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.
Sunday, June 7, 2020
The death of George Floyd was tragic and appalling. The video that showed Officer Derek Chauvin’s knee on Floyd’s neck for almost nine minutes was disturbing. Sadly, many unarmed African-Americans have been fatally shot by law enforcement, and although most officers have been acquitted of criminal conduct based on these events, they have been tragic and involved the questionable, if not unnecessary, use of force.
This is not to say that the majority of law enforcement officers are bad people. Most strive to – and do – protect their communities. But the events this past week have rightfully renewed a call to address problems in the law enforcement community and issues related to inequality. Below are a few thoughts regarding how to address the broader issue of inequality and achieve a society where equal opportunity exists for all citizens.
I. Focus on Institutional Corruption, not merely Institutional, or Systemic, Racism
There can be no doubt that racism and discrimination exist throughout the United States. Indeed, the legacy of, among other things, slavery, segregation, and Jim Crow have caused incalculable social and economic harm to African-Americans that continue to this day. As such, achieving equality and eradicating discrimination in all of its forms is a moral and categorical imperative.
To do so, however, it is not sufficient to rely upon an overly general assertion that the United States is currently an institutionally or systemically racist society. Although institutional racism certainly existed for much of this country’s history, it does not exist to nearly the same degree in contemporary society. For example, federal and state laws outlaw discrimination. Public universities have prioritized diversifying their student bodies and faculty. Private employers have made laudable efforts to diversify their workforces. Affirmative action programs have increased access to education for traditionally disadvantaged groups. This is merely a representative sample of the efforts reflecting a commitment to equality of opportunity and evincing a condemnation of practices that, by design or in effect, discriminate against particular groups.
Of course, although institutional racism is no longer ubiquitous, there can be no doubt that some institutions remain racist or, at the very least, retain policies that disparately impact traditionally marginalized groups. Accordingly, the best path to achieving equality would be to identify, at the county, state, and federal level, the specific institutions that remain institutionally or systemically racist – and to develop workable policy prescriptions to remedy the infirmities in these institutions. Put differently, it does little, if any, good to recite the proposition to institutional or systemic racism exists because these terms are overly broad and thus make it difficult to develop workable and sustainable remedies for specific problems.
Additionally, scholars and policymakers place insufficient emphasis on institutional corruption. This concept, which was developed by Harvard Law School Professor Lawrence Lessig, states as follows:
Institutional corruption is manifest when there is a systemic and strategic influence which is legal, or even currently ethical, that undermines the institution’s effectiveness by diverting it from its purpose or weakening its ability to achieve its purpose, including, to the extent relevant to its purpose, weakening either the public’s trust in that institution or the institution’s inherent trustworthiness.
Simply put, institutional corruption does not involve violations of the law. Rather, it refers to the degradation of an institution’s underlying values, and how the institution’s actions, although not illegal, undermine the public trust.
The United States Department of Justice’s investigation into the tragic death of Michael Brown – and the Ferguson Police Department – is instructive. The Department cleared Officer Darren Wilson of wrongdoing but, in so doing, found that the Ferguson Police Department was institutionally corrupt. That is, although the Ferguson Police Department did not engage in illegal activity per se, its policies and practices disproportionately and unfairly impacted African-American residents, thus highlighting the need for principled reforms.
II. Focus on Crime Prevention by Addressing the Underlying Causes of Criminality
There can be no doubt that reforms to policing practices (and legal doctrines, such as qualified immunity) are necessary in some jurisdictions to ensure that police brutality ends and that the lives of African-American suspects (and all suspects) are not needlessly lost. This may include eliminating specific physical restraints, making changes to police training methods, and revisiting the qualified immunity doctrine.
But such reforms are not enough.
Legislators and policymakers must address a critical issue that has nothing to do with law enforcement – the underlying causes of criminality in the African-American community (and all communities, for that matter) – and strive to reduce criminal behavior.
Regarding this issue, the landmark report of former Senator Daniel Patrick Moynihan is also instructive, albeit controversial. In that report, Senator Moynihan found that, by the mid-1960s, nearly half of African-American families were in the middle class. In subsequent years, however, that progress stalled. Senator Moynihan posited that the decline of the nuclear family and the increase in single-parent families contributed to this problem as part of a “tangle of pathology,” which included “delinquency, joblessness, school failure, crime, and fatherlessness.” These factors, Moynihan concluded, created a “self-perpetuating cycle of deprivation, hardship, and inequality.” Decades after its publication, the Urban Institute revisited Senator Moynihan’s report and concluded that African-Americans “still suffer from the intersecting disadvantages that Moynihan called a ‘tangle of pathologies,’ with each negative factor reinforcing the others.” Specifically, the Urban Institute noted that children “born into single-mother families [approximately 72% of African-American children] are far more likely to be poor and persistently poor than children born into two-parent families,” and that “[h]igh-poverty neighborhoods suffer from high rates of crime and violence, poor schools, and weak connections to the labor market.” Consequently, these factors may be responsible, in part, for criminality and inequality of opportunity.
But the Moynihan Report’s findings do not tell the whole, or even most important part, of the story. Perhaps the most deleterious effect of the systemic discrimination that continued until the mid-twentieth Century was the disparity in the quality of education at the grade and high school levels. To make matters worse, in San Antonio School District v. Rodriguez, the United States Supreme Court held that the funding of public schools based on property tax revenue did not violate the Fourteenth Amendment. The practical effect was far-reaching and long-lasting: children from wealthy neighborhoods received a better education than children from poor neighborhoods. That, in a nutshell, made equality of opportunity illusory for poor children of all races. As the Urban Institute noted, “[y]oung people from high-poverty neighborhoods are less successful in school than their counterparts from more affluent communities: they earn lower grades, are more likely to drop out, and are less likely to go on to college.”
Make no mistake: racism is and continues to be part of the problem. Indeed, the Urban Institute noted that “race remains a factor in determining economic opportunities and outcomes,” and that “aggressive enforcement of antidiscrimination statutes as well as affirmative action policies are required to ensure equal opportunity.” Police brutality, of course, is also a problem, and the recent protests are a testament to citizens’ rightful anger, at such brutality although those citizens who engaged in violence and other criminal activity should not be considered protesters in any sense whatsoever.
But the path to equality requires policymakers and scholars to do far more than focus on law enforcement. For the promise of equality to become a reality for all citizens, researchers and scholars must develop policies that address community and family issues, and that remedy the disparities in education at the grade and high school levels.
III. Reform Federal and State Sentencing Guidelines – and Reentry Programs
At the federal and state level, sentencing guidelines often authorize the imposition of unnecessarily long and unprincipled sentences. Additionally, during incarceration, the criminal justice system often provides inadequate support and treatment for mentally ill inmates. And upon release, these individuals, many of whom are members of traditionally disadvantaged groups, have deteriorated substantially and lack the social and economic support to successfully reintegrate into society. Not surprisingly, they frequently engage in criminal conduct and return to prison, where the cycle continues.
Thus, reforming sentencing law to enhance rehabilitation-based programs for inmates – and prioritize support for inmates upon release – is critical to reducing crime.
IV. The Millennial Sequence
The path to the middle class – and away from criminality – is attainable for citizens of all backgrounds. Specifically, the American Enterprise Institute has found that, among millennials, “getting at least a high school degree, working full-time, and marrying before having any children,” facilitates upward mobility into the middle class:
[The] divergent paths toward adulthood are associated with markedly different economic fortunes among Millennials. Young adults who put marriage first are more likely to find themselves in the middle or upper third of the income distribution, compared to their peers who have not formed a family and especially compared to their peers who have children before marrying … This pattern holds true for racial and ethnic minorities, as well as young adults from lower-income families. For instance, 76% of African American and 81% of Hispanic young adults who married first are in the middle or upper third of the income distribution, as are 87% of whites.
In fact, this sequence is almost certain to reduce, if not eliminate, the likelihood that an individual will live in poverty:
97% of Millennials who follow what has been called the “success sequence”—that is, who get at least a high school degree, work, and then marry before having any children, in that order—are not poor by the time they reach their prime young adult years (ages 28-34). The “success sequence,” so named by Brookings Institution scholars Ron Haskins and Isabel Sawhill, has been described as the path into adulthood that is most likely to lead towards economic success and away from poverty.
The problem, however, is that “young adults aged 28 to 34 from lower-income families are about half as likely to have completed the success sequence, or be on track with the sequence, compared to their peers from upper-income families.”
This short article cannot capture in sufficient detail the many issues relevant to inequality. Ultimately, however, and perhaps most importantly, the solution to this problem requires citizens of all races and backgrounds to come together in a spirit of reconciliation, with a commitment to eradicating racism and discrimination, and with an openness to diverse perspectives. It does no good to maintain an almost-exclusive focus on, for example, white privilege (the extent of which cannot be quantified and differs based on intersectional factors), and implicit bias (which evidence suggests does not correlate with biased behavior). These arguments rightfully identify problems impacting inequality, but without more, they have no practical impact on improving the day-to-day lives of African-Americans. If anything, now is the time to come together and recognize that what we have in common far outweighs that which we do not, and to collectively devote our efforts to achieving equality – and equal protection of the law – for all citizens. After all, what happened to George Floyd, and many others, should never happen again. The United States Constitution guarantees equality for all citizens and whenever the effects of inequality manifest – as they did in Minneapolis – the Founders’ vision for a more perfect union vanishes.
 Institutional racism is generally defined as state-sponsored policies that discriminate against or disproportionately impact traditionally marginalized groups.
 Edmond J. Safra, Institutional Corruption, available at: https://ethics.harvard.edu/lab
 See United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (March 4, 2015), available at: https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf
 Kay S. Hymowitz, The Black Family: 40 Years of Lies, (2005), available at: https://www.city-journal.org/html/black-family-40-years-lies-12872.html
 Gregory Arcs, The Moynihan Report Revisited (June 2013), available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF
 411 U.S. 1 (1973).
 Arcs, supra note 6, available at: available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF\
 W. Bradford Wilcox, The Millennial Success Sequence: Marriage, Kids, and the ‘Success Sequence’ Among Young Adults (June 2017), available at: https://www.aei.org/research-products/working-paper/millennials-and-the-success-sequence-how-do-education-work-and-marriage-affect-poverty-and-financial-success-among-millennials/
Saturday, May 23, 2020
In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.
I. The Court’s Decision
By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.
In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime. Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.” Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness. Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.” Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”
The Court got it wrong.
There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong. Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.
Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”
Justice Breyer explained as follows:
A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.
That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.
III. Broader Problems With the Insanity Defense
The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling. Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.
As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.
Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.
Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.
 See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf
 Id. (internal citation omitted).
 A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.
 This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.
Wednesday, May 13, 2020
This blog post might provide you with information you already know. The information is new to me, which made me think sharing it might assist others as well. As I was looking at the Louisiana Supreme Court’s website recently, a reference caught my eye. That reference was to the publication, “Preparing for a Pandemic: An Emergency Response Benchbook and Operational Guidebook for State Court Judges and Administrators.” The publication can be downloaded here: https://ncsc.contentdm.oclc.org/digital/collection/facilities/id/194.
A team from the Conference of Chief Justices and the Conference of State Court Administrators worked on a Pandemic and Emergency Response Task Force to create this document, which was published by the National Center for State Courts in 2016! That date caught my eye because, like so many of you, I have been stunned over the past few months (yes, months that sometimes feel like years) by what has been going on in the world: stunned by the magnitude of this pandemic. And now, I am stunned by the fact that this group created this resource four years ago that is so relevant to what the world is experiencing in 2020.
The benchbook/guidebook urges state courts to create their own books tailored to their states in which they include both federal and state laws that will be relevant should a pandemic occur. It raises issues to be considered in a pandemic, such as maintaining constitutional protections during a pandemic; operating courts during a pandemic; searches, seizures, and other government actions to maintain public health; and jurisdiction of public health issues. It suggests that courts create certain model orders and court rules to use in the event of a pandemic. It also provides a resources list that includes citations to state courts that already had such plans back then. From back in 2016, it discusses and suggests many of the things that we are now discussing and suggesting.
I highly recommend you review this document, if you have not already seen it. Perhaps it will be helpful to you in your law practice, in your law school, in your court, and even in your personal life as you grapple with and consider issues that do not often present themselves. Thank you to the National Center for State Courts https://www.ncsc.org/, the Conference of Chief Justices https://ccj.ncsc.org/, and the Conference of State Court Administrators https://cosca.ncsc.org/ for thinking ahead. I only wish we did not need your good book.
May 13, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Profession, Oral Argument, State Appeals Courts | Permalink | Comments (2)
Sunday, May 10, 2020
The criminal justice system’s treatment of mentally ill offenders is woefully inadequate and alarmingly ineffective. Indeed, the treatment of such offenders – from arrest to conviction – often exacerbates their psychiatric disorders and enhances the likelihood that they will re-offend – or die while trying to reintegrate into society.
Below is a summary of various aspects of the criminal justice system that highlight the inadequate treatment provided to mentally-ill defendants.
I. Before trial
First, criminal defendants with mental illnesses, such as schizophrenia, bipolar disorder, and major depression, often languish for many months in state prisons while awaiting trial. During this time, many mentally ill defendants, some of whom have been declared incompetent to stand trial, fail to receive adequate psychiatric care and often receive little to no counseling or other support services. As a result, their mental health frequently deteriorates substantially while awaiting trial in overcrowded and underfunded prisons, or in psychiatric hospitals where the primary, if not exclusive, objective is to restore the defendant to a minimum level of competence. The deleterious effects of these substandard and, in some cases, inhumane conditions are debilitating and long-lasting.
II. During trial
At a criminal trial, mentally-ill defendants often find it difficult, if not impossible, to demonstrate that their respective mental illnesses were a substantial or proximate cause of a crime's commission and that, accordingly, they are less culpable (or not responsible at all). Although defendants may plead the insanity defense, this defense is only used in approximately one-percent of cases and is unsuccessful in approximately seventy-five percent of those cases. The reason is that most jurisdictions follow the M'Naghten rule, which requires a showing that a defendant was mentally ill or impaired at the time of the crime’s commission and that the defendant did not appreciate the wrongfulness of his or her conduct (i.e., could not distinguish between right and wrong).
The latter prong of the M’Naghten test makes it extremely difficult for defendants to prove insanity. Simply put, a mentally ill defendant may technically or abstractly understand that particular conduct is unlawful but, due to the deleterious effects of mental illness (e.g., impulse control, irrationality, delusions), the defendant may lack the intentionality necessary to comport with the law.
III. Incarceration after conviction
Many mentally-ill defendants are found guilty and sentenced to lengthy periods of incarceration in an environment that is highly likely to exacerbate, rather than ameliorate, their respective mental illnesses. Specifically, being confined for prolonged periods of time without meaningful social interaction, receiving insufficient psychiatric care and evaluation, and having little to no support services (e.g., counseling, cognitive behavioral therapy) all but guarantee that mentally-ill inmates will deteriorate, if not decompensate, while incarcerated. The result is that, upon release, mentally-ill defendants struggle to reintegrate into society and achieve emotional and financial stability.
IV. Inadequate post-release support
Upon release, mentally ill defendants often receive insufficient mental health treatment. Although mental health courts in some states have improved the type and quality of care provided to some defendants, particularly those convicted of minor crimes, many defendants with mental health issues who have deteriorated substantially while incarcerated receive substandard care upon release.
Indeed, courts are often reticent to approve a post-release in-patient treatment program for mentally-ill defendants. Thus, these defendants, some of whom are suffering from severe mental health issues, typically receive only out-patient care, and the compliance rates for these defendants vary substantially. Furthermore, the outpatient care that mentally ill defendants receive is often woefully inadequate, consisting of only periodic psychiatric assessments, including regarding the efficacy of medication, and only a modest degree of individualized counseling at state-run hospitals of dubious quality. Moreover, in some cases, the implementation of an outpatient program is delayed upon release, which leaves mentally ill defendants without any care whatsoever for days, if not weeks.
V. The results – recidivism and suicide
Not surprisingly, upon release, and lacking adequate mental health support, a substantial portion of mentally ill defendants fail to successfully reintegrate into society:
Once in jail, many individuals don't receive the treatment they need and end up getting worse, not better. They stay longer than their counterparts without mental illness. They are at risk of victimization and often their mental health conditions get worse. After leaving jail, many no longer have access to needed healthcare and benefits … Many individuals, especially without access to mental health services and supports, wind up homeless, in emergency rooms and often re-arrested. At least 83% of jail inmates with a mental illness did not have access to needed treatment.
And in some instances, these defendants commit suicide. This was precisely the result that occurred when my brother, Marc Lamparello, committed suicide three weeks ago by jumping off the Verrazano Bridge in New York.
On April 17, 2019, Marc, who had previously been diagnosed as schizophrenic, was arrested and charged with attempted arson after entering St. Patrick's Cathedral in New York City with four gallons of gasoline. For the next year, Marc spent most of his time at Riker's Island prison in New York, with an intermittent stay at a psychiatric hospital in New York before he was transferred back to Riker’s Island while he awaited trial.
During his time at Riker's Island, including in the last five months, Marc received psychiatric medication but was provided with no therapy or other support services whatsoever. Incarcerated in an overcrowded and underfunded prison, Marc’s condition continuously deteriorated while it took the state criminal court months to approve a plea bargain and effectuate his release. As part of his release, Marc was required to immediately undergo intensive outpatient therapy – five times per week for six hours per day. And by the time of his release in mid-March, Marc's condition had deteriorated so substantially that immediate and sustained treatment was necessary to save his life.
But that never happened. For thirty days, Marc did not receive any treatment whatsoever. At first, Marc’s caseworker and psychiatric hospital explained that, due to coronavirus concerns, Marc had to quarantine for fourteen days. Subsequently – and without explanation – Marc was dropped from the treatment program.
Only days later, on April 10, 2020, Marc attempted to jump off of the George Washington Bridge in New York City. His life was saved when law enforcement officers rescued him before he could jump. In the next few days, Marc’s family implored doctors at the psychiatric hospital to which he was admitted to enroll Marc in the hospital’s in-patient program. They declined.
Instead, the hospital released Marc only five days later.
Two days after his release, Marc jumped off of the Verrazano Bridge in New York and died. Marc's death highlights the woefully inadequate treatment that he received during and after incarceration. In short, the manner in which Marc was treated during and after incarceration was disgraceful.
This is not to say, of course, that incarceration is neither necessary nor desirable for many defendants, including those with mental illnesses, particularly those convicted of violent crimes. It is to say, however, that the criminal justice system's approach to treating mentally ill defendants is glaringly inadequate. Given this fact, scholars, practitioners, and public policy experts should continue to emphasize before courts and legislatures the need to reform the criminal justice system’s substandard treatment of mentally ill defendants.
The current paradigm is fundamentally unjust.
*This post is dedicated to my younger brother Marc Lamparello, who died on April 17, 2020, at the age of 38. Rest in peace, Marc.
 See The Sentencing Project, Mentally Ill Offenders in the Criminal Justice System: An Analysis and Prescription, available at: https://www.sentencingproject.org/wp-content/uploads/2016/01/Mentally-Ill-Offenders-in-the-Criminal-Justice-System.pdf
 See Paul Tullis, When Mental Illness Becomes a Jail Sentence (Dec. 2019), available at: https://www.theatlantic.com/politics/archive/2019/12/when-mental-illness-becomes-jail-sentence/603154/
 See Natalie Jacewicz, 'Guilty But Mentally Ill' Doesn't Protect Against Harsh Sentences (Aug. 2016), available at: https://www.npr.org/sections/health-shots/2016/08/02/486632201/guilty-but-mentally-ill-doesnt-protect-against-harsh-sentences
 See Human Rights Watch, Ill-Equipped: U.S. Prisons and Offenders with Mental Illness (Oct. 2003), available at: https://www.hrw.org/report/2003/10/21/ill-equipped/us-prisons-and-offenders-mental-illness
 See Jo Sahlin, The Prison Problem: Recidivism Rates and Mental Health (May 2018), available at: https://www.goodtherapy.org/blog/prison-problem-recidivism-rates-mental-health-0520187
 See generally, Released inmates need programs to meet basic mental health needs, study shows (Jan. 2014), available at: https://www.sciencedaily.com/releases/2014/01/140106103737.htm
 National Institute of Mental Health, Jailing People with Mental Illness, available at: https://nami.org/Advocacy/Policy-Priorities/Divert-from-Justice-Involvement/Jailing-People-with-Mental-Illness
 See Jan Ransom, An Arrest at St. Patrick's, a Struggle for Help, Then a Suicide (April 30, 2020), available at: https://www.nytimes.com/2020/04/30/nyregion/marc-lamparello-suicide-st-patricks-arson.html
Wednesday, April 22, 2020
If stare decisis really is for suckers, the Supreme Court’s decision in Ramos v. Louisiana was an unremarkable end to the anachronistic Apodaca v. Oregon decision permitting states to convict criminal defendants without unanimous jury verdicts. But for those that have argued for a strong stare decisis tradition and defended the doctrine’s importance, the Ramos opinion’s sustained discussion of when to overrule a precedent is a fascinating read.
First, Ramos reiterated that a relatively weak tradition of stare decisis is in vogue on the Supreme Court. In a process that culminated in 2018’s Janus v. AFSCME opinion, the Court has recently moved towards a version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone. In contrast, a strong stare decisis tradition sets “poor reasoning” as a condition precedent to stare decisis analysis, not a ground for reversal; such reversals occur only if there is a special justification, such as unworkability, strong reliance interests, new legal developments, or vastly changed facts. Writing for the Court, Justice Gorsuch quoted the weak version of stare decisis in Franchise Tax Board of California v. Hyatt—which in turn relied upon the formulation in Janus—to emphasize that the quality of a decision’s reasoning is the primary consideration within stare decisis analysis. His argument against Apodaca then focused on its “gravely mistaken” reasoning, which made it an outlier in the Court’s Sixth Amendment and incorporation jurisprudence and engendered the reliance of only two states. In addition to the three Justices that joined Gorsuch’s opinion in full, two concurring Justices, Cavanaugh and Thomas, would likewise make the quality of a precedent’s reasoning the primary consideration, if not the singular consideration, in the stare decisis tradition. And even the three-Justice dissent made its argument in defense of Apodaca on the weak stare decisis tradition’s terms. The dissent—an unexpected alignment of Justices Alito, Roberts, and Kagan—argued that Apodaca was not nearly as poorly reasoned as the majority would have it, but was silent on whether such poor reasoning should be a reason to overrule. The dissent’s silence on that point was even more thunderous given Kagan’s prior insistence that “it is not enough [to overrule because] five Justices believe a precedent wrong.”
Second, Ramos introduced a new facet to the stare decisis debate. Can some precedents be so fractured and incomprehensible as to be no precedent at all, becoming a “phantom precedent?” Three Justices that joined the primary opinion in full argued that Apodaca was just such a jurisprudential apparition. For that trio, Apodaca failed to supply a “governing precedent” because its controlling opinion came from a single Justice, Powell, supporting a theory of “dual-track” Sixth Amendment incorporation that a majority of the Apodaca Court itself rejected. And while Sotomayor wrote separately without adopting that portion of the primary opinion, her own view was remarkably similar. She claimed Apodaca was a “universe of one” that was so “irreconcilable with . . . two strands of constitutional precedent” that its precedential value was minimal, if not evanescent.
Those opinions offered little insight into how to identify the phantom precedents within the many fractured opinions the Court issues each term. Perhaps Apodaca was uniquely unable to generate precedential value; without any guiding principles to identify why that decision was a phantom, it is hard to tell. Perhaps the view that Apodaca is a phantom precedent merely expresses discomfort with the rule in Marks v. United States that the Court’s holding in a fractured opinion is “that position taken by those Members who concurred in the judgments on the narrowest grounds.” Powell’s Apodaca opinion seems to fit that bill, but perhaps the Ramos Court marks the start of a new method to measure the holding of fractured opinions. Or perhaps Ramos intimates the Supreme Court’s desire to allow some of its opinions to have little or no precedential effect, much like the now commonplace unpublished decisions that I have discussed elsewhere on this blog.
Ramos is a complex decision with many layers to unpack beyond the few I’ve mentioned here. But its take on stare decisis is utterly fascinating. In future years, it may mark an important turning point for a doctrine whose death has been reported with great exaggeration.
 590 U.S. ___ (2020).
 406 U.S. 404 (1972).
 585 U.S. __ (2018).
 Ramos, 590 U.S. ___ (2020) (slip op., at 20).
 Id. (slip op., at 20-22).
 Id. (slip op., at 7-8, 10-11) (Kavanaugh, J., concurring) (suggesting that the first factor in stare decisis analysis is whether the precedent is “grievously wrong,” which Apodaca was); Id. (slip op., at 2-3) (Thomas, J., concurring) (claiming that “demonstrably erroneous” decisions must be overturned irrespective of any practical stare decisis considerations).
 Id. (slip op., at 13-15) (Alito, J., dissenting).
 Knick v. Township of Scott, 588 U.S. __ (2019) (slip op., at 16) (Kagan, J., dissenting) (citing Kimble v. Marvel Entertainment, LLC, 576 U.S. __ (2015) (slip. op., at 8)).
 Ramos, 590 U.S. ___ (2020) (slip op., at 7) (Alito, J., dissenting).
 Id. (slip op., at 16).
 Id. (slip op., at 2) (Sotomayor, J., concurring).
 430 U.S. 188, 193 (1977).
April 22, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)
Tuesday, March 17, 2020
Yesterday, the Supreme Court postponed two weeks of Oral Arguments, releasing this statement:
In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.
The Court will hold its regularly scheduled Conference on Friday, March 20. Some Justices may participate remotely by telephone. The Court will issue its regularly scheduled Order List on Monday, March 23 at 9:30 a.m. The list will be posted on the Court’s Website at that time: https://www.supremecourt.gov/orders/ordersofthecourt/19.
The Building will continue to be open for official business, and filing deadlines are not extended under Rule 30.1. The Court is expanding remote working capabilities to reduce the number of employees in the Building, consistent with public health guidance. The Building will remain closed to the public until further notice.
The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.
As has been well-documented, those older than 60 are at greater risk of serious complications and death from COVID-19. Currently, 7 of 9 justices are over 60. Two justices, Ruth Bader Ginsberg and Stephen Breyer, are over 80. Some are already calling for an increase in technological solutions, rather than just postponing to later live hearings.
There are significant numbers of other court closures and scheduling changes happening around the country. As every day brings new announcements, it’s a rapidly changing situation.
Friday, March 13, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News:
The Supreme Court will hear a case from Mississippi that looks at the constitutional limits of sentencing juvenile offenders to life in prison without parole, specifically whether it is a constitutional violation to impose the sentence absent a finding that the defendant is incapable of rehabilitation. See report from the Hill and the NY Times.
This week, the Supreme Court granted an emergency request to lift a Ninth Circuit block on an administration immigration policy. The ruling leaves in place the policy that requires thousands of people seeking asylum to wait in Mexico while their claims are adjudicated. See Reuters report.
A recent study from Yale looks at the practice of the Supreme Court that gives the solicitor general oral argument time as a “friend of the court.” The study looks at the history of the practice and its effect on the adversarial process. See the study and a report in the NY Times.
Federal Appellate Court Opinions and News:
The US District Court for the District of Columbia upheld the lower court and held that the Justice Department must release the secret grand jury evidence lawmakers are seeking in the ongoing investigations into the president. See the opinion and a sampling of the reports from the Washington Post, the NY Times, Bloomberg, the Hill.
The Ninth Circuit ruled in favor of Led Zepplin in the appeal of a copyright suit claiming the ever-popular “Stairway to Heaven” copied a song by the band Spirit. The en banc opinion of the 11-judge panel affirmed the jury decision that the songs were not substantially similar. The court also took “the opportunity to reject the inverse ratio rule, under which [the Court has] permitted a lower standard of proof of substantial similarity where there is a high degree of access.” The Court ruled that this “formulation is at odds with the copyright statute and we overrule our cases to the contrary.” Some claim that this may be a “precedent-setting win for musical acts accused of plagiarism.” AP News. See a sampling of the many reports here: Rolling Stone, the LA Times, the NY Times, Reuters, Bloomberg, Law.com’s site “The Recorder” (subscription), the Wall Street Journal (subscription).
The US District Court for the District of Columbia determined that it lacked the expertise to evaluate a Guantánamo Bay prisoner to determine whether he qualifies for medical repatriation in consideration of his writ for habeas corpus. Instead, in a first for federal courts, the Court ordered a mixed medical panel of American and foreign physicians to evaluate the mental health of the prisoner, Mohammed al-Qahtani, a Saudi Arabian man held at Guantánamo for more than 18 years. See the ruling and reports from the NY Times, the Washington Post (subscription), and the ABA Journal.
COVID-19 and the Courts
COVID-19 is, of course, affecting court operations. Many courts are closing or restricting public access. The Supreme Court has closed its doors to the public as of March 12; the closure will not extend case filing deadlines under Supreme Court Rule 30.1. For general information about other court closures and restriction, Law360 has an updating list of closures and restricts here. For specific courts, see individual court websites, many of which include statements specific to COVID-19 procedures.
Sunday, March 8, 2020
On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.
By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion. In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.
The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas. In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.
At oral argument, the justices appeared divided.
Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.
Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.
Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.
Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.
Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”
And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.
Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.
I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.
Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.
Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.
 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).
 579 U.S. ; 136 S. Ct. 2292 (2016).
 See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.
 Id. at 61:24 to 62:9.
March 8, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Sunday, March 1, 2020
The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints
Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”
Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean. Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.
Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.
Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.” As Justice Ginsburg explained:
Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.
Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.” Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”
In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.” As one commentator described:
They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).
Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”
Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”
 Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: ‘We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).
 See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap
 See id.
 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).
 Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).
 Id. (emphasis added).
 Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1
 Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html
 David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).
 Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.
 Williams and Fieldstadt, supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).
 Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).
Wednesday, February 26, 2020
I write this as I prepare to help administer the San Francisco regional tournament of the 2020 American Bar Association's National Appellate Advocacy Competition. Thirty-two teams from law schools around the country will participate, and on Saturday we'll emerge with four regional champions who will punch their tickets to the national finals in Chicago.
This year's problem is about prosecutors: the advocates are arguing two issues about the scope of prosecutors' obligation under Brady v. Maryland to disclose exculpatory evidence. And, lately, when I think about prosecutors, I think about the remarkable piece of audio I reference in the title of this post.
It is oral argument audio. But there is no argument. As Matthew Stiegler describes in this post to his excellent CA3blog, the case is Fisher v. Commissioner, a habeas matter arising out of a forty year-old murder. Robert Fisher was convicted (after a retrial) of first-degree murder in 1991 and sentenced to death (after a resentencing) in 1996. His habeas action, which dates back to 2003, asserted constitutional infirmities at both the guilt and sentencing phases.
And he won. Last July, the district court granted Fisher's petition. The state appealed to the Third Circuit. The case was briefed, and the Third Circuit granted oral argument. And then, at oral argument in mid-January, this happened:
JUDGE RESTREPO: This is Fisher versus Commissioner. Sir, my understanding is that you wanted to tell us something?
COUNSEL FOR APPELLANT: May it please the court, my name is Bob Falin. I'm with the Montgomery County D.A.'s office.
I no longer believe that the lower court committed error. I spent the past few days working on the case, reading the briefs, doing research, and as the hours passed the less and less comfortable I became with our position. And it dawned on me that if I, as a career prosecutor, was not feeling good about these arguments, then perhaps it was not appropriate to come and stand before the Court and argue and advocate for them. So I am conceding that, I now believe there was no error below.
At this point—and please do listen—one can almost hear the panelists' jaws drop and eyes go wide.
COURT: You're asking us to affirm the district court?
COUNSEL: Yes, your Honor.
COURT: Across the board?
COUNSEL: Yes, your Honor.
And then the apology:
COUNSEL: And I apologize to the court for the inconvenience. I know the court put many hours into it. But sometimes, in prepping for arguments, I get to have a deeper understanding of the case, and sometimes, at least this case, I came to a different conclusion than I had. And I felt compelled to ... take a different position.
COURT: Your position, just to be clear, Mr. Fisher is entitled to a new trial.
Pause. The panel recesses to confer. Returns. Promises to quickly affirm (and, two days later, the judges delivered). Plaudits issue to Robert Falin, including this from Judge Bibas:
I think it’s in Berger v. United States, the Supreme Court talked about the prosecutor’s obligation not to be winning cases but to see that justice is done. It’s not easy to come in and confess error. But we don’t reject wisdom when it comes late. And we thank you very much for your candor in bringing this to us.
What strikes me about Mr. Falin's concession is this: if one reads the district court's thorough, nuanced opinion, one can see that the state has colorable arguments here, particularly because of the hellscape that is the Antiterrorism and Effective Death Penalty Act: deference under § 2254(d), failure to develop the record under § 2254(e), harmless error, and so on. Colorable. But not ... just.
Here is a link to the Montgomery County D.A.'s Facebook page. It shows Robert Falin receiving the office's highest honor. It's five years old, but apparently it's an award that Mr. Falin keeps earning.