Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)
Saturday, January 16, 2021
It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.
Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong. Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.
The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.
The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed. Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen. Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants. And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.
However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed. Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.
Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months. In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.
After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.
Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”
 408 U.S. 238 (1972).
 543 U.S. 551 (2005).
 536 U.S. 304 (2002).
 572 U.S. 701 (2014).
 576 U.S. , 135 S. Ct. 2726 (Breyer, J., dissenting).
 See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog
 In re Gault, 387 U.S. 1 (1967) (internal citation omitted).
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- This week, the Supreme Court allowed the current administration to carry out three final federal executions, including the first woman to be executed by the federal government since 1953. This administration resumed federal executions after seventeen years without one and has executed thirteen people since July. Justice Sotomayor’s dissent in US v. Higgs, the final case, begins:
After seventeen years without a single federal execution, the Government has executed twelve people since July. They are Daniel Lee, Wesley Purkey, Dustin Honken, Lezmond Mitchell, Keith Nelson, William LeCroy Jr., Christopher Vialva, Orlando Hall, Brandon Bernard, Alfred Bourgeois, Lisa Montgomery, and, just last night, Corey Johnson. Today, Dustin Higgs will become the thirteenth. To put that in historical context, the Federal Government will have executed more than three times as many people in the last six months than it had in the previous six decades.
- In the first abortion decision since Justice Barrett joined the court, the Supreme Court reinstated a requirement that women appear in person to pick up the pill required for medication abortions. The FDA rule had been waived during the pandemic, allowing the medicine to be distributed via mail. See the opinion and reports from The Associated Press, Bloomberg News, and Politico.
- Taylor Swift became the subject of oral argument this week when the Justices discussed the singer’s request for nominal damages in a sexual assault suit. The discussion occurred during oral argument in Uzuegbunam v. Preczewski, a case asking whether students may sue their college for First Amendment Violations and seek nominal damages. See reports in The New York Times and The Washington Post.
Federal Appellate Court Opinions and News
The Ninth Circuit will allow a SWAT officer’s First Amendment suit against the Las Vegas Police Department (LVPD) to proceed after he was penalized for a Facebook post. The LVPD claimed that the post incited violence but the court stated that the post “could be objectively interpreted as a provocative political statement against police officers being shot in the line of duty.” The decision comes in the wake of the violence at the US Capitol and amid debate about the line between free speech and inciting violence. See opinion and report in the San Francisco Chronicle.
- The Third Circuit ruled that Philadelphia’s plan to open the nation’s first safe-injection site would violate federal law. The ruling is another barrier for the nonprofit Safehouse, which hoped to open the site to combat fatal drug overdoses. The site would have offered support to drug users, including providing intervention for overdoses. The court ruled that the site would violate a federal law making it illegal to knowingly host illicit drug use and drug related activity. According to the court, only a change in federal law would sanction the site. “[Safehouse’s] motives are admirable. But Congress has made it a crime to open a property to others to use drugs.” See the order and reports from The Wall Street Journal and The Associated Press.
State Appellate Court Opinions and News
The Colorado Supreme Court updated its common-law marriage standard, which was established in 1987, to better account for same-sex couples. The new standard follows from three rulings and creates a more flexible and gender-neutral test that looks only to whether the couple mutually intended to enter a marital relationship and whether the couple’s subsequent conduct supported that decision. See the rulings here, here, and here and a report in The Denver Post.
Sunday, November 29, 2020
In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.
The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices. Second, the government may not enact laws that impose a substantial burden on religious practices. Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply. Fourth, the government may not coerce individuals into acting contrary to their religious beliefs. Fifth, the government may not target or discriminate against religion generally or specific religious denominations.
In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:
Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.
Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.
Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.
In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.
In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause. To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.
Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people. Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.” Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:
[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:
People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.
Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot. For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.
Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses. In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures. Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,”  Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.
1. Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends
Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:
What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.
In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:
In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.
In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”
Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:
To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.
The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.
2. Chief Justice Roberts is arguably prioritizing politics over the rule of law
Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.
Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”
Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.
Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.
3. Ideology continues to influence the justices’ decisions
It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.
Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.
These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.
 592 U.S. (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).
 See Reynolds v. United States, 98 U.S. 145 (1878)
 See Wisconsin v. Yoder, 406 U.S. 205 (1972).
 See United States v. Ballard, 322 U.S. 78 (1044).
 See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
 See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).
 See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday
 592 U.S. (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).
 See id.
 See id.
 See id.
 Id. (Gorsuch, J., concurring)
 See id.
 See id. (Justice Breyer also dissented on similar grounds).
 See id. (Sotomayor, J., dissenting).
 See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S. , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. , available at: 19a1070_08l1.pdf (supremecourt.gov)
 Id. (Sotomayor, J., dissenting).
 Id. (Gorsuch, J. concurring).
 Id. (Roberts, J., concurring).
 Id. (Gorsuch, J., concurring).
Sunday, November 15, 2020
Any ranking system contains elements of subjectivity and arbitrariness, and this is unquestionably true when attempting to rank the current justices on the United States Supreme Court. And it should go without saying that every justice on the Court is an incredibly accomplished and well-respected jurist, and among the brightest minds in the legal profession.
Notwithstanding, based on each justice’s jurisprudence, one can gain a general sense of their effectiveness, influence, and impact on the Court and the rule of law. The following rankings, which are admittedly subjective and unscientific, are predicated on the following factors: (1) the influence, if any, of ideology on a justice’s decision-making; (2) the quality of a justice’s written opinions and legal reasoning; (3) the extent to which a justice’s outcomes reflect a reasonable interpretation of a constitutional provision, statute, or regulation and thus preserve the rule of law; and (4) the degree to which a justice considers the pragmatic consequences of a decision, particularly as it affects the Court’s institutional legitimacy.
1. Elena Kagan
By all accounts, Justice Kagan is a brilliant legal mind. Justice Kagan possesses outstanding writing skills and the ability to communicate effectively and persuasively with lawyers and laypersons. Additionally, Justice Kagan’s decisions eschew ideology and reflect a balanced approach to constitutional and statutory interpretation, and fidelity to the rule of law.
One of Justice Kagan’s best opinions was a dissent in Rucho v. Common Cause, where Justice Kagan passionately and persuasively argued that partisan gerrymandering was anathema to the Constitution and democracy, and squarely within the Court’s adjudicatory powers. Regarding the partisan gerrymanders in Rucho, Justice Kagan emphasized that they “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people.”
2. Neil Gorsuch
Justice Gorsuch has consistently demonstrated that he is a principled originalist. Originalism states that judges should interpret the Constitution’s text based on what the drafters of a particular provision understood those words to mean at the time such provision was ratified. In his opinions, Justice Gorsuch consistently places the rule of law above subjective values or personal policy predilections. Indeed, Justice Gorsuch’s opinions are very well-reasoned and grounded in a faithful interpretation of a constitutional or statutory text. Put simply, Justice Gorsuch is not guided by ideology and his jurisprudence reflects humility and respect for the democratic process.
3. John Roberts
Chief Justice John Roberts is among the most brilliant lawyers of his generation – and for good reason. Roberts’s intellect, advocacy skills, and writing ability are second to none. Additionally, Chief Justice Roberts is, by all accounts, a humble jurist who respects the rule of law, the separation of powers, federalism, and democratic choice. Furthermore, Chief Justice Roberts strives to achieve consensus among the justices (thus avoiding, to the extent possible, divisive 5-4 opinions) and is committed to preserving the Court’s institutional legitimacy.
Importantly, however, the desire to preserve the Court’s legitimacy and status as an apolitical branch has led, perhaps inadvertently, to decisions that invite precisely the criticisms Roberts seeks to avoid. For example, in National Federation of Independent Investors v. Sebelius, Roberts wrote for a 5-4 majority, in which the Court held that the Affordable Care Act’s individual mandate passed constitutional muster under the Taxing and Spending Clause, despite substantial evidence that the mandate was an unconstitutional penalty. Roberts’s decision, which surprised many legal scholars, was seen by some as an attempt to avoid the negative political consequences that a ruling invalidating the Affordable Care Act would engender. However, Roberts’s decisions in McCutcheon v. FEC, in which the Court invalidated a limit on contributions that an individual could make to a national party over a two-year period, and in Shelby County v. Holder, where the Court invalidated Sections 4(b) and 5 of the Civil Rights Act (despite a Senate vote of 98-0 to reauthorize these sections) engendered significant criticism and the very charges of illegitimacy that Roberts ostensibly seeks to avoid.
Put simply, an overarching focus on preserving the Court’s institutional legitimacy invariably involves precisely the element of subjectivity (and, to an extent, arbitrariness), that is anathema to legitimacy itself.
4. Stephen Breyer
Justice Breyer is a thoughtful and very intelligent jurist who balances fidelity to the rule of law with a consideration of the pragmatic consequences of decisions. And Breyer’s jurisprudence does not suggest that he is guided by subjective values or ideological considerations. Instead, Justice Breyer's decisions are almost always well-reasoned and balanced, regardless of whether one agrees with the outcome of such decisions. For example, in Whole Women’s Health v. Hellerstadt, Breyer wrote for a 5-3 majority that invalidated a requirement in Texas that abortion providers obtain hospital admitting privileges.[4}
The decision in Whole Women's Health was based on a reasonable review of the record and of precedent regarding abortion rights.
One criticism of Justice Breyer, however, is that he subscribes to a method of constitutional interpretation known as “living constitutionalism,” which states that the Constitution’s meaning evolves over time and that the meaning of a particular constitutional provision should reflect contemporary societal values. The problem with this approach is that it vests nine unelected and life-tenured judges with the ability to identify – for the entire nation – prevailing societal values and to impose those values through decisions that often disregard or manipulate the Constitution’s text.
5. Clarence Thomas
Justice Thomas is a faithful adherent to originalism. The principle undergirding originalism is that judges do not have the right to unilaterally disregard, manipulate, or change the Constitution’s meaning based on their subjective values or policy predilections. Doing so would be fundamentally anti-democratic and give judges the unfettered right to undermine the democratic process and identify unenumerated rights based on nothing more than their personal values. Justice Thomas consistently adheres to this philosophy.
However, Justice Thomas can sometimes be far too formalistic and eschew any consideration whatsoever of the pragmatic consequences of his decisions. This is not necessarily a criticism, although originalism does not – and should not – prohibit judges from basing decisions on pragmatic considerations where such decisions would be consistent with a reasonable interpretation of the Constitution’s text. For example, Justice Thomas has repeatedly advocated for reversing Roe v. Wade, where the Court held that the right to privacy under the Fourteenth Amendment protects a woman’s right to terminate a pregnancy under certain circumstances. Although the decision in Roe, particularly the reasoning, was arguably one of the worst in the last fifty years, the reliance that women have placed on Roe during this time, and the political and social divisiveness that would accompany overturning Roe, counsel in favor of adhering to Roe’s central holding. Thus, Thomas’s rather rigid position on Roe, and his overly formalistic legal analysis in other cases, leaves far too little room for pragmatic considerations.
6. Sonia Sotomayor
Justice Sotomayor is an incredibly accomplished jurist who has authored several passionate and well-reasoned dissents, particularly in the areas of abortion and affirmative action. And Justice Sotomayor’s personal story, in which her intellect and work ethic propelled her to Princeton University and Yale Law School, is truly inspiring.
However, in a number of decisions, Justice Sotomayor, whose jurisprudence reflects living constitutionalism, appears to be motivated more by ideology or policy preferences than a commitment to the rule of law. This is arguably evident in the Court’s affirmative action jurisprudence, such as in Schuette v. Coalition to Defend Affirmative Action, where Justice Sotomayor’s reasoning read more like a policy prescription than a legal opinion, and where Sotomayor ostensibly eschewed any workable legal standards for assessing the constitutionality of affirmative action policies. Regardless of one’s views on affirmative action, one gets the sense that Justice Sotomayor will, without exception, uphold any affirmative action policy irrespective of the merits of that policy. That approach is antithetical to the role of and limits on judicial decision-making.
7. Brett Kavanaugh
Justice Kavanaugh, a graduate of Yale Law School, had an extraordinarily impressive record as an attorney and a judge on the United States Court of Appeals for the District of Columbia Circuit where, by all accounts, Kavanaugh was a fair and principled judge.
Justice Kavanaugh’s ranking is not a reflection of his jurisprudence. Rather, he has not been on the Court for a sufficient time to adequately assess his jurisprudence, judicial philosophy, and impact on the Court and the law.
8. Samuel Alito
Justice Alito is extremely intelligent, and a well-respected and accomplished jurist.
However, one gets the sense from both oral arguments and Justice Alito’s written opinions that his decisions are motivated in substantial part by ideological considerations and policy preferences. Indeed, on November 12, 2020, Justice Alito delivered a speech to the Federalist Society in which he criticized the Court’s free exercise jurisprudence, its decision in Obergefell v. Hodges (invalidating same-sex marriage bans), and the protections afforded to free speech.
Note: Amy Coney Barrett: Having been confirmed only a few weeks ago, Justice Barrett has not been on the Court for a sufficient time to justify including her in the ranking.
 139 S. Ct. 2484 (2019) (Kagan, J., dissenting).
 567 U.S. 519 (2012).
 572 U.S. 185; 570 U.S. 529 (2013).
 136 S. Ct. 2292 (2016).
 Of course, originalism, like living constitutionalism, can also be used as a tool to impose a judge’s subjective values and policy preferences. However, principled originalists eschew such an approach and predicate their decisions on ascribing the meaning that the drafters intended at the time a provision was ratified.
 410 U.S. 133 (1973).
 572 U.S. 291 (2012).
 Sydney Bauer, Justice Alito Takes Aim at Gay Marriage in ‘Politically Charged Speech,’ (Nov. 13, 2020), available at: https://www.nbcnews.com/feature/nbc-out/justice-alito-takes-aim-gay-marriage-politically-charged-speech-n1247772
November 15, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Tuesday, November 10, 2020
We tend to think that the most recent election is uniquely important, and any irregularity is quickly magnified. A short history of just a few of the many contested U.S. Presidential elections shows that elections are often messy, and that legal intervention of some sort (either by a change in the law or by court ruling) has frequently been the remedy. That review may also give us a glimpse of what to expect this year.
The first major election dispute was in 1800, when the Jefferson ran against Adams. Jefferson's party, the Democratic Republicans, handily won, and the party electors dutifully wrote down the names of both the presidential candidate (Jefferson) and the vice-presidential candidate (Burr). This resulted in a tie. The vote thus went to the House, which was controlled by the Federalists, and in which Burr refused to concede his position to Jefferson, thinking that the Federalists might prefer him and he could thus win the presidency. In the end, the House chose Jefferson, and, eventually, the 12th Amendment was passed to prevent a repeat tie.
In 1836, there were four candidates for president. Jackson won the popular vote, but with no majority in electoral votes, the election once again went to the House. The House dropped the fourth candidate with the lowest votes (Clay), and Adams managed to capture most of those elector's votes, possibly because he promised Clay a cabinet position. As a result, for the first time, the person who won the popular vote did not win the presidency.
In 1876, Tilden ran against Hayes, and Tilden won the popular vote. However, when the electoral college met, Tilden came up one vote short of winning, with 20 electoral votes being disputed by their states (each party claiming the votes for themselves). For the first time, the Supreme Court had a role in deciding who won - a commission was formed with 5 senators, 5 congressmen, and 5 Supreme Court Justices. The commission was supposed to be equally split, 7-7, between the parties, with one independent being chosen by the Justices, in this case, Justice Davis. When Davis was selected to serve as a Senator, he was replaced by a Justice Bradley, who, it turned out, voted entirely with the Republicans, and the commission decided 8-7 to award Hayes all of the votes. After numerous compromises (including, allegedly, the Compromise of 1877, ending Reconstruction) and bargains between the political parties, Hayes was sworn in accord with the commission's decision.
In 2000, Al Gore won the popular election against George W. Bush by .5%. However, the electoral vote remained unknown until Florida completed its vote count on November 8, resulting in a win by George W. Bush by just over 300 votes (later rising to 900 when mail-in ballots were counted), giving him 271 electoral votes. Issues with "hanging chads" and purported fraud resulted in a call for a hand recount in some counties. That recount resulted in a 537 vote win for Bush, certified on November 26.
Gore challenged the vote. He lost his challenge in a lower state court, but won in the Florida Supreme Court, which issued an order on December 8 requiring a recount of the 70,000 votes recorded as "undervotes" by the voting machines. The next day, the U.S. Supreme Court issued an order staying the Florida Supreme Court's order, treating the application for the stay as a writ of certioari, granting the writ, and setting the case for a 1 1/2 hour oral argument on December 11.
On December 12, the Court issued a 7-2 per curiam decision ordering that the recount stop, based on equal protection grounds, given the different standards of counting that were being used in different counties. Justices Breyer and Souter recommended that a statewide recount be held prior to the December 18th meeting of electors, but because the State of Florida had stated that it intended to meet the discretionary December 12 “safe harbor” deadline set by U.S. Election Code (3 U.S.C. §5), the court ruled 5-4 to reject that remedy. In the end, there was no time left to do anything but certify the original vote.
As you can see, the 2000 election was the first time the Supreme Court directly intervened in a State's efforts to decide an election recount. The division reflected in the court's opinions showed a tensions between two goals - ensuring a proper process to determine legal votes, and making sure that every vote is counted. Scalia's initial concurrence to the stay summarized the issue nicely from his perspective: each recount was alleged to physically degrade the paper ballots, so if the process being utilized was incorrect, counting the ballots first might actually mean that counting the ballots under a proper process, later, might become impossible.
It seems likely that there will be recounts in the 2020 election. In some states, those recounts will occur statewide. In others, they may be called on a district-by-district basis.
Political compromise, the main method in determining earlier close elections, seems unlikely. Court challenges, however, are already in the works. Methodologies for recounts have been largely standardized, so any machine recount should be done fairly quickly and with fewer potential challenges (hand recounts may be a different matter). This is important, because Bush v. Gore gave great weight to the State of Florida's election code and deadlines. Unlike the Franken-Coleman senate-race recount and court challenge, which took almost nine months, presidential recount challenges are very time sensitive. Any challenges to the recounts because of election fraud are thus also likely going to have to be decided within this narrow timeframe.
Already, though, Trump's legal teams are making equal-protection arguments, showing that they are also closely reading the Bush v. Gore playbook. There are claims that mail-in and in-person ballots are treated differently. There are suggestions that count observations are also done differently in different districts. However, to date, none of these allegations show as concrete a difference as the way those "hanging chads" or "dimpled chads" were being counted in each county in Florida. And the ticking clock for election deadlines means that any challenge will need to be equally clear if it has any hopes of resolution in time.
(image credit - Thomas Nast, Harper's Weekly, February 17, 1877, commenting on the compromise of 1877 that eventually resolved the 1876 election, Library of Congress Prints and Photographs Division, public domain)
Sunday, November 1, 2020
In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance. These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.
In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:
If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.
But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.
1. Require a 6-3 supermajority to affirm or reverse lower court decisions
Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.
Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.
2. Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.
In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause. Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto. Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?
Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut). Instead, it should defer to the coordinate branches – and to democratic choice.
3. Allow the Supreme Court to issue advisory opinions
The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.
Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights. And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.
Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.
 Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at: https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.
 567 U.S. 519 (2012).
 524 U.S. 417 (1998).
 381 U.S. 479 (1965).
November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Sunday, October 18, 2020
Amy Coney Barrett will almost certainly be confirmed to the United States Supreme Court – and deservedly so. Judge Barrett is an extraordinary legal scholar and judge, and numerous former colleagues and students have emphasized that she is a person of outstanding character, integrity, and compassion.
Additionally, Judge Barrett is an originalist, which is a theory of constitutional interpretation that requires judges to interpret the Constitution’s words as they were understood by those who drafted its provisions. Yet, originalism has been criticized by many in the legal academy. For example, some scholars claim that originalism leads to unjust and often draconian results, and fails to account for societal changes that the Constitution’s drafters could not foresee. Some scholars also assert that the broad phrasing of many provisions in the Bill of Rights suggests that the Constitution’s drafters entrusted future generations with the authority to divine constitutional meaning based on contemporary societal attitudes. For these and other reasons, many scholars embrace “living constitutionalism,” which states that the Constitution is a “living document” and that judges have the power to create constitutional meaning based upon the evolving needs of contemporary society.
These assertions both misunderstand originalism and misrepresent living constitutionalism. The former is, when properly applied, intellectually honest and fundamentally democratic. The latter is neither. For the following reasons, originalism is, without a doubt, the most sensible and commonsense approach to constitutional interpretation.
Originalism does not lead to unjust outcomes. The notion that originalism leads to unjust outcomes is nonsense. This argument misunderstands both originalism and the nature of judging. First, judges should not – and usually do not – decide cases based on the outcome that a judge desires or the policy that a judge prefers. If judges predicated their decisions on subjective policy preferences – and manipulated or disregarded the Constitution’s text to achieve those preferences – democratic choice would be undermined in favor of nine unelected and life-tenured judges. In essence, originalists recognize that the process of judicial decision-making is critically important to ensure, among other things, individual liberty, de-centralization, bottom-up lawmaking, and the judiciary’s institutional legitimacy. Second, originalism does not lead to objectively unjust outcomes; rather, critics of originalism only object to outcomes with which they subjectively disagree. Of course, that is not a reason to criticize originalism. As Justice Neil Gorsuch explains:
Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?
Moreover, to the extent that an outcome is considered unjust, the remedy is to effectuate change by the people through the legislative process – or through a constitutional amendment.
Originalism is fundamentally democratic. Originalism restrains and limits the power of judges to change constitutional meaning. It requires judges to interpret the text honestly and in accordance with what the Constitution’s drafters understood the words to mean. In so doing, originalism promotes respect for the rule of law, prevents unelected judges from substituting their policy preferences for those of legislators and citizens, and preserves a constitutional structure predicated on federalism, separation of powers, and decentralization. As Judge Barrett stated during the hearings, constitutional law is not “the law according to Amy,” but the law as enacted by the people. And contrary to some scholars’ contentions, originalism is not a vehicle by which conservative justices seek to reach conservative results. As Justice Gorsuch explains:
[S]ome suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment).
The alternative – living constitutionalism – is fundamentally anti-democratic. As stated above, living constitutionalists believe that the Constitution is a “living document,” and that judges have the power to create constitutional meaning based upon evolving societal attitudes. The problem with living constitutionalism is that it enables judges to ignore or manipulate the Constitution’s text to achieve preferred policy outcomes. In so doing, living constitutionalism provides unelected judges with the power to decide issues that should be resolved through the democratic process (e.g., issues on which the Constitution is silent or ambiguous), and thus deprives citizens of the power to effectuate change democratically. As Justice Gorsuch stated:
I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
Indeed, the anti-democratic and deleterious nature of living constitutionalism was on full display in Griswold v. Connecticut, where the Court invalidated an admittedly silly law banning contraception. The Court in Griswold acknowledged that the Constitution’s text, particularly the Fourteenth Amendment, did not provide a basis upon which to invalidate the law. However, the Court’s majority remained undeterred and decided to create an unenumerated right out of thin air. Specifically, the Court held that “[s]pecific guarantees in the Bill of Rights have penumbras … formed by emanations from those guarantees that give them life and substance.” In so holding, the Court concluded that a judicially-created, non-textual ‘right to privacy,’ which was implied from the judicially-created, invisible penumbras, supported invalidation of the statute. And in Roe v. Wade, the Court relied upon these very penumbras to hold that the Fourteenth Amendment’s Due Process Clause, which was originally designed only to ensure that life, liberty, and property could not be deprived without due process of law, supported a right to abortion before viability. To be sure, I support abortion rights. But I could never support the reasoning in Roe. It is constitutionally indefensible.
Make no mistake: living constitutionalism is not the knight in shining armor that some would have us believe. In fact, it has led to some of the worst decisions in the history of American constitutional law. As Justice Gorsuch explains:
Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.
Indeed, Justice Gorsuch highlights the real and substantial harms that living constitutionalism can cause:
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?
Put simply, “the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.” In short, living constitutionalism is not a legitimate theory of constitutional interpretation.
Ultimately, Amy Coney Barrett will be confirmed because she is a brilliant jurist, a person of the highest character and integrity, and a judge who recognizes that “the law of Amy” should never be substituted for the law of the people. Originalists also recognize that – and originalism is, as Justice Gorsuch stated, “the best approach to the Constitution.”
 Justice Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
 381 U.S. 479.
 Id. at 484 (emphasis added).
 410 U.S. 113 (1973).
 Gorsuch, supra note 1, available at: available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
Sunday, October 11, 2020
On the eve of Amy Coney Barrett’s confirmation hearings, members of the Republican and Democratic parties are preparing for what will likely be a difficult and highly partisan hearing. Republicans on the judiciary committee will likely contend that Judge Barrett’s qualifications, reputation, and character overwhelmingly support her confirmation. Democrats will likely contend that confirming Judge Barrett less than a month before the Presidential election is inappropriate, particularly given the Republicans’ refusal to hold hearings for Merrick Garland in the months preceding the 2016 election. Regardless of whether Judge Barrett is confirmed (the odds are solidly in her favor), few can doubt that the hearings will be contentious and reflect the partisanship and divisiveness that currently pervades the political arena. The consequences will not be insubstantial; rather, Judge Barrett’s hearing, like the hearing of then-Judge Brett Kavanaugh, will underscore how political the confirmation process – and arguably the Court itself – has become. And it will potentially undermine the public’s confidence in the Court and the rule of law.
To make matters worse, some members of the Democratic party have threatened to “pack the court” with additional (and arguably liberal) justices to counter the solidly conservative majority that Judge Barrett’s confirmation would likely create. But packing the Court will make the problem worse, not better. It would be predicated on the assumption that a President’s – and a justice’s – perceived ideology and policy predilections will lead to outcomes that one party deems politically desirable. And if the public perceived as such, the Court would become more politicized, the rule of law more trivialized, and the legitimacy of the Court’s decisions minimized.
So how can we preserve the rule of law, maintain the Court’s independence, and ensure confidence in the Court’s decision-making process? Not through a contentious and partisan confirmation hearing. Not by packing the Court.
Instead, require a supermajority. Specifically, require that to reverse or affirm a lower court decision (and, of course, change the law), six, not five votes, are required.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. First, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues controversial decisions.
Second, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would be minimized.
Third, a six-vote majority requirement would likely affect the process by which the Court grants certiorari. The Court would be less likely to accept cases -- particularly those involving divisive social and political issues -- if the justices knew that there was little, if any, likelihood of obtaining a six-vote majority. The effect would be that many decisions concerning divisive policy issues would be resolved through the democratic process, not by nine unelected judges with life tenure.
Fourth, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. This is a good thing; after all, the Court’s decision in Roe. v. Wade, which was indefensible as a matter of constitutional law, has engendered so much backlash that the right to abortion will continue to be litigated for the foreseeable future.
Fifth, a six-member majority requirement would de-politicize the Court and the process by which justices are confirmed, preserve the Court’s independence, and protect the Court’s legitimacy. Simply put, packing the Court isn’t the answer. Requirement a six-vote majority is – and should be considered seriously.
Sunday, October 4, 2020
On September 18, 2020, Justice Ruth Bader Ginsburg unexpectedly died. Undoubtedly, Justice Ginsburg was a brilliant jurist and one of the most influential legal thinkers in recent history. After a period of mourning in honor of Justice Ginsburg, President Donald Trump nominated Judge Amy Coney Barrett to serve as an Associate Justice on the United States Supreme Court. Predictably, some senators vowed to oppose Judge Barrett’s confirmation to the Court, citing both the timing of the nomination and the belief that Judge Barrett would reach decisions that would eviscerate abortion rights and invalidate the Affordable Care Act. In fact, three senators announced that they would not even meet with Judge Barrett before the confirmation hearings begin.
A review of the reasons offered in opposition to Judge Barrett’s confirmation, and an analysis of Judge Barrett’s background and experience, strongly suggests that Judge Barrett will – and should – be confirmed.
To begin with, Judge Barrett’s credentials are impeccable. A graduate of Notre Dame Law School – and an executive editor on the Notre Dame Law Review – Barrett clerked for Judge Laurence Silberman of the United States District Court for the District of Columbia and, thereafter, for former Justice Antonin Scalia at the United States Supreme Court. Thereafter, Judge Barrett joined Miller, Cassidy, Larroca & Lewin, a prestigious Washington, D.C. firm before embarking on a career in academia and, ultimately, being confirmed as a judge on the Seventh Circuit Court of Appeals.
Scholars of all political persuasions have offered effusive praise for Justice Barrett’s intellect and legal ability. As former colleague and Notre Dame law professor O. Carter Snead states:
She has an incandescent mind that has won the admiration of colleagues across the ideological spectrum. Harvard law professor Noah Feldman, a respected liberal legal commentator who, like Barrett, was a Supreme Court clerk during the October 1998 term, has observed that Barrett may well have been the smartest person in that year’s pool of top young legal talent. ‘Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities,’ he wrote in 2018, ‘going to lose. Badly.’ Barrett has confirmed her brilliance many times over as both a scholar and a teacher, for which she has been recognized three times by Notre Dame law students as professor of the year.
Notre Dame law professor Daniel Kelly echoed these sentiments, calling Judge Barrett “absolutely brilliant," and “one of the warmest open-minded people that anybody could meet.”
Furthermore, Judge Barrett is a jurist – and person – of great character and integrity. As Professor Snead explains, Judge Barrett’s “commitment to treating others with respect grows directly out of her religious convictions,” and “Barrett’s love of neighbor goes beyond merely treating others with dignity.” In fact, “[i]n all the time I have known her, I have never once seen Barrett place her needs above those of others.”
Additionally, neither ideology nor policy predilections appear to influence Judge Barrett’s jurisprudence. As Professor Snead explains, Judge Barrett “genuinely seeks to understand others’ arguments and does not regard them as mere obstacles to be overcome on the way to reaching a preferred conclusion.” To be sure, Judge Barrett is “not afraid to change her own mind in the search for the truth,” and “open-mindedness is exactly what we want of our judges,” particularly on the U.S. Supreme Court. In fact, one of Judge Barrett’s former colleagues – and a former clerk to Justice Ginsburg – stated that Judge Barrett “is ‘not at all ideological’ and believes that she will ‘try as hard as anyone can to bracket the views she has as she decides cases.’”
For these and other reasons, Judge Barrett is admired and respected by her peers and former students – regardless of political persuasion. John Garvey, President of Catholic University and one of Judge Barrett’s former professors, stated that “Amy Coney is the best student I ever had.” While a professor at Notre Dame Law School, Judge Barrett was voted Teacher of the Year three times. Most importantly, Judge Barrett is a good person who has impacted meaningfully the lives of so many. Three of Judge Barrett’s former students state as follows:
Amy Coney Barrett is a woman of both profound intellect and depth of heart. We are better women, friends, and lawyers for having known and learned from her. She has enriched the lives of all who have come to know her at Notre Dame Law School, and we can only hope that the entire country also will be given the benefit of her example and service.
Indeed, as a group of her former students stated, “[w]hile we hold a variety of views regarding how best to interpret statutes and the Constitution, we all agree on this: The nation could not ask for a more qualified candidate than the professor we have come to know and revere.”
Of course, some legal scholars will oppose Judge Barrett’s confirmation and her confirmation hearing before the Senate Judiciary will almost certainly be contentious. Those opposing Judge Barrett’s confirmation will likely argue that Judge Barrett will fortify a conservative majority on the Court, vote to overturn Roe v. Wade, and invalidate the Affordable Care Act. Such concerns are purely speculative; as history reveals, lawmakers cannot know with any degree of confidence how a nominee will rule in a particular case. For example, Justices David Souter, John Paul Stevens, and John Roberts have reached decisions in numerous cases that defy their perceived ideological dispositions. Furthermore, disagreement with (or, in some cases, disdain for) a nominee’s political beliefs is not the constitutional standard upon which nominees should be evaluated. Such an argument shows no regard whatsoever for or faith in the rule of law and unnecessarily politicizes both the confirmation process and the Court. Put simply, it’s not enough to reject a nominee because you disagree with their political views; in fact, it’s the Senate’s job to confirm a nominee regardless of those views. And the fact that Judge Barrett recognizes that “judges are not policymakers” is a positive, not negative, characteristic.
Others may argue, as Senator Diane Feinstein did during Judge Barrett’s confirmation hearing for a vacant seat on the Seventh Circuit, that Judge Barrett’s religious beliefs suggest that her ideology will influence her decisions. However, concerns about Judge Barrett’s religion or religious beliefs should be entirely irrelevant. Article VI, Clause Three of the Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Even living constitutionalists could not disagree that Article’ VII’s meaning: you cannot disqualify a judge based on their religious beliefs or affiliations. Also, to look unfavorably upon a nominee because of their religious belief is plain wrong and reflects precisely the type of bias and prejudice that all reasonable people should condemn.
Some senators will also likely argue that Judge Barrett’s interpretive philosophy – originalism – will lead to unjust and inequitable outcomes, and cause Judge Barrett to disregard principles of stare decisis when precedents conflict with the Constitution's original meaning. This concern, again, lacks merit. Originalism does not require judges to overturn precedent that violates originalism’s interpretive philosophy. Furthermore, based on Judge Barrett’s respect for the rule of law and the stability it provides, it is highly likely that pragmatic considerations would influence Judge Barrett’s decision-making process. And by all indications, Judge Barrett would do so in an honest and principled, not partisan and political manner. Moreover, outcome-based objections ignore the complexity of the judicial decision-making process, disregard the seriousness with which the justices take their responsibility to be fair and impartial, and serve to politicize the confirmation process in a manner that threatens the Court’s institutional legitimacy.
Additionally, many Senators will almost certainly object to Judge Barrett’s nomination on the ground that no nominee should be confirmed during an election year – a position that the Republican party embraced to block the nomination of Judge Merrick Garland. This fact should not preclude her confirmation. Since 1900, six justices have been confirmed during election years. And sufficient time exists to confirm Judge Barrett; Justice Ginsburg, for example, was confirmed forty-two days after her nomination, and former Justice Sandra Day O’Connor was confirmed thirty-three days after her nomination. Of course, the Republicans’ refusal to hold hearings for Merrick Garland understandably angered Democrats and exposes Republicans to charges of hypocrisy in seeking to confirm Judge Barrett on the eve of a presidential election. But at some point, the partisanship and polarization that has characterized recent confirmation hearings must stop. In 1986, Justice Antonin Scalia was confirmed by a vote of 98-0. In 1993, Justice Ginsburg was confirmed by a vote of 96-3. In 2009, Justice Sotomayor was confirmed by a vote of 68-31. Judge Barrett should be confirmed too.
Put simply, Judge Barrett has impeccable credentials and is a thoughtful and conscientious jurist. Most importantly, as her former colleagues and students attest, Judge Barrett is a kind, humble, and caring person. As Professor Snead stated, “[a]t a time when there is so much to worry about in our troubled nation, having a Supreme Court justice who brings such honesty and integrity to her work should be the least of our fears.”
 See Ana De Liz, Which Democrats are Meeting With Amy Coney Barrett, and Which Are Refusing (Sep. 29, 2020), available at: https://www.newsweek.com/which-democrats-are-meeting-amy-coney-barrett-which-are-refusing-1534955
 See Zachary Evans, Several Senate Dems Refuse to Met With Barrett, Come Out Against Confirmation (September 29, 2020), available at: https://www.nationalreview.com/news/several-senate-dems-refuse-to-meet-with-barrett-come-out-against-confirmation/
 See Biography: Amy Coney Barrett, available at: https://www.biography.com/law-figure/amy-coney-barrett
 O. Carter Snead, I’ve Known Amy Coney Barrett for 15 years. Liberals Have Nothing to Fear (Sept. 26, 2020), available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
 WIBC, Notre Dame Colleagues Call Amy Coney Barrett ‘Brilliant, Honest, and Sincere’ (Sept. 25, 2020), available at: https://www.wibc.com/news/local-indiana/notre-dame-colleagues-call-amy-coney-barrett-brilliant-honest-and-sincere/
 Snead, supra note 4, available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
 Laura E. Wolk, Megan L. McKeown, Alyson M. Cox, Amy Coney Barrett Was Our Professor. She’ll Serve America As Well As She Served Her Students (Sept. 27, 2020), available at: https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/
 Christian Sheckler, Notre Dame Profs Push Back On Amy Coney Barrett Portrayals: Not Just an ‘Ideological Category,’ (Sept. 26, 2020), available at: https://www.usatoday.com/story/news/politics/2020/09/26/amy-coney-barrett-notre-dame-professors-push-back-ideological-portrayals/3546388001/
 Wolk, et al., supra note 10, available at: https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/
 Supreme Court Nominee Amy Coney Barrett, ‘Judges Are Not Policymakers,” available at: https://www.whitehouse.gov/articles/supreme-court-nominee-amy-coney-barrett-judges-not-policymakers/
 See New York Times, The Dogma Lives Loudly Within You Sept. 26, 2020), available at: https://www.nytimes.com/2020/09/26/us/politics/the-dogma-lives-loudly-within-you-revisiting-barretts-confirmation-hearing.html
 U.S. Const., Art. VI, Cl. 3.
 See Zack Budryk, 22 GOP Attorneys General Urge Congress to Confirm Barrett As Supreme Court Justice (Oct. 1, 2020), available at: https://thehill.com/homenews/senate/519130-22-gop-attorneys-general-urge-congress-to-confirm-barrett-as-supreme-court
 See id.
 See Dana D. Kelly, Scotus Scores (July 6, 2018), available at: https://www.arkansasonline.com/news/2018/jul/06/scotus-scores-20180706/
 See Linda P. Campbell, Ginsburg Confirmed to Court on 96-3 Vote (Aug. 4, 1993), available at: https://www.chicagotribune.com/news/ct-xpm-1993-08-04-9308040122-story.html
 See John Stanton, Senate Confirms Sotomayor on Bipartisan 68-31 Vote (Aug. 6, 2009), available at: https://www.rollcall.com/2009/08/06/senate-confirms-sotomayor-on-bipartisan-68-31-vote/
 Snead, supra note 4, available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
Monday, September 14, 2020
We are thrilled to feature this guest post by Justice Rhonda Wood of the Arkansas Supreme Court
I (Justice Rhonda Wood, Arkansas Supreme Court) am perhaps a little too excited about the new podcast starting on Constitution Day with three of my friends, Justice Eva Guzman (Supreme Court of Texas), Justice Beth Walker (West Virginia Supreme Court of Appeals), and Chief Justice Bridget McCormack (Michigan Supreme Court). These women are so smart and kind, and I am honored to work with them.
While on the bench all of us have been adamant supporters of civic and legal education. Several of us have worked together on these types of projects. However, the first time the four of us collectively came together was this Spring. Early in the pandemic, educators needed on-line materials and I asked the others if they would record a Zoom video-interview about the judiciary with my granddaughter Blakeley. We did it, and it spurred our desire to keep working on more civic education projects together. You have heard the saying that its better to give than to receive. That is how we feel. The four of us find that when we do educational outreach, we grow personally and professionally.
All of us believe judges have a role in furthering judicial education. We are all on twitter (#appellatetwitter) and find value in using social media to break barriers. So often, the public perceives judges as distant, dare I say stodgy, and the judge’s role in government is misunderstood. We plan to change this.
Through our new Lady Justice: Women of the Court Podcast, we believe we have found a way to reach the public directly and offer insight into state supreme courts, the judiciary as whole, and our role as justices. I think the podcast is one that lawyers will value, but the general public will understand. I also hope that, because we are four women, we can encourage young girls and women to consider the legal profession. Before now, every adjective that describes us: women, state court, and justices, was missing from the podcast arena.
In our first episode, released on Constitution Day, we discuss and compare our various state constitutions. To be honest, we were so fascinated with each other’s constitutions that we secretly wanted to chat much longer than would be reasonable for a podcast.
In our second episode, we will let our listeners get to know us better and discuss our backgrounds and experiences reaching our current positions. I think after this episode, you will realize why I think so highly of my fellow justices. We also have plans for an upcoming Appellate Court 101 episode. On each episode, one of the justices will lead the discussion. We would also love to hear ideas for episodes from our listeners. The podcast is available on iTunes, Spotify, Stitcher, Podbean, and in other podcasting apps. It can also be found at: www.arcourts.gov/ladyjustice
Tuesday, September 8, 2020
On January 1st, 2020, while on vacation with my family, I was pushed by a passing speadboat into a concealed piece of broken pipe while snorkeling, resulting in a quick trip to the emergency room and 18 stitches. At least I got my bad luck out of the way, I consoled myself, and the rest of 2020 would be better. Right?
I thought about that naivete while I was writing a motion for extension of time in an appeal yesterday. I sought the extension because, the week the clerk certified the record to the court, I was caring for my mother and eventually admitting her to the hospital. The next week, one of my partners at work tested positive for Covid-19, and we had to unexpectedly extend and tighten our work-from-home rules. This week, my wife is going to have surgery. And while I am trying to care for everyone and help my children with school, while keeping up with work, I am hobbling around on a broken foot that is not healing as it should.
Fortunately, the court I am preparing this appeal in has adopted a code of appellate practice, in this case, the Texas Standards for Appellate Conduct. Adopted in 1999, Texas was the first jurisdiction to adopt such standards specifically for its appellate practitioners. Since then, several courts have adopted similar standards and expect those practicing in the courts to follow them.
In many ways, these standards codify a practice of civility that has traditionally been followed by those who practice regularly in appellate courts. And while the standards are not mandatory, and cannot provide a basis for sanctions, following them is expected and deviation is strongly disfavored.
Being gracious with requested extensions is addressed twice in the standards. First, Standard 10 of a "Lawyer's Duties to Clients," requires that "Counsel will advise their clients that counsel reserves the right to grant accommodations to opposing counsel in matters that do not adversely affect the client's lawful objectives. A client has no right to instruct a lawyer to refuse reasonable requests made by other counsel." And again, Standard 2 of a "Lawyers' Duties to Lawyers," states that "Counsel will not unreasonably withhold consent to a reasonable request for cooperation or scheduling accommodation by opposing counsel."
These two rules are based on different stated principles. First, that the lawyer's duties to the client must be placed in the context of the system in which they work, which also involves duties owed to the courts and opposing counsel. And second, that only if opposing counsel treat each other with dignity and respect can the effectiveness and integrity of the system be preserved.
Some refer to these rules of comity as part of "the golden rule" You should treat opposing counsel as you would wish to be treated. By including this instruction in the section referencing client duties, and by requiring that the standards be given to clients, the rule is placed in the proper context and explained before any accommodations are sought.
If these general principles are not enough to convince you to act fairly with opposing counsel, then the potential loss of credibility should. Courts do not appreciate it when opposing counsel oppose reasonable requests for extension of time. As the Ninth Circuit explained, "Such uncompromising behavior is not only inconsistent with general principles of professional conduct, but also undermines the truth-seeking function of our adversarial system." Ahanchian v. Xenon Pictures, Inc., 624 F.3d 1253, 1263 (9th Cir. 2010).
If there is some reasonable basis for the extension, then it will likely be granted. Opposing such a request not only makes you look unreasonable, but can create a stigma for you to carry around the next time you appear in that court.
Coronavirus, murder hornets, ransomware attacks, fires, rioting, and whatever comes next have already made this an extraordinarily difficult year. Indeed, the practice of law is difficult even in the best of times. A bit of grace is always appreciated, even in good years, and is doubly appreciated now. Not just by opposing counsel, but also by the Courts.
(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908)
Sunday, September 6, 2020
In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.
Then, Judge Reeves let the officer off the hook.
Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.
By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation. The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever. Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search. To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”
Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.
To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.
The praise afforded to Judge Reeves’s opinion, however, should stop there. Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.” Professor Kerr further stated as follows:
My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern. But there's no plausible argument I am aware of that any of those justifications could apply. To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’
For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.
More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.” Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law. The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?
Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”
Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.” But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong.
Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.
 Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)
 See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp
 See id.
 See id.
 Id. (internal citation omitted) (emphasis in original).
 Id. (emphasis in original).
 Jamison v. McLendon, 2020 WL 4497723, at *29.
Sunday, August 9, 2020
Chief Justice John Roberts’s influence on the United Supreme Court’s jurisprudence has been substantial. Importantly, however, Chief Justice Roberts’s judicial philosophy and approach to constitutional interpretation have raised more questions than answers.
By way of background, when former President George W. Bush nominated John Roberts to the Supreme Court, most commentators speculated that Roberts would be a reliably conservative justice and embrace an originalist approach to constitutional interpretation. Indeed, during his confirmation hearings, Roberts emphasized the limited role of the judiciary, analogized judges to “umpires,” and rejected any suggestion that judges decide cases based on policy predilections. As Roberts stated during his confirmation hearing:
A justice is not like a law professor, who might say, ‘This is my theory... and this is what I'm going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area.’ Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.
Based on these and other statements, legal scholars understandably expected that Chief Justice Roberts would decide cases based on the Constitution’s text and the original meaning underlying its provisions, and thus reach decisions that would favor conservative policy positions.
They were wrong.
Chief Justice Roberts’s jurisprudence has produced more confusion than clarity regarding his judicial philosophy and his approach to constitutional interpretation. To begin with, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts surprised many legal commentators when he relied upon Congress’s power to tax and spend to uphold the constitutionality of the Affordable Care Act. In so doing, Chief Justice Roberts held that the Court should defer to the coordinate branches when a statute can reasonably be interpreted to pass constitutional muster. Importantly, however, in Shelby County v. Holder, Roberts authored the majority opinion in which the Court invalidated Section 4(b) of the Voting Rights Act of 1965 even though the United States Senate had voted 98-0 to re-authorize the Act. And in McCutcheon v. FEC, Chief Justice Roberts authored the majority opinion in which the Court invalidated limits on contributions that individuals can make to candidates for federal office. The decisions beg the question of why deference to the coordinate branches is acceptable in some cases but not others.
In the Supreme Court’s recent terms, some of Chief Justice Roberts’s decisions have engendered confusion regarding his judicial philosophy and approach to constitutional interpretation. For example, in June Medical Services, LLC v. Russo, Chief Justice Roberts concurred in a 5-4 decision that invalidated a Louisiana law requiring abortion providers to obtain hospital admitting privileges. In so doing, Chief Justice Roberts relied on principles of stare decisis to hold that the Court’s prior decision in Whole Women’s Health v. Hellerstadt, which invalidated a nearly identical statute in Texas, controlled the outcome. Chief Justice Roberts’s decision was surprising in many respects. Specifically, Chief Justice Roberts dissented from the Court’s decision in Whole Women’s Health and had previously stated in a brief drafted on behalf of the Department of Justice that Roe v. Wade – the foundation of the Court’s abortion jurisprudence – was “wrongly decided” because it had no “support in the text, structure, or history of the Constitution.” Moreover, Chief Justice Roberts’s reliance on stare decisis in June Medical Services was troubling because in other cases, most recently in Janus v. American Federation of State, County, and Municipal Employees, Council, Roberts rejected stare decisis as a basis upon which to uphold precedent that he believed was wrongly decided. Perhaps more surprisingly in Bostock v. Clayton County, Chief Justice Roberts joined a six-member majority that construed Title VII of the Civil Rights Act, which when enacted prohibited discrimination based on race, color, religion, sex, and national origin, to encompass a prohibition against discrimination based on sexual orientation and gender identity. Although many would agree that the Court reached a favorable outcome, the legal basis for that outcome was questionable. And in joining the majority, Chief Justice Roberts appeared less like an umpire and more like a cleanup hitter.
Of course, there are ways in which to construe Roberts’s decisions as entirely consistent with his judicial philosophy of being an “umpire,” as these cases involved entirely different facts and legal issues. Moreover, most, if not all, judges would eschew labels such as ‘conservative’ or ‘liberal,’ and assert that their decisions are predicated upon a faithful interpretation of the relevant constitutional or statutory text and a respect for precedent. Additionally, most, if not all, judges would state that it is improper to focus exclusively or even substantially on the outcomes that judges reach because doing so politicizes the judiciary and ignores the process by which judges decide cases.
All of this may be true. Notwithstanding, Chief Justice Roberts’s jurisprudence – at least in some cases – arguably deviates from his judicial philosophy, particularly his statement that the Court’s role is tantamount to an “umpire,” and his approach to constitutional interpretation, which prioritizes the text and history over contemporary societal attitudes. As Chief Justice Roberts stated in Obergefell v. Hodges:
[A] much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
Moreover, Chief Justice Roberts’s approach to deference and stare decisis has been inconsistent and unpredictable, thus casting doubt upon whether Chief Justice Roberts’s reliance on either doctrine was merely a vehicle by which to reach an outcome that had less to do with legal interpretation and more to do with political calculations.
So what is going on here?
The most likely explanation is that Chief Justice Roberts is striving to maintain the Court’s institutional legitimacy and credibility with the public. In so doing, Roberts may be particularly focused on avoiding decisions that are perceived as politically motivated or far removed from the mainstream of contemporary political attitudes. Although this approach is certainly understandable, it can have unintended consequences that cause the very problem that Chief Justice Roberts seeks to avoid. For example, if institutional legitimacy and the desire to be perceived as apolitical influences the Court’s decisions, those decisions will, by their very nature, be political because they will be guided by inherently political rather than legal considerations (e.g., the text of a statute or constitutional provision, and precedent). The unintended consequence is that the Court will become inextricably intertwined with, rather than removed from, politics, and further divorced from, rather than reliant upon, legal doctrine as the basis for judicial decision-making. Perhaps most importantly, the determination of precisely what decisions will maintain the Court’s legitimacy is invariably subjective, which risks rendering decisions that, in the name of legitimacy are, as a matter of constitutional law, illegitimate.
Ultimately, this is not to suggest that Chief Justice Roberts is deserving of criticism or has acted with anything but the utmost integrity when deciding cases. Indeed, before joining the Court, Chief Justice Roberts was one of the most influential, respected, and brilliant advocates in the United States, and by all accounts, is an extraordinary colleague and person.
It is to suggest, however, that Chief Justice Roberts’s view of judges as “umpires” was probably correct and should remain as the judiciary’s guiding principle. After all, “[n]obody ever went to a ballgame to see the umpire.”
 Chief Justice Roberts Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
 567 U.S. 519 (2012).
 See id.
 570 U.S. 529 (2013).
 572 U.S. 185 (2014).
 136 S. Ct. 2292 (2016).
 Dylan Scott, John Roberts is the Supreme Court’s new swing vote. Is he going to overturn Roe v. Wade? (July 9, 2018), available at: https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts
 138 S. Ct. 2448 (2017).
 140 S. Ct. 1731 (2020).
 576 U.S. 644 (2015) (Roberts, C.J., dissenting).
 Chief Justice Roberts's Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
Tuesday, July 28, 2020
Much of the initial commentary on the Supreme Court’s fractured opinion in June Medical Services v. Russo focuses on the future of abortion rights, delving into the analytical choices made by Justices Breyer, Roberts, and Alito. But one overlooked theme from the opinion came from Justice Gorsuch’s brief discussion of justiciability. In his dissenting opinion, Gorsuch alluded to a broad requirement for manageable standards—even in cases not previously considered political questions—that could render the Court’s footprint in constitutional litigation significantly smaller over time.
Justiciability was not the only focus in Justice Gorsuch’s dissent. He primarily critiqued the plurality for improperly equating the factual record in June Medical Services with the factual record in Whole Woman’s Health v. Hellerstedt, decided four years earlier. Gorsuch argued that Whole Woman’s Health included a fully-developed factual record specific to the medical and economic realities of Texas; the plurality erred by relying on that same record to find that the admitting privileges law at issue offered no benefit to the health of women in Louisana.
But Gorsuch’s critique went beyond the way the plurality applied the wrong facts to a legal test that required states to show that their laws accrued some benefit to women’s health. Instead, he critiqued that test directly as one that was so malleable as to be hardly a legal test at all, or at least not the sort of test that the Supreme Court should promulgate in good conscience.
Justice Gorsuch argued that any legal test created by the Court should at least be “replicable and predictable,” making it easier for lower courts to follow the Supreme Court’s jurisprudence. Gorsuch then noted that “an administrable legal test even lies at the heart of what makes a case justiciable.” The plurality’s test was not sufficiently manageable; Gorsuch equated its “all-things-considered balancing of benefits and burdens” to a “hunter’s stew,” whereby judges with wide discretion would combine any factual details that “look interesting” into a decision. Driving home his point, Gorsuch quoted last term’s opinion in Rucho v. Common Cause—where the Court found that extreme partisan gerrymandering is a non-jusiticable political question because allegedly there are no “judicially discoverable and manageable standards for resolving” the issue. This component of the political question doctrine, which the Court typically deploys to avoid deciding issues the Justices feel are best resolved by other branches, was thus central even to constitutional questions concerning individual rights under Gorsuch’s formulation.
If the Court deploys a strict understanding of the political question doctrine’s manageability requirement to any legal test, it could undermine many of the Court’s malleable, yet effective, legal standards. Gorsuch’s manageability requirement would seem to prohibit any test that examines the totality of the circumstances or even a wide array of nuanced factors sure to vary from case to case. The manageability requirement urges the Court to generate more bright-line rules that remove discretion from the lower courts, possibly at the expense of carefully-constructed rulings that improve accuracy in individual cases.
A broad manageability requirement could quickly take hold on the Court. In his own dissent in June Medical Services, Justice Thomas argued that stare decisis did not apply to Roe v. Wade and its progeny, in part, because “poorly reasoned precedents that have proved themselves to be unworkable” are ripe for overruling. Though Thomas’s workability language varies slightly from Gorsuch’s manageability requirement, the sentiment is the same; the Court should not intervene in issues where the only legal tests available are too malleable for lower courts to implement in “replicable and predictable” decisions.
The Supreme Court should strive to give the clearest directives possible to lower-level actors. But a broad manageability requirement in all cases would seemingly preclude the Court from resolving many of the pressing problems on its docket, even when the questions they present are in no way political. Whether Justice Gorsuch and others press for such a manageability requirement should be at the forefront of court-watchers’ minds, both in abortion litigation and elsewhere, for years to come.
 June Medical Serv. v. Russo, 591 U.S. __ (2020) (Gorsuch, J., dissenting) (slip op. at 14-15).
 Id. at 14-15
 Id. at 16-18.
 Id. at 16.
 Id. at 17.
 Id. at 16 (quoting Rucho v. Common Cause, 588 U.S. ___ (2019) (slip op. at 11)).
 Id. (Thomas, J., dissenting) (slip op. at 18).
 Id. (Gorsuch, J., dissenting) (slip op. at 16).
Tuesday, July 14, 2020
In a 2015 Justice Elena Kagan quipped that, when it comes to statutory interpretation, "we're all textualists now." She noted that, when she was in law school, statutory interpretation was not taught, and that judges were often left to make what were essentially legislative decision in implementing the law as they believed the legislature intended.
Justice Scalia's tenure on the Court changed that. Scalia argued strongly for textualism as the primary methodology in statutory interpretation, and emphasized its value as a neutral starting point for judges who were meant to be more like umpires than congressmen.
Those watching on the outside questioned the approach. Textualism and originalism are often associated with political conservatism. Some scholars looked at Scalia's decisions and questioned whether they were true methodologies, or just means to a political end. Many political conservatives believed that the increasing influence of textualism meant an increased likelihood that the Court would support their agendas.
Recently, in Bostock v. Clayton County, Justice Gorsuch addressed the meaning of "because of ... sex" in Title VII from a textualist standpoint. Gorsuch explained that under this approach, what the drafters intended in 1964 did not matter. What mattered where the words they used. And because those words prohibited treating a person different "because of sex," whenever sex is a “but-for” cause of an employment decision, Title VII is violated.
In his words: "If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred."
Commentators have had a field day in analyzing this decision. Many of those who are politically conservative are frustrated with the decision because it does not follow their agenda. Many of those who are progressive politically are ready to embrace Justice Gorsuch as a new torchbearer. And on both sides, there are concerns with how this simplistic "but-for" test will work out, with hypotheticals flying.
A short time later, Gorsuch penned another decision, this time in McGirt v. Oklahoma. Once again, Gorsuch's focus was on the text. First, the text that Congress had written to create a reservation for the Muscogee (Creek) Nation, and second, on the lack of any plain text disestablishing that reservation. Again, Gorsuch noted that Congress likely had the desire and intent to do so, but that it never issued any actual laws that would effectuate that intent.
These decisions are both solid evidence that textualism is a methodology, not an ideology. At least for Justice Gorsuch. Gorsuch applied the methodology in a way that permitted him to chart an objective path regardless of ideology.
Indeed, neuroscientists and jurists alike suggest that in order to overcome implicit bias, it is essential to employ objective methodologies. An approach that is rooted in textualism engages the brain in a way that requires "slow" thinking, and can avoid snap judgments based on presupposition.
When it comes to textualism, then, we really are all becoming textualists. Regardless of political affiliation. And we should not be surprised that when judges apply objective standards to statutory interpretation, that interpretation might not always be favorable to the platforms of the party that appointed them. Indeed, the Justices may not even agree with the eventual outcome itself. And that is the point.
Monday, July 6, 2020
Almost three years ago, I posted about a statutory interpretation case out of the Washington Supreme Court that addressed the thorny question of whether a riding lawn mower is a vehicle. It seems that Washington State is at it again with this fascinating case out of the Ninth Circuit. The question--Does "and" mean "and" or does it mean "or?" At issue--who exercises jurisdiction over non-Indians who commit crimes on the Yakima Nation's reservation.
The history of the case is rather complicated, but the key provision is quite simple. At the request of the Yakima Nation, Washington Governor Jay Inslee issued a Proclamation in 2014 that "retroceeded" to the federal government jurisdiction over certain civil and criminal matters that occurred on the Yakima Nation Reservation. Paragraph two of the Proclamation stated (my emphasis):
Within the exterior boundaries of the Yakama Reservation, the State shall retrocede, in part, civil and criminal jurisdiction in Operation of Motor Vehicles on Public Streets, Alleys, Roads, and Highways cases in the following manner: Pursuant to RCW 37.12.010(8), the State shall retain jurisdiction over civil causes of action involving non-Indian plaintiffs, non-Indian defendants, and non-Indian victims; the State shall retain jurisdiction over criminal offenses involving non-Indian defendants and non-Indian victims.
In an accompanying letter, Governor Inslee explained that the "and" in that last sentence meant "and/or," and, according to the opinion asked the Interior Department to make that clear when it accepted the Proclamation. It didn't. Over the intervening years, there were several interpretations of the language by different parts of the federal government and the court system. The most lasting interpretation appears to be a memorandum from the Office of Legal Counsel, which sided with team "and/or," resting heavily on the usage of "in part" in the first line.
In September 2018, the events giving rise to this case occurred. The Yakima Nation brought this particular claim seeking a preliminary injunction for team "and." Unfortunately for them, the Ninth Circuit didn't agree.
There is some delightful language in the Ninth Circuit opinion. Judge Ryan Nelson, writing for the majority, explained that while the "most common meaning" of and is "together" or a conjunctive usage, it isn't always used that way. It can, he says, mean "or":
Examples of “and” used to mean “or” abound. For example, a child who says she enjoys playing with “cats and dogs” typically means that she enjoys playing with “cats or dogs”—not that cats and dogs must both be present for her to find any enjoyment. Similarly, a statement that “the Ninth Circuit hears criminal and civil appeals,” does not suggest that an appeal must have a criminal and civil component for it to be properly before us. Nor would a guest who tells a host that he prefers “beer and wine” expect to receive “a glass of beer mixed with wine.” OfficeMax, Inc. v. United States, 428 F.3d 583, 600 (6th Cir. 2005) (Rogers, J., dissenting). In each instance, the common understanding is that “and,” as used in the sentence, should be construed as the disjunctive “or.”
Seems pretty logical to me, but I would naturally use "or" in that last example (although I dislike beer so I wouldn't even say that last example). Judge Nelson goes on to explain,
The same is true here when we examine “the broader context” of the Proclamation, Robinson, 519 U.S. at 341, in particular the Proclamation’s use of the term “in part” in Paragraphs 2 and 3. In both Paragraphs 2 and 3, the State “retrocede[s]” criminal jurisdiction “in part,” but retains “criminal jurisdiction” over “offenses involving non-Indian defendants and non-Indian victims.” If “and” in those sentences is interpreted to mean “or,” the retrocession “in part” makes sense. Under that interpretation, the State has given back a portion of its Public Law 280 jurisdiction— jurisdiction over crimes involving only Indians—but has kept Public Law 280 criminal jurisdiction if a non-Indian is involved.
Interpreting “and” in those Paragraphs as conjunctive, however, does not give “in part” meaning. Under that interpretation, the State has retroceded all jurisdiction that it received under Public Law 280—that is, criminal jurisdiction over all cases involving Indians. If that is the case, Paragraphs 2 and 3 are no different than Paragraph 1, which retroceded “full civil and criminal jurisdiction” over certain subject matters. But that cannot be right, because Paragraph 1 uses the phrase “full,” whereas Paragraphs 2 and 3 use the phrase “in part.”
Looking at the Proclamation, this does seem like a logical reading of it, although I wonder why "and/or" wasn't used in the original drafting of the Proclamation. It seems like that would have saved everyone a lot of trouble.
Regardless, let this be a lesson for drafters of statutes and Proclamations. Have a happy Monday AND (and I do mean AND) a good week.
Sunday, June 21, 2020
This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California – that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity. In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex. In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.
The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.
So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”
Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.
I. Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts
The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.
Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.
But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision. And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage. Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.
Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.
II. Ideology matters – for conservative and liberal justices
For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.
However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.
Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.
III. Bias matters – for both liberal and conservative justices
Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women. In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.” Additionally, African-American defendants often receive harsher sentences than white defendants. As one scholar explains:
[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.
Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.” In so doing, the potential for reaching an improper result increase substantially.
IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”
Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.” As researchers explain:
[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.
Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.
V. Intuition matters
Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.” As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.” In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.
Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.
 See 590 U.S. ___ , 2020 WL 3146686.
 See id.
 See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.
 Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.
 567 U.S. 519 (2012).
 570 U.S. 529 (2013).
 576 U.S. 644 (2015).
 See id.
 Id. at 28 (internal citation omitted).
 Id. at 29.
 Id. at 32.
 Id. at 16.
 Id. at 24.
 Id. at 27.
 Id. at 14.
 Id. at 21.
Saturday, June 20, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
- Earlier this week, the Supreme Court in a 6-3 decision ruled that the plain language of the Civil Rights Act of 1964 applies to discrimination based on both sexual orientation and gender identity. Widely seen as a landmark decision, the ruling applied textualist principles and found that the plain language unambiguously protects gay, lesbian, and transgender employees because decisions discriminating for those reasons are—at their core—decisions discriminating because of sex. The opinion recognizes that "[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex.” See the opinion and a sampling of the many reports from NPR, The New York Times, The Washington Post, and Bloomberg Law.
- On Thursday, in another much-anticipated case, the Court ruled 5-4 that the administration’s attempt to end DACA is impermissible. Justice Roberts writes, “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ [citation omitted.] We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” See the opinion and a sampling of the many reports including from The New York Times, CNN, NBC News, and NPR.
Federal Appellate Court Opinions and News
- Last week, the Fourth Circuit invoked the murder of George Floyd in its opinion reversing a lower court and refusing to apply qualified immunity to dismiss a lawsuit again police officers who shot a black American 22 times after the victim had been subdued. The opinion found that if the victim “was secured, then police officers could not constitutionally release him, back away, and shoot him. To do so violated [his] constitutional right to be free from deadly force under clearly established law." The opinion also states that, “[a]lthough we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop.” See the opinion and reports from CNN, The Washington Post, and The National Law Journal.
- Today, a federal court denied an emergency request from the Justice department block former national security adviser John Bolton's book from being published. The court held that, “while Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy.” See reports from The Hill, CNN, and NPR (find order at NPR link).
Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.