • Failing to follow the local court rules
  • Including too many block quotes
  • Citing overruled authority
  • Failing to cite unfavorable authority
  • Misrepresenting the record
  • Citing legal authority incorrectly
  • Requesting a remedy that the court has no power to grant
  • Telling the court what it must do, rather than respectfully requesting what it should do

Don’t make these mistakes. If you do, you will likely lose your case – and harm your reputation.

***

Ultimately, when writing a brief, use your common sense. Judges want to know what you want and why you should win, and they want you to explain it simply, concisely, and persuasively.

Simply put, great writers make great advocates.

 

[1] See Brief for Petitioner, Alaska v. Environmental Protection Agency, available at: 02-658.mer.pet.pdf (findlawimages.com)

July 10, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Profession, Legal Writing | Permalink | Comments (0)

Friday, July 2, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 2

WeeklyRoundupGraphic

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

US Supreme Court News and Opinions:

It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.

On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes.  More from Bloomberg.

Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.

Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures.  More from Bloomberg.

Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim.  More from Courthouse News.

On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.

Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state.  More from Scotusblog.

Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention.  More from Bloomberg.

On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act.  The ruling will make it more difficult to contest state-imposed election regulations.  More from Scotusblog.

Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors.  More from Scotusblog.

On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win.  More from Bloomberg.

In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now.  See the piece at Law.com.

Federal Appellate Court News and Opinions:

This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional.  More from Law360.

Appellate Practice Tips and Pointers:

Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.

Carl Cecere started a thread on Monday discussing the value of Introductions and Summaries in appellate briefs, an all-too-often overlooked opportunity for good advocacy.

Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.

Appellate Jobs:

The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022.  Application information HERE.

July 2, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Sunday, June 20, 2021

Fulton v. City of Philadelphia: Chief Justice Roberts Issues Another Disappointing Decision

In Fulton v. City of Philadelphia, the United States Supreme Court confronted the question of whether the City of Philadelphia could deny a contract to a Catholic foster care agency (Catholic Social Services) because the agency refused to provide service to same-sex couples.[1] The city argued that the agency's policy violated the city’s anti-discrimination law, which prohibits discrimination based on, among other things sexual orientation.[2]

By way of background, in Employment Division v. Smith, the Court held that neutral laws of general applicability that incidentally burden religion do not violate the Free Exercise Clause of the First Amendment.[3] Writing on behalf of the majority, Justice Antonin Scalia relied in part on Reynolds v. United States to hold that the Free Exercise Clause does not permit religious organizations to receive exemptions from generally applicable laws.[4] Justice Scalia reasoned that to allow such exemptions “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."[5] Justice Scalia held that religious exemptions could be granted only when an alleged violation of religious liberty was coupled with a violation of another constitutional right.[6] For example, in Wisconsin v. Yoder, the Court held that the parents of an Amish child were exempt from a generally applicable law requiring all children to attend public school until the age of sixteen because the law infringed on both the parents’ religious liberty and the fundamental right to direct the upbringing of their children.[7]

The Court’s decision in Smith has proved quite controversial, as some argue that it is inconsistent with the original purpose of the Free Exercise Clause.[8] And Smith has been implicated in recent disputes involving the balance between accommodating individuals’ religious beliefs and protecting citizens against discrimination.  For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a cakeshop owner refused to design a custom wedding cake for a same-sex couple, arguing that doing so would violate his religious beliefs.[9] The State of Colorado argued that the cakeshop owner's refusal violated its generally applicable anti-discrimination law, which prohibited discrimination based on sexual orientation.[10]  The facts in Masterpiece Cakeshop arguably presented the Court with the issue of whether Smith should be overruled.

But the Court avoided the question.

Instead, it ruled on very narrow grounds, holding that the Colorado Civil Rights Commission had demonstrated hostility toward the cakeshop owner’s religion when addressing his claim.[11] As a result, Masterpiece Cakeshop resolved nothing. The decision provided no clarity or guidance to courts and citizens regarding the Free Exercise Clause. It was a missed opportunity.

Not surprisingly, three years later in Fulton, the same issue arose again when Philadelphia denied a contract to Catholic Social Services because it refused to offer services to same-sex couples. As in Masterpiece Cakeshop, the Court was faced with the question of whether Smith should be overruled.

Yet again, the Court avoided the question.

Instead, in an opinion by Chief Justice Roberts, the Court issued a very narrow decision in favor of Catholic Social Services, holding that Philadelphia’s anti-discrimination law was not generally applicable because the city retained the discretion to grant exemptions to the law.[12] This led to a narrow, unanimous ruling for Catholic Social Services. But again, the decision failed to resolve the underlying question of whether Smith should be overruled and avoided addressing how to balance an individual’s right to religious liberty against another individual’s right to be free from unlawful discrimination. The result is that one of the most sacrosanct constitutional rights – the free exercise of religion – is now marred in constitutional purgatory, with no clarification or guidance about the scope of this right and the limits on state power. 

Fulton was legal gymnastics at its finest. And politics at its worst.

Sadly, the decision in Fulton is yet another example of Chief Justice Roberts's disappointing jurisprudence.

To be clear, by all accounts Chief Justice Roberts is a brilliant and ethical jurist – and a great person. Roberts is deeply committed to preserving the Court’s institutional legitimacy and to avoiding the perception that politics and ideology motivate the Court’s decisions. To that end, Roberts strives to achieve consensus on the Court and avoid controversial 5-4 decisions. To reach consensus, Roberts seeks to decide each case on the narrowest ground possible, which often has the effect, as in Masterpiece Cakeshop and Fulton¸ of rarely addressing the fundamental constitutional issues that undergird many cases and, concomitantly, failing to clarify the law.

The ugly truth about this approach is that it causes precisely what Chief Justice Roberts hopes to avoid: it politicizes the Court, undermines its institutional legitimacy, and destabilizes the rule of law.  And it causes Roberts to become precisely what he disavows: a political actor.

As stated above, it is politics at its worst.

Unfortunately, even a cursory examination of Roberts’s jurisprudence in recent years reveals that his decisions often result from political calculations rather than principled constitutional considerations.

Indeed, Roberts’s decision in Fulton was eerily reminiscent of his decision in National Federation of Independent Investors v. Sebelius, where the primary issue confronting the Court was whether the Affordable Care Act violated the Commerce Clause.[13] Roberts agreed that the Act violated the Commerce Clause, yet after initially voting to invalidate the Act, Roberts reversed course and concluded that the Act was a proper exercise of Congress’s taxing power.[14] It was apparent that Roberts was trying to find a way – any way – to avoid issuing a decision that might compromise the Court’s legitimacy, lead to a divisive decision, and be perceived as political.

Yet, Roberts created precisely that result. The Court’s legitimacy was damaged because the decision was so obviously based on political calculations, not constitutional principles.

This is not the first time that Roberts has engaged in legal gymnastics that elevate politics over the rule of law and provide no clarity, guidance, stability, or predictability on important legal issues affecting civil rights and liberties. For example, in June Medical Services v. Russo, Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges.[15] Roberts argued that, based on the Court’s decision in Whole Women’s Health v. Hellerstadt, where it invalidated a nearly identical law in Texas (although Roberts dissented), principles of stare decisis required him to invalidate the Louisiana law.

But Roberts’s jurisprudence shows that he has an on-again, off-again relationship with stare decisis.  In Janus v. American Federation of State, County, and Municipal Employees, Council 31, which addressed a union’s ability to collect fees from non-union members, Roberts joined the majority in overruling Abood v. Detroit Board of Education, which had been valid law for over forty years.[16] And in Citizens United v. FEC, Roberts joined a 5-4 majority that invalidated a federal law restricting independent expenditures from corporations; in so holding, the Court overruled Austin v. Michigan Chamber of Commerce, which held that restrictions on corporate speech did not violate the First Amendment.[17] Thus, Roberts’s reliance on stare decisis in June Medical Services was about as disingenuous and manipulative as it gets. Simply put, when a concern for institutional legitimacy triumphs over the rule of law, the result is an unprincipled jurisprudence that at its core is political.

If Chief Justice Roberts values the Court’s institutional legitimacy, he should prioritize the rule of law and base his decisions on reasonable interpretations of the Constitution. He should stop avoiding the real issues that are presented in each case. He should make decisions based on what he believes, not on how others may react to a particular decision. In doing so, Roberts would demonstrate that he is faithful to the Constitution and the rule of law, and that his decisions are based on principle, not politics.

To date, sadly, Chief Justice Roberts has become the Court’s most political actor. And the Court is unquestionably a political institution.

 

[1]  No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)

[2] See id.

[3] 494 U.S. 872 (1990).

[4] See id.

[5] Id.

[6] See id.

[7] 406 U.S. 205 (1972).

[8] See Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Petitioners, available at: 20200602142513866_19-123 CCJ tsac.pdf (supremecourt.gov)

[9] 138 S. Ct. 1719 (2018)

[10] See id.

[11] See id.

[12] No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)

[13] 567 U.S. 519 (2012).

[14] See id.

[15] 2020 WL 3492640 (2020)

[16]  138 S. Ct. 2448.

[17]  558 U.S. 310 (2010).

June 20, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Sunday, May 23, 2021

The Supreme Court, Abortion, and the Future of Roe v. Wade

Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks.[1] This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.[2]

So, here we go again.

Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.

This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support.[3] In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.”[4] Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text.  Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.[5]

Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.”[6] The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.”[7] These scholars are correct – Roe was one of the worst decisions of the twentieth century.

Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse.[8] In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks.[9] In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother.[10] In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.[11]

Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.

But the states opposing abortion did.  Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.[12]

The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.

As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.  

Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.

Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.

That will end the inquiry and the uncertainty.

But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.

Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.

Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.

 

[1] Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).

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

[3] Id; 381 U.S. 479 (1965).

[4] Id. at 484.

[5] 410 U.S. 113.

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

[7] Id.

[8] 505 U.S. 833 (1992).

[9] Id.

[10] Id.

[11] Id.

[12]  136 S. Ct. 2292 (2016); 2020 WL 3492640.

May 23, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (2)

Sunday, May 16, 2021

Derek Chauvin's Conviction Should Be Overturned

On April 20, 2021, after a brief deliberation, a jury convicted former police officer Derek Chauvin for second-degree unintentional murder (i.e., felony murder), second-degree manslaughter, and third-degree murder in connection with George Floyd’s death.

Chauvin’s attorney, Eric Nelson, who has already moved for a new trial before Judge Peter Cahill, will certainly appeal Chauvin’s conviction. Although the likelihood of succeeding on appeal is relatively small, several issues in Chauvin’s case render the guilty verdict vulnerable to reversal.

1.    The jury deprived Chauvin of a fair trial

Chauvin’s defense team will likely argue that the conduct and composition of the jury deprived Chauvin of a fair trial. First, the defense will assert that the jury violated Chauvin’s Fifth Amendment rights. The Fifth Amendment provides, among other things, protection against self-incrimination. At a criminal trial, a defendant may invoke the right against self-incrimination and thus refuse to testify. Importantly, jurors may not infer guilt from a defendant’s silence; doing so is grounds for overturning a guilty verdict.

During the trial, Chauvin invoked his Fifth Amendment right and thus did not testify. Unfortunately, there is some evidence that at least one of the jurors construed that silence against Chauvin. Specifically, shortly after the verdict, Brandon Mitchell (Juror No. 52), spoke to the media and, after being asked whether Chauvin’s silence impacted the jury, stated as follows:

Yeah, definitely it [Chauvin's silence] did when we were in the deliberation room; you know, a few people wondered like they wanted to actually hear from [him]. They were curious on you know, just what his thoughts might have been throughout.  You know it probably was to his detriment that he didn’t take the stand ’cause people were curious on what his thoughts were throughout the entire incident.”[1]

At the very least, Mitchell's statement may cause Judge Cahill to question the jurors regarding the effect, if any, that Chauvin’s silence had on their deliberations.

Second, the defense will argue that the jury was impermissibly biased against Chauvin. Once again, Brandon Mitchell’s conduct provides a basis upon which to support this assertion. After the trial, a photograph emerged of Mitchell wearing a t-shirt that stated, “Get your knee off our necks,” which Mitchell allegedly wore at a Washington, D.C. rally commemorating Martin Luther King’s “I have a dream” speech.[2]

The photograph’s impact on appeal will depend primarily on whether Mitchell was truthful when answering the jury questionnaire during voir dire. Specifically, Mitchell was asked the following questions:

“Did you, or someone close to you, participate in any of the demonstrations or marches against police brutality that took place in Minneapolis after George Floyd’s death?” one question read, according to the newspaper.

 “Other than what you have already described above, have you, or anyone close to you, participated in protests about police use of force or police brutality?”[3]

Mitchell answered “no” to both questions.

At the very least, the photograph of Mitchell wearing a shirt stating, “Get your knee off our necks,” coupled with his “no” answer to the second question, supports a further inquiry by Judge Cahill into Mitchell's potential bias.

2.    Failure to sequester the jury

Chauvin’s defense team will certainly argue that the jury should have been sequestered from the beginning of the trial, not merely during deliberations. There may be some merit to this argument, given: (1) the pervasive media coverage in the months following Floyd’s death and particularly during the trial; (2) the statement by Maxine Waters, in which she stated that protesters should “get more confrontational” if a guilty verdict was not reached.[4] Indeed, Judge Cahill stated that Waters’ statement may lead to a reversal on appeal. Furthermore, Alan Dershowitz stated:

Well, first, what was done to George Floyd by officer Chauvin was inexcusable, morally, but the verdict is very questionable because of the outside influences of people like Al Sharpton and people like Maxine Waters,” … Their threats and intimidation and hanging the Sword of Damocles over the jury and basically saying, 'If you don’t convict on the murder charge and all the charges, the cities will burn, the country will be destroyed,' seeped into the jury room because the judge made a terrible mistake by not sequestering the jury. 

And a statement by alternate juror Lisa Christensen, although not necessarily relevant to the appeal, suggests that the pressure to reach a guilty verdict may have impacted the jury. When questioned about the possible social unrest that may result from the verdict, Christensen stated as follows:

There was a question on the questionnaire about it and I put I did not know. The reason, at that time, was I did not know what the outcome was going to be, so I felt like either way you are going to disappoint one group or the other. I did not want to go through rioting and destruction again and I was concerned about people coming to my house if they were not happy with the verdict.[5]

Coupled with Brandon Mitchell’s statement (and the photo), Christensen’s statement arguably supports the argument that the jury should have been sequestered.

3.    Failure to Change Venue

Chauvin’s defense will argue that Judge Cahill erred by failing to grant a change of venue. To begin with, the incessant media coverage in Minneapolis and elsewhere following Floyd’s tragic death, coupled with the widespread protests in Minneapolis, which universally condemned Chauvin’s actions (some of which turned violent), may support the argument that Judge Cahill should have granted the defense’s motion to change venue. However, the prosecution will argue that the media coverage and protests occurred throughout Minnesota and the United States, thus rendering it unlikely, if not impossible, that Chauvin would have received a fairer trial anywhere in Minnesota. The prosecution will probably succeed on this aspect of the venue issue.

That, however, does not end the inquiry. Shortly before jury selection, Minneapolis announced that it reached a settlement of twenty-seven million dollars with Floyd’s family in connection with the family’s civil suit. The timing of this settlement is certainly suspect and a legitimate question exists concerning whether the settlement affected the jurors' impartiality.  

4.    Insufficiency of evidence on one or more of the charges

The defense will likely argue that the evidence did not support a conviction for second-degree unintentional murder (felony murder) or third-degree murder. The third-degree murder conviction is problematic because Minnesota’s statute requires that an individual engage in conduct that is a threat to “others.” It is difficult to conceive of how Chauvin’s actions threatened anyone by Floyd, thus warranting a reversal of the conviction on this charge. As a practical matter, however, this will have no impact on the sentencing because the conviction for second-degree unintentional murder, which results in the most severe sentence, will likely be upheld, and because the sentences for each conviction will be imposed concurrently, not consecutively.

***

Ultimately, the vast majority of commentators and citizens viewed Chauvin’s actions as egregious and criminal. Moreover, the likelihood of overturning a conviction on appeal is small.

But in this case, the chances of success are higher. Based on Brandon Mitchell’s statements (and the photograph), the failure to sequester the jury despite the incessant and negative media coverage, and the twenty-seven million dollar settlement on the eve of jury selection, Chauvin’s defense team will have a strong argument to overturn the conviction.

And for the reasons stated, the conviction should be overturned.

Process matters – regardless of Chauvin’s egregious and deplorable conduct.

 

[1] Scott Cosenza, Did Floyd Jurors Violate Chauvin’s Fifth Amendment Rights? (April 29, 2021), available at: Did Floyd Jurors Violate Chauvin's 5th Amend Rights? - Liberty Nation

[2] See Paulina Villegas, Photo of Chauvin Juror Wearing BLM T-Shirt at March Raises Questions of Impartiality, Experts Say (May 3, 2021), available at: Brandon Mitchell, juror in Derek Chauvin’s murder trial, faces allegations of prejudice after photo surfaces - The Washington Post

[3] Jonathan Turley, Juror No. 52: Does Chauvin Have a New Challenge Over Juror Brandon Mitchell? (May 4, 2021), available at: Juror 52: Does Chauvin Have A New Challenge Over Juror Brandon Mitchell? – JONATHAN TURLEY

[4] See Chandelis Duster, Waters Calls for Protestors to ‘Get More Confrontational’ If No Guilty Verdict Is Reached in Chauvin Trial (April 19, 2021), available at: Maxine Waters calls for protesters to 'get more confrontational' if no guilty verdict is reached in Derek Chauvin trial - CNNPolitics

[5] Jordan Davidson, Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting and Destruction’ and ‘People Coming to My House’ to Protest Verdict (April 23, 2001), available at: Stunning Chauvin Juror Confession: I Was Worried About ‘Rioting And Destruction’ (thefederalist.com)

May 16, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession | Permalink | Comments (5)