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.
Sunday, February 16, 2020
In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs. By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs. The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.
Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?
In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing. Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.
The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases. To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”
Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests. The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.
First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”
Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”
Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion. As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”
Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices. Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.” The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.
In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest. However, in City of Boerne, the Court held that the Act does not apply to the states. Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.
Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.” However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.
If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.
As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.
 138 S. Ct. 1719 (2017).
 See id.
 See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”).
 U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).
 521 U.S. 507, 564-65 (1997).
 See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).
 98 U.S. 145, 166 (1878).
 485 U.S. 439 (1988).
 508 U.S. 520 (1993).
 Id. at 547.
 494 U.S. 872 (1990).
 Id. at 878.
 374 U.S. 398 (1963).
 42 U.S.C. § 2000bb-1(a)(2012).
 521 U.S. 507.
 138 S. Ct. 1719 (2017).
February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)
Friday, January 3, 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.
Happy New Year! Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!
Looking for what to watch in your practice area in 2020? On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.
US Supreme Court Opinions and News:
- Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here. In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”
- The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.
- The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
- Court will also hear a decades-long legal battle over water between Florida and Georgia. Listen to (or read the transcript of) the NPR report here.
Federal Appellate Court Opinions and News:
- The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data. Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.” The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.” See order and reports from Reuters and Washington Post.
- The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England. Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.
- The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent. See reports from NYT, Washington Post, the AP, and Reuters.
- Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision, “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.
Other Appellate News
The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here
Wednesday, December 18, 2019
Persuasion Is in the Eye of the Beholder: The Value of Giving the Audience What It Wants, Not just What You Think It Needs
Being a persuasive advocate depends on many things, including the strength and appeal of the message, the delivery, and the audience. This post focuses on the value of considering audience preferences to increase persuasiveness. People are persuaded the most by what they value or what resonates with them. We know from systems like Emergenetics1 and Myers Briggs2 that people have preferences in what types of information they value in decision making. To generalize, some people focus on data to drive their decisions, so an argument that would most resonate with such a person would be an argument that is grounded in data. Others value the impact that a decision might make on a group of people, so an argument that explains the impact of a decision on that group would be best. Others value process and consistency, and still others focus on the big picture, such as moving the law forward for the most people. While the advocate will not have a psychological profile on each judge or audience member in advance of an argument, the advocate would be wise to learn about and recognize the different personality types and ensure that arguments are given that provide a little bit of everything to appeal to the various preferences identified. Moreover, as the advocate learns what motivates the decision maker, the advocate should adjust arguments accordingly.
When an advocate appears before a judge frequently, the advocate may learn what the judge tends to value. Just as important, if not more, the advocate must use listening skills to learn what a judge or judges value during an argument. Listening to questions coming from a judge or other decision maker, the advocate can identify and then address the judge’s concerns. When a judge asks a question, the judge is identifying to the advocate his or her concerns or the concerns of other audience members. Too many times, advocates prepare and deliver arguments without adjusting to address these concerns, missing the opportunity to provide the information that will most resonate with the judge. Agility by the advocate can pay dividends in persuasiveness.
For example, some of the most agile advocates are teenagers who become expert at reading their parents’ unspoken reactions and adjusting their arguments to address their parents’ concerns. The teenager wants to attend a party on a Friday night and begins the argument to the parent by explaining that the parent should allow the teenager to attend the party because everyone will be there. The parent reacts negatively to this argument. The savvy teenager then pivots to an argument based on how attending the party will give the teenager an opportunity to get to know some of the parent’s friends’ children. If this argument works, the teenager closes. If this argument does not work the teenager shifts to an argument based on how attending the party will put the teenager in a better position to get elected to a school position the teenager knows the parent would like the teenager to hold. This dance continues until either the teenager persuades the parent or the parent ends the conversation. The teenager is not likely trained in advocacy; the teenager instinctively realizes that he must appeal to what the parent values to get his way.
In the same way, the advocate needs to listen and be attentive to judges’ concerns and cues. After all, the advocate wants to provide the information the judge needs to find for the advocate’s position. Research shows that decision makers are most persuaded when “requests are congruent with our values, self-image, and future goals. In other words, people are easily persuaded of that which they wanted to do in the first place.”3
Therefore, to increase persuasiveness, advocates need to speak to the judge in the language that will most resonate with that judge. Advocates can benefit from studying the personality systems referenced herein, which provide information on how best to give each judge or audience member what he needs to make decisions.
1See Emergenetics International, www.emergenetics.com.
2See The Myers & Briggs Foundation, https://www.myersbriggs.org/my-mbti-personality-type/mbti-basics/home.htm?bhcp=1.
3Tomas Chamorro-Premuzic, Persuasion Depends on the Audience, Harvard Business Review, https://hbr.org/2015/06/persuasion-depends-mostly-on-the-audience (June 2, 2015).
Sunday, November 17, 2019
It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.
But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?
Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.
First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.
Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.
Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.
Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.
Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.
Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.
Saturday, November 2, 2019
On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas, where the Court will consider whether the Eighth and Fourteenth Amendments permit states to abolish the insanity defense. Currently, Kansas does not allow defendants to plead insanity; instead, a defendant may argue that a mental illness negated the mens rea element of a crime.
By way of background, forty-six states permit defendants to plead insanity as a defense. Only four states – Kansas, Montana, Idaho, and Utah – have abolished the defense. The legal standard for proving insanity, however, varies depending on the state within which the crime was committed. Some states apply the M’Naghten rule, which requires a defendant to demonstrate that, due to mental illness or defect, the defendant did not appreciate the wrongfulness of the conduct at issue or understand that the conduct constituted a crime. Other states have adopted the Model Penal Code’s standard, which states that a defendant with a diagnosed mental illness is absolved of criminal responsibility if the defendant either failed to understand the criminality of his or her actions or, due to such illness, was unable to act within the confines of the law. A few states have adopted the irresistible impulse test, which states that a defendant is absolved of criminal responsibility if the defendant was unable to control his or her actions, even if the defendant knew that such actions constituted a crime. Finally, at least one state has adopted the Durham test, which absolves a defendant of culpability if the crime was considered to be the product of mental illness.
Importantly, however, regardless of the legal standard that is adopted in a particular jurisdiction, the insanity defense is rarely used and, in most instances, is not successful. Indeed, some studies report that defendants plead insanity in one-percent of felony cases and are only successful in approximately twenty-five percent of those cases. The reason for such a low success rate is arguably due, at least in part, to the fact that it is extremely difficult for defendants to demonstrate that they did not know the difference between right and wrong (i.e., that their actions were criminal), that they could not control their actions, or that their actions were exclusively the product of mental illness. Put differently, a defendant may suffer from a serious mental, psychological, or cognitive impairment, but if the defendant nonetheless knew that a particular action was a crime, those impairments, regardless of their severity, will not preclude a finding of guilt. Not surprisingly, therefore, prisons throughout the United States are occupied by many prisoners who suffer from diagnosed mental illnesses. Additionally, even where a defendant is found not guilty by reason of insanity, the result is often worse than the punishment that a defendant would have faced upon conviction. In New York, for example, an individual found not guilty by reason of insanity may spend years in a psychiatric institution and, in some instances, for a period of time that exceeds the maximum sentence of imprisonment to which the defendant may have been subject if convicted.
This is not to say, of course, that the standards used to prove insanity are without justification. Arguably, the law should not allow defendants to claim that having a mental illness entirely absolves them of culpability and punishment for criminal conduct. Doing so would allow scores of defendants to escape responsibility for culpable criminal behavior. And such an approach would likely stigmatize the mentally ill and perpetuate the empirically disproven belief that individuals with mental illnesses are more likely to commit crimes. It is to say, however, that the issue before the Supreme Court in Kahler – whether the Eighth and Fourteenth Amendments prohibit states from abolishing the insanity defense – will not consider the broader problem with the insanity defense, namely, that the M’Naghten, irresistible impulse, and Model Penal Code standards make it difficult, if not impossible, to prove insanity and, in so doing, leave defendants with mental, psychological, and cognitive impairments without meaningful legal protections at the guilt and sentencing phases.
Put differently, defendants with severe mental illnesses who fail to satisfy the insanity defense’s exacting standard are often subject to lengthy periods of incarceration that are similar to defendants who have no history of mental illness. Also, since the insanity defense is rarely used and, when used, is not likely to succeed, the issue in Kahler – whether a state may abolish the insanity defense – is, as a practical matter, inconsequential. Moreover, the Court’s decision will almost certainly not address the broader problems with the criminal justice system, namely, how it considers mental illness in culpability determinations, how it treats mentally ill prisoners once incarcerated, and how it assists mentally ill prisoners to reintegrate into the community upon release. The manner in which states confronts these issues will directly impact the criminal justice system’s efficacy, particularly regarding recidivism rates.
Ultimately, therefore, the answers to these difficult issues will likely require resolution through legislation at the state and federal level. And allowing states to adopt alternative approaches to adjudicating insanity – as Kansas has done – may reflect a productive starting point. Other proposals may involve embracing a middle ground in which courts recognize that defendants with diagnosed mental illnesses, although culpable in some, if not many, circumstances nonetheless warrant reduced sentences that incorporate a rehabilitative component and an increased focus on facilitating a successful re-entry into the community upon release. Another approach would be to recognize, as some states already do, that the concept of mens rea includes a moral, not merely a volitional component. This would require proof that the defendant intended to commit a criminal act, that the defendant understood that the act was morally wrong, and that the defendant consciously, and without mental, psychological, or cognitive impairment, chose to commit the act. This will lead to an understanding of mens rea that includes moral culpability within the definition of legal culpability. In any event, do not expect Kahler to resolve much, if anything, regarding the insanity defense, even though the defense is long overdue for principled reforms.
 See Amy Howe, Argument Analysis: Justices Open New Term With Questions and Concerns About Insanity Defense (Oct. 7, 2019), available at: https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.
 See id.
 See The Insanity Defense Among the States, available at: https://criminallaw.uslegal.com/defense-of-insanity/the-insanity-defense-among-the-states/.
 See id.
 See id.
 See id.
 See Christopher Liberati-Constant and Sheila E. Shea, You’d Have to Be Crazy to Plead Insanity: How an Acquittal Can Lead to Lifetime Confinement, available at: https://www.nysba.org/Journal/2019/May/‘You_Have_to_Be_Crazy_to_Plead_Insanity’/ (“While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000”).
 See Inside the Massive Jail that Doubles As Chicago’s Largest Mental Health Facility (June 2016), available at: https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/the-burden-of-mental-illness-behind-bars.
 See Mac McClelland When ‘Not Guilty’ Is a Life Sentence, available at: https://www.nytimes.com/2017/09/27/magazine/when-not-guilty-is-a-life-sentence.html.
 Ghiasi, N. & Singh, J. (2019). Psychiatric Illness and Criminality. Retrieved from: https://www.ncbi.nlm.nih.gov/books/NBK537064/.
Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research. Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools. Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar. As new lawyers, especially if they start in small or solo practices, they will need access to free tools.
Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more. Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance. See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).
There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery. See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH: Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com. For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019).
In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org. According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.” Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe. The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online.
Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel. See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/. A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned.
For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as: “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.” Next-Gen. Lgl. Res. Platforms, ACB. In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:
(1) “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.” Judicata has free and subscription-based services.
(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”
(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”
I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms. I hope these sources are helpful to you as well. Happy research, everyone!
Tuesday, October 29, 2019
No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.
When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts. Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before. In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.
Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.
It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases. The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.
One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.
This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.
 Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).
 See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).
 See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).
 Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.
 See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).
October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Sunday, October 20, 2019
On October 4, 2019, the United States Supreme Court granted certiorari in June Medical Services v. Gee, where the Court will consider whether a state law requiring that abortion providers obtain hospital admitting privileges constitutes an “undue burden” on a woman’s right to access abortion services. The Court’s decision in June Medical Services will directly impact the extent to which women can obtain abortions and, concomitantly, address the extent to which states may restrict abortion access.
By way of background, in Roe v. Wade, the Court held that the right to privacy under the Fourteenth Amendment includes a woman’s right to obtain an abortion. In so holding, the Court established a trimester framework in which women have a largely unrestricted right to obtain abortions during the first trimester; in the second trimester, the states could only regulate abortions to preserve a woman’s health, and in the third trimester the states could prohibit abortions except where necessary to protect a mother’s health. Nearly twenty years later, in Planned Parenthood v. Casey, the Court upheld Roe, but rejected the trimester approach and held that abortion restrictions would be invalidated if such restrictions constituted an “undue burden” on a woman’s right to obtain an abortion.
In the wake of the Court’s decisions in Roe and Planned Parenthood, some states developed a strategy to eviscerate abortion rights by enacting legislation that, while not directly challenging Roe, placed significant restrictions on women’s access to abortion. Most recently, in Whole Women’s Health v. Hellerstedt, the Court considered whether a Texas law requiring abortion providers to obtain hospital admitting privileges unduly burdened a woman’s right to access abortion services. Supporters of the law argued that the admitting-privileges requirement sought to facilitate access to a hospital in the event that complications arose during or after an abortion. In a 5-4 decision, the Court rejected this argument, holding that abortion procedures in Texas “were extremely safe with particularly low rates of serious complications,” such that women only experienced complications in one-quarter of one percent of cases. And when complications did occur, they rarely required hospital admission. Additionally, the Court held that the law would likely lead to the closure of many abortion clinics in Texas and require thousands of women to travel more than 150 miles to obtain an abortion. Thus, given that the law offered no tangible benefits – yet imposed substantial burdens on many women in Texas – the Court deemed it unconstitutional. The Court’s decision, however, did not resolve this matter.
In June Medical Services, the Court will again decide the constitutionality of a strikingly-similar law in Louisiana that, like the Texas law, requires abortion providers to obtain hospital admitting privileges. The reason for granting certiorari may be due to the Court’s composition, which has changed significantly and now includes Justices Neil Gorsuch and Brett Kavanaugh, or may involve facts specific to Louisiana that render the consequences of its law far less significant. Notwithstanding, the fact that the Louisiana law is, for all practical purposes, identical to the Texas law suggests that the Court will re-examine Whole Women’s Health and adopt one of three approaches. First, the Court may affirm Whole Women’s Health and hold that the law constitutes an undue burden on a woman’s right to obtain an abortion. Second, the Court may distinguish the facts in Whole Women’s Health from June Medical Services and therefore issue a narrow ruling. Third, the Court may overturn Whole Women’s Health and, in so doing, create uncertainty regarding what precisely constitutes an “undue burden” on the right to abortion, and create doubt regarding whether Planned Parenthood and Roe will be overturned in the future.
Regardless of one’s opinion concerning abortion, these cases underscore a larger problem with the Court’s abortion jurisprudence: the failure to adopt a categorical rule that firmly establishes and resolves the contours of abortion rights. Indeed, the Court’s adoption of the “undue burden” standard in Planned Parenthood was so vague and imprecise that it empowered states to enact statutes that arguably sought, under the guise of protecting women’s health, to do indirectly what they could not do directly: overturn Roe. The recent passage of “heartbeat” laws that prohibit abortions at any point after a fetal heartbeat is detected, which occurs at approximately six weeks into a pregnancy, is another example of the states’ efforts to weaken Roe and its progeny.
This is not to say, of course, that those who support such laws and oppose abortion are unprincipled in their convictions or misguided in their beliefs. Certainly, reasonable people can disagree concerning whether abortion should be legally and morally acceptable. It is to say, however, that the Court would better serve legislators, lower courts, litigators, and the public by adopting a categorical rule regarding the right to abortion rather than a vague, overly general, or unworkable standard. In so doing, the Court can prevent uncertainty in the law and provide a firm – and lasting – resolution. Put simply, regardless of how the Court rules in June Medical Services, it should do so in a manner that finally lays to rest any questions regarding the constitutional right to abortion.
 No. 18-1323 (2019).
 410 U.S. 113 (1973).
 505 U.S. 833 (1993).
 579 U.S , 136 S. Ct, 2292 (2016). The law stated that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (quoting Tex. Health & Safety Code Ann. §171.0031(a)).
 Id. at 2311.
 Id. (internal citation omitted).
 See, e.g., Renae Reints, The Are The States That Passed ‘Heartbeat Bills,’” (May 31, 2019), available at: https://fortune.com/2019/05/31/states-that-passed-heartbeat-bill/.
Wednesday, October 16, 2019
Advice about appellate advocacy is abundant. How to begin; how to structure an argument; how to respond to questions; how much deference to show to the judge(s); whether to reserve time for rebuttal—these are all things the advocate should consider when preparing for oral argument. The best advocate should also experience a bit of anxiety. Not crippling anxiety; just enough anxiety to get adrenaline flowing; just enough anxiety to evidence that the advocate appreciates the gravity of the task and the client’s cause. “Situational anxiety, if it’s proportionate to the circumstances in which it arises, can have quite a positive impact.”1
Situational anxiety associated with public speaking is common. In fact, public speaking is ranked highly among things and situations people fear the most, along with snakes and spiders.2 Most law schools require law students to perform some public speaking, from responding in class as part of a Socratic dialogue to delivering a trial level or an appellate level oral argument as part of a moot court exercise. Some law students walk away from these experiences believing that public speaking is not for them because they are anxious about making oral presentations. Others learn to thrive from the rush they feel when under the pressure of public speaking. Law professors and lawyers who mentor students and new lawyers should help students and new lawyers recognize that not only is this situational anxiety good for them, it is also good for their clients. And, it is not unusual. If law students and lawyers could recognize that some level of anxiety is healthy because it shows that the speaker cares about and recognizes the gravity of the task, perhaps some of these students and lawyers would reconsider their perceived aversion to public speaking.
As I prepared for one of my first oral arguments, a mentor advised me that some level of anxiety before an oral argument is healthy. Anxiety borne from a desire to represent your client and your client’s position to the best of your ability, combined with preparation, is good. I would even argue that it is necessary. I have told students that the client who has a lawyer who is not nervous about delivering an argument needs a new lawyer. I think I may have read that somewhere many years ago. Arguably, if the lawyer has no anxiety about delivering the oral argument, then perhaps the lawyer does not care enough and will not be energized enough to deliver a passionate argument. People do not get nervous or worry much about things for which they do not care.
Science supports this theory. Dr. Loren Soeiro explains: “Anxiety helps us detect and attend to potential threats so that we can avoid danger. In the short term, anxiety can keep you at a heightened state of alert, allowing you to react more quickly when urgent dangers arise—like when you’re driving anxiously in the rain, and you find yourself responding immediately to erratic changes in traffic patterns.”3 He explains that if you face no anxiety when facing life-changing events and choices, you may end up missing something important because you will not fully think through what is going on.4 Situational anxiety serves to enhance your motivation to work hard and perform well, and it boosts your performance levels.5 It can also improve memory and lead to “responsible leadership.”6 “At significant moments when performance becomes an issue, the right amount of anxiety will help us do that much better.”7
Thus, for the law student or lawyer called upon to represent a moot or a real client, situational anxiety can provide just what is needed to ensure that the advocate is giving the task and the client his or her all, both in preparation and in execution.
Educators and mentors of law students and lawyers should be sure to share this message. Doing so will help to normalize what these students and lawyers may be feeling and allow them to recognize and accept the positive aspects of what is ordinarily considered negative. Moreover, as first generation law students and lawyers enter law schools and the profession, it is especially important to educate these newcomers on the value and, indeed, the routine occurrence of the situational anxiety lawyers experience. These newcomers to the field may lack the opportunities to hear from seasoned lawyers about the anxiety that is common and can be helpful. Recognizing and embracing the kind of anxiety every client’s lawyer should experience before and during an oral argument or presentation should lead to better lawyering and perhaps more well-adjusted lawyers.
1Loren Soeiro, 3 Reasons Why Anxiety is Good for You, Psychology Today, May 20, 2019, https://www.psychologytoday.com/us/blog/i-hear-you/201905/3-reasons-why-anxiety-is-good-you.
2Kendra Cherry, 10 of the Most Common Phobias, Verywell Mind Blog, https://www.verywellmind.com/most-common-phobias-4136563 (last updated October 3, 2019) (explaining that fear of public speaking is the most common form of social phobia).
3Soeiro, supra note 1.
5Id. (noting that “[r]esearch indicates that student-athletes who feel anxiety are able to perform better in their events — and on college exams! — than those who denied feeling worried.”).
Tuesday, October 8, 2019
The United States Supreme Court is under attack on a variety of fronts. Public confidence is declining and coverage in the press is largely negative. Information regarding deliberations, once considered confidential, is freely leaked. And senators write amicus briefs openly threatening court packing legislation if the Court does not rule a certain way.
One of the critiques concerning the Court is that the justices seem to be above the same rules that guide other judges. This is, in fact, true. There is no code of ethics for the United States Supreme Court. And for good reasons.
Chief Justice Roberts presides over an office known as the Judicial Conference of the United States, which worked with the ABA to create and promulgate the Code of Conduct for Federal Judges in 1973 and continues to revise and update those rules. The code applies to all U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, and magistrate judges. Conspicuously missing from that list are "United States Supreme Court Justices."
This lack of an ethical code means that some of the conduct recently criticized - leaks concerning confidential deliberations, criticism of political candidates, speeches at partisan legal organizations, and charitable fundraising efforts, to name a few - is not governed by the same rules that would apply to other federal judges. As a result, there have been several legislative efforts to impose a code of ethics on the Court.
Justice Roberts addressed this issue in his 2011 Year-End Report on the Federal Judiciary. Justice Reports revealed that the members of the Court do, in fact, consult the Code in assessing their ethical obligations. Just as the Code "provides guidance" to lower judges, it informs their actions. And, while there are separation of power issues that might be raised in objection, the Court also voluntarily complies with other legislative enactments, such as financial reporting requirements and limitations on gifting and outside income.
This reference to separation of powers is an important one. According to Article 3, Section 1 of the Constitution, Supreme Court Justices serve as long as they exhibit "good behavior," and under Article 2, Section 4, they face impeachment and removal only for "treason, bribery, or other high crimes and misdemeanors."
This separation from political control creates a problem with binding ethical rules for the Justices. Would legislation imposing such rules violate the separation of power doctrine? Who would determine the constitutionality of such an imposition if not the Supreme Court itself? Would authorizing the Judicial Conference, instead, to make ethical rules that are binding on the Supreme Court violate the Constitutional provision mandating that the Supreme Court is to remain "supreme" over all other courts, since the Conference is primarily composed of judges from lower federal courts? And what power would Congress have to enforce any legislation it tried to pass if the Supreme Court did not comply?
These are all extremely difficult questions that, so far, have been dodged by voluntary compliance with the legislation that has been passed. It seems unlikely that any legislation imposing a set of ethical rules on the Court (and there have been bills introduced since the 1970s to do so) will pass, given these obstacles.
That does not mean that the Supreme Court operates above the law. It just means that the justices operate under their oaths of office to fairly and impartially administer the law as the supreme and final arbiter of that law. As Justice Roberts noted in his year-end report, "at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."
Without venturing too deeply into legal history*, this usage of the Code as a form of moral guidance is not new. The original canons were promulgated in 1908 by the ABA in reaction to the charge by President Roosevelt in a 1905 Harvard commencement speech that there be a public requirement that "all men of means, and especially the men of vast fortunes, ... set up an example to their less fortunate brethren, by paying scrupulous heed not only to the letter but to the spirit of the laws, and by acknowledging in their heartiest fashion the moral obligations which cannot be expressed in law, but which stand back of and above all laws." Specifically, Roosevelt's critique of lawyers as "hired cunning" more interested in commercialism than justice struck a strong progressive chord a the time, and resulted in the eventual adoption of the broader canons that governed the profession for so many years in much broader moral strokes than the Code that eventually replaced them.
The Court's usage of the Code, then, as a starting moral guidepost is in keeping with history. The Court has also indicated that it may be considering adopting its own Code in response to recent criticism. This, too, would be in keeping in history and our new populism. But if there is to be some more binding form of ethical guidance, it likely will have to come from the Court itself.
* For more reading on the history of the 1908 Canons see James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395 (2003).
(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/.)
Tuesday, October 1, 2019
Teaching legal writing to first year law students can be humbling. Though the students are unfailingly enthusiastic and extremely trusting of my alleged expertise, occasionally an innocent question exposes just how little I really know about the law. One discussion that humbled me recently concerned the weight of authority. The concepts seem straightforward enough, and once students begin researching independently, they become keenly aware of the need to sort the seemingly infinite cases they can find by the weight they will carry for a hypothetical judge. But my students’ eyebrows rose when they learned that some court decisions, though readily available in a variety of online fora, are “unpublished,” and thus cannot be relied upon by advocates in future cases. And sadly, a legal writing professor assuring them “that’s just the way it is” provided cold comfort for 1Ls. So I wanted to take some time to think through just what does, or does not, justify keeping some decisions “unpublished” in the Google era.
Appellate Courts have long relied upon unpublished decisions in a significant number of cases, with estimates suggesting that over 80% of federal appellate court decisions are unpublished. Unpublished decisions are designed to serve several straightforward goals. First, limiting the number of published opinions should simplify the legal research process for litigants; the fewer potentially relevant cases lawyers must sift through, the easier (and cheaper) litigation becomes. Second, limiting the number of published opinions should render appellate court judging more efficient. Judges can focus their energy on perfecting their opinions in the most complex cases on their dockets, while clerks can compose most of the details in the majority of unpublished decisions of the court.
But these justifications are less compelling today, when nearly every document produced in appellate courts is readily available online. Even if litigators follow the letter of local rules against citation of unpublished decisions, they will often refer to the reasoning present in an unpublished decision to buttress their arguments. They may even be tempted to directly quote from an unpublished decision, then simply drop a footnote to acknowledge that the decision has no precedential value. The proliferation of unpublished decisions thus seems not to simplify the research process for litigants. Both parties feel obligated to sift through unpublished authorities to avoid yielding some advantage to their opponent. The distinction between published and unpublished decisions can even make the litigation process more complex. It forces litigants to first scour traditional and non-traditional resources to obtain digital copies of the supposedly “unpublished” decisions raising similar issues, then to assess the degree to which they should rely upon those decisions in their briefs. The reliance question is especially troublesome in appellate courts where the parties will not learn which panel of judges will hear the case, and thus cannot assess the unique views of the panel about arguments based upon unpublished decisions until well after the written briefs have been filed.
Furthermore, the promised efficiency gains for appellate court judges seem far-fetched in the digital era. Judges are fully aware that unpublished decisions are just as readily available for the legal community to review, and criticize, as published ones. Judges must therefore exercise the same care in crafting those decisions as published opinions. Furthermore, the choice to qualify a decision as unpublished often signals the author’s lack of confidence in the outcome. It seemingly invites higher courts to closely examine, and perhaps overrule, those decisions.
Perhaps all is not lost, though, for unpublished decisions if the rules that set out their use are modified to coincide with a different goal: streamlining litigation where some issues are so clear that no written decision is required. For example, perhaps appellate court rules could allow judges to enter a partial summary remand order addressing specific, clear errors, then retain jurisdiction in case any appellate issues remain viable following the remand. This would allow the court to explain that some issues are obvious enough to be addressed without a published decision, but retain jurisdiction to address more complex issues that may remain. Courts could also avoid issuing even an unpublished decision where the only issue raised is simple. Perhaps where error is clear, a per curiam order remanding without opinion at all is appropriate, both to quickly resolve the litigation and to avoid creating quasi-precedent that future litigants must research. Courts would need to avoid over-reliance on that method so that the reasons for their decisions are consistently publicized to litigants and the public, but the promise of streamlined litigation in many cases may be worth the risk.
In lieu of those dramatic shifts, appellate courts could adopt a more subtle change to the rules for citing unpublished decisions. Appellate courts could expressly permit occasional citations to an unpublished decision, such as in cases where “no published opinion would serve as well to illustrate the argument of the parties.” Such a rule admittedly introduces a difficult standard for litigants and courts. But perhaps such candid acknowledgement that every decision is “published” in the Google era is worthwhile.
 “From 2000 to 2008, more than 81% of all opinions issued by the federal appellate courts were unpublished.” Aaron S. Bayer, Unpublished Appellate Opinions Are Still Commonplace, The National Law Journal, Aug. 24, 2009 (citing Judicial Business of the United States Courts: Annual Report of the Director, tbl. S3 (2000-2008)).
Tuesday, September 24, 2019
Earlier this month, CNN reported that Judge Roberts had supported the administration's ability to add a citizenship question to the census before he had decided to oppose it. According to "sources familiar with the private Supreme Court deliberations," Roberts had, to use a political term, flip-flopped. This seemed to be supported by the opinion, which began by noting the broad power of the relevant agency to include questions about citizenship, but eventually concluded that it still had to provide an honest rationale for any decision to do so, and that the record indicated that the explanation provided was pretextual.
This was not the first time Roberts had been allegedly outed for changing his mind during the deliberative process. In 2012, when Roberts joined the majority to support the Affordable Care Act, the press again used insider information to show his change of mind. In that case, CBS cited to "two sources with specific knowledge of the deliberations," who detailed Roberts' journey from one side to another.
There is a very short list of who these sources might be. It is also fairly apparent that the damage to the Court is mounting, as these leaks fit into the narrative that politics plays more of a role than precedent.
Of course, judges do, and should, change their minds during the deliberative process. Simple issues are rarely appealed, and even more rarely reach this level. The complex issues involved require time to determine, and we should hope that judges maintain an open mind during this time, permitting change. And the modern "rule" of judicial silence in response to these leaks means that judges are unable to defend those deliberations.
These leaks are nothing new. As Jonathan Peters wrote for Slate after the 2012 leaks, there is a long history of leaks from the high court. This history seems to indicate that the damage done by the leaks, which are usually politically motivated, is mounting.
In the 1800's, the New York Tribune seemingly sat in chambers with the Court. Days before the Court handed down its decision in Pennsylvania v. Wheeling and Belmont Bridge Company, the Tribune reported the outcome. It then provided detailed accounts of the deliberations in the Dred Scott case. Historians have speculated that the leak came from Justice McLean, who authored a dissent in those cases.
In the 1960's, a law clerk leaked information to the New York Times about Justice Fortas and his close connection to the administration. According to the U.S. Senate website, as a sitting justice, Fortas regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured senators who opposed the war in Vietnam. When these details were revealed during his confirmation hearings to be appointed Chief Justice, along with details of a private stipend he received to teach, rather than being confirmed as Chief, he eventually stepped down from the bench.
The leaks escalated after this point. In the 1970's Justice Douglas wrote a memo to his colleagues in the Roe v. Wade case, and it reached the hands of the Washington Post. Time then published a story about Roe v. Wade before the decision was announced by the Court, detailing the votes. Believing that a law clerk was again to blame, Justice Burger created the "20-second rule," meaning any clerk caught talking to a reporter had no more than 20 seconds left as a clerk before being fired.
Of course, the 20-second rule only applies to current clerks. Thus, in 2004, a group of former clerks leaked the details of the deliberations in Bush v. Gore to Vanity Fair.
Some of the leaks have been remarkably detailed. In 1986, ABC reported not only the outcome but the actual vote break-down before the decision was handed down regarding the Gramm-Rudman-Hollings balanced budget act. It also disclosed the date the decision would be handed down, a forecast that was off a few days reportedly only because Justice Burger delayed the release so that the reporter would be wrong about something.
This brief history gives some clue as to who the most likely sources might be. But whether it is a judge or a clerk (and it seems unlikely that it could be anyone else), they are damaging the Court at a time when it is already under serious attack.
As Justice Frankfurter noted, the secrecy of the Court's work is "essential to the effective functioning of the Court." Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955). Justice Burger considered the enforcement of this secrecy to be an essential "inherent power" of the Court. New York Times Co. v. United States, 403 U.S. 713, 723 n.3 (1971) (Burger, dissenting). Rehnquist stated in a lecture on the topic that without secrecy, the open, at times short-tempered discussions at conference would end, to the detriment of the Court and the public it serves.
Judges need to feel free to change their minds and be open with each other as they deliberate and discuss difficult issues. If leaks and reports continue to cast any change of heart during the deliberative process as being political motivated, it seems likely that the result might be a chilling of both communication and flexibility in thought. Either one would be dangerous.
(image source: Library of Congress, World War II poster from the U.S. Navy)
Tuesday, September 10, 2019
Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.
That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.
1. Amicus briefs should add something new and valuable to the case.
First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.
“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).
A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.
2. Amicus briefs should not be used for personal attacks.
Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:
Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."
Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.
Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.
3. Amicus briefs should not inject extrajudicial facts or junk science.
Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.
Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.
Monday, September 9, 2019
While many lawyers might think that being a judge would be an ideal job, we sometimes forget that judges generally* don't get to pick their cases. So, once a judge is assigned a case, he is stuck with it (unless, of course, he can get rid of it under some justiciability doctrine).
It turns out, however, that there is another way to get rid of a case, at least according to the Court of Appeal for Ontario, Canada. A three justice panel of the court heard an appeal in a real estate matter. According to a news story, the case concerned failed real estate investments. The plaintiff "was to provide second mortgage financing for real estate units, but they were never 'renovated, rented or sold, as anticipated,' and the mortgages went into default." The plaintiff "was trying to recover amounts that were due under second mortgages and stand-alone guarantee agreements signed by individual defendants." At issue were a choice of law and statute of limitations questions.
The appellate court issued its opinion on May 27, 2019. However, one of the justices who signed on to the opinion had not heard the case. Apparently, according to a later opinion, "One of the members of the panel that heard the appeal . . . was not provided with either the draft judgment for review or the final judgment for signature. The judgment was signed, in error, by another justice who was not a member of the panel that heard the appeal."
After being made aware of the problem and submitting briefs on the matter, one of the parties suggested that the omitted justice just review the opinion and either "assent to or dissent from" it. The court, however, disagreed. It said "The panel of judges that rendered judgment was not the same panel that heard the appeal. . . . The decision-making process has been compromised and this panel cannot render a judgment." The panel concluded that "the appeal must be re-heard by a differently constituted panel of the court."
Having clerked for an appellate court, albeit an American one, I have no idea how this could happen. The news story that I saw on the case didn't shed any light on the cause of the error either. It quotes a senior legal officer for the court who said that there were "several procedures in place to prevent such mistakes" and who called the error "rare." I would hope it would be rare! I would be curious to know how much the court's mistake has cost the parties in additional legal fees--not only did they have to submit additional briefs, the case now has to be reargued.
Fortunately for the parties, a new panel will hear the case on the expedited schedule. Hopefully they will get their issues resolved soon.
*Courts with discretionary review, like the U.S. Supreme Court, certainly do have control over their dockets.
Tuesday, July 23, 2019
Today begins the Fourteenth Annual NAACA (National Association of Appellate Court Attorneys) Conference, where staff attorneys from state and federal appellate courts will gather together to celebrate their unique positions in the appellate system, to relax, to fellowship, and to educate themselves. When I was working as a staff attorney, I looked forward to the conference and served on the education committee, planning sessions and finding speakers. The conference is one of the best conferences I have attended in terms of legal education, resulting in several hours of available CLE credit each year.
What I enjoyed most was being able to talk to colleagues from around the country, and learn from their experiences. After Katrina, I had the opportunity to go to New Orleans and learn how the floods had impacted the administration of justice, and how the courts were learning from that experience and were adjusting their methods of storing documents. From my colleagues around this country, I learned about management, and efficiency, and devotion to one’s calling.
This week, I tip my hat to you. I hope your conference is filled with excellent sessions, good food, and heartwarming fellowship.
Monday, July 22, 2019
Today, Justice John Paul Stevens lays in repose at the Supreme Court. Later, he will be buried at Arlington National Cemetery. Justice Stevens died last Tuesday at ninety-nine years old, after retiring from the Supreme Court in 2010 at ninety. When he retired, he was the third longest serving Justice in Supreme Court history.
President Ford, a Republican, nominated Justice Stevens, who became a leader of the liberal voices on the Supreme Court. According to Jan Crawford Greenburg in her 2007 book, Supreme Conflict: The Inside Story of the Struggle for Control of the United States, Justice Stevens “was a Maverick who didn’t ascribe to a particular theory. He was fiercely independent in his writings and actions. When the justices donned their robes before taking the bench, Stevens was the only one who refused assistance from the aides in the robing room. He always insisted on putting on his own robe. He took his own path in his opinions, too.”
Live coverage at the Supreme Court today on C-SPAN:
A biography of Justice Stevens at Oyez.org:
Paul Clement’s Tribute on SCOTUSblog:
Tuesday, April 30, 2019
In my last article I commented briefly on the political history of the selection and number of justices on the Supreme Court of the United States. As I was writing that piece, a committee was taking testimony in the Texas legislature on a bill attempting to change the Texas judicial selection process. While federal judicial selection is largely a set process, the method of selection of state judges is an experiment in democracy that continues to change today.
Prior to the mid-1800s, most states selected their judges in a way that mirrored the federal system – gubernatorial appointment with legislative confirmation - with a minority of states using direct legislative selection. The Jacksonian era saw a renewed concern with accountability and public participation, and this led to rapid change. In 1832, Mississippi became the first state to switch to a popular election for judges. After a few years of observation, New York and several other states followed suit. By 1861, 24 of the 34 states used the new election system.
There have been several experiments since. Nonpartisan elections were used by 12 states in 1927. Since 1940, over thirty states have adopted some form a system of appointments (either solely gubernatorial or gubernatorial selection from a merits-based nomination system, which is called the “Missouri plan”) with nonpartisan retention elections. Today, only ten states use some kind of partisan election process to select their high court justices, and only five states rely solely on partisan elections.
My home state of Texas is one of them. In the most recent election cycle, for reasons that political wonks can (and do) argue about endlessly, this resulted in a seismic shift on the bench. 35% of all intermediate appellate justices were replaced. One-fourth of all trial judges, at all levels, were also replaced. Four of the largest state appeals courts flipped along partisan lines. By one count, over 700 years of judicial experience were removed from the bench.
The response has been a re-evaluation of the method the State uses for judicial selection. Official committees have been formed to re-evaluate judicial selection and qualification, and there has been vigorous debate over the pros and cons of each system.
The hearing on HB 4504, proposing a new judicial appointment and retention vote system (similar to the "Missouri plan"), covered the gambit of options and perils. Chief Justice Nathan Hecht framed the discussion in terms of the inherent conflict between impartiality and accountability. To be truly impartial, judges must be free of outside influence. At the same time, there must be some accountability for their stewardship of power. But if a judge rules contrary to popular opinion in order to remain impartial, yet is subject to removal through election by that same population, this balance is imperiled.
Calling partisan election an “utter failure,” Hecht opined that partisan election often means there is no true accountability for judges, since the focus is on partisan affiliation rather than performance. He also warned against the risk to impartiality in such a system:
If you want judges who rule in favor of the Republicans or Democrats, in favor of the left or the right, in favor of the establishment or the outsiders, in favor of the rich or the poor, then we should keep partisan judicial elections. But be clear - today, tomorrow, or the day after, the powerful will win that struggle.
Former Chief Justice Wallace Jefferson, the first African American member of the Supreme Court of Texas, while supporting the system, acknowledged that any system needs to increase diversity on the bench, and briefly discussed the impact of implicit biases based on different life experience. Former Chief Justice Tom Philips also supported the bill, asserting that for the vast majority of judges, the partisan label is meaningless, because they seek to serve the people and follow the law. Partisan labels, however, serve to undermine faith in their decision-making. Other practitioners spoke out against partisan elections because the cost in terms of the loss of judicial experience is too high when those elections result in sweeps, and because the system prevents some well-qualified candidates from ever running.
Speaking against the bill, Judge Eric Moyé, a longtime Dallas District Court judge, started with a reference to the importance of local government and local citizen control. Noting that judges are the most direct contact most citizens have with government, Moyé expressed his concern than any appointment process would bypass citizen control. Gloria Leal from the Mexican American Bar Association also testified against the bill, noting that 39% of the Texas population was Hispanic, a proportion that was not reflected on the bench (by my quick calculation of data from the Texas Office of Court Administration published on September 1, 2018, about 17% of the bench is Hispanic), and that popular election was the best way to reach a bench composition that matched the population.
In short, the testimony largely fell along the lines of the tension recognized by Justice Hecht – impartiality versus accountability. This balance was one of the many areas that Hamilton and Jefferson (as well as Madison) disagreed upon, with Hamilton arguing for a truly independent judiciary in Federalist 78, while Jefferson was primarily concerned that the judiciary remain accountable to the people through elections. Over the years, the various states have experimented with numerous ways to maintain that balance.
As an appellate practitioner who appears in different jurisdictions, I can say that by-and-large, these various systems get it right. The professionalism and integrity of our judges is, in fact, remarkable, given the various selection processes and pressures to which they find themselves subjected. This continued discussion, though, is important to ensuring that this remains the case. Only so long as the judiciary remains both impartial and accountable, through whatever procedures and safeguards we can refine, can we ensure a healthy system with judges who are qualified and willing to serve.
(Image credit: Thomas Nast’s cartoon “Princip-als, Not Men – A Lawyer Pleading for his “Client,” Harper’s Weekly, August 7, 1875, showing Nast’s fear that wealth was influencing the bench in its decisions regarding Tammany Hall. The sign on the bar is a quote from King Lear: “Plate sin with gold, and the strong lance of justice hurtless breaks. Arm it in rags, a pigmy’s straw doth pierce it.”).