Appellate Advocacy Blog

Editor: Charles W. Oldfield
The University of Akron
School of Law

Sunday, February 18, 2024

Reflections on the Supreme Court’s Oral Argument in Trump v. Anderson

The oral argument in Trump v. Anderson indicated that the United States Supreme Court would reverse the Colorado Supreme Court’s decision disqualifying Donald Trump from the ballot.[1] In fact, the Court’s decision will likely be unanimous for three reasons.

1.    Affirming the Colorado Supreme Court's decision would enable states to disqualify different candidates and thus create a lack of uniformity among the states regarding which candidates voters could select. 

If the Supreme Court affirmed the Colorado Supreme Court’s decision, then Texas and other conservative states could disqualify President Biden from the ballot based on whatever subjective definition of insurrection they adopted, while liberal states could likewise disqualify Donald Trump. Imagine living in a world where, for example, ten states prohibited its citizens from voting for Trump while eight states prohibited its citizens from voting for Biden. Such a result would disenfranchise millions of voters and, as Chief Justice Roberts stated, enable a handful of states to decide the presidential election. Nothing could be more anti-democratic, at “war with the thrust of the Fourteenth Amendment,” and anathema to a society that values free and fair elections.[2]

Indeed, the justices recognized that affirming the Colorado Supreme Court’s decision would be far-reaching and fundamentally anti-democratic. For example, Justice Alito asked Jason Murray, the respondent’s attorney (and an outstanding lawyer), whether a state court could exclude from the ballot a presidential candidate that the court did not prefer simply because the candidate was leading in the polls. Murray answered in the affirmative – and that all but sunk Colorado’s argument.

The justices also suggested that the Colorado Supreme Court’s decision was contrary to the Fourteenth Amendment’s original purpose. As Chief Justice Roberts emphasized, the Fourteenth Amendment was designed to expand federal power and restrict state power. Thus, to conclude that the states have the power to disqualify federal candidates – particularly where the disqualification is predicated on an ambiguous provision – would be incongruous with the Fourteenth Amendment’s original purpose. For these and other reasons, Justice Kagan and Justice Barrett suggested that the question of whether a former president is disqualified for insurrection “sounds awfully national,” which is consistent with Section Five’s text, which gives Congress, not the states, the power to implement Section Three, and with the principle that there be uniformity among the states regarding who voters may select for president.[3]   

2.    Section Three of the Fourteenth Amendment is ambiguous and should not be construed to frustrate democracy.

Justice Kavanaugh and Justice Jackson explained that, unlike the Constitution’s age and nationality requirements, which are categorical and unambiguous, Section Three was susceptible to different interpretations and therefore should not be construed in an anti-democratic manner. For example, Justice Kavanaugh noted that the word “insurrection,” is broad and that Section Three contained no information concerning the procedures needed to determine whether a president was an insurrectionist. Likewise, Justice Jackson expressed concern that the President of the United States may not be an “officer of the United States” because the plain language of Section Three does not include the word “President,” therefore suggesting that the president is not within Section Three’s purview.

Given the fact that Section Three is ambiguous, why, as Justice Kavanaugh and Justice Jackson emphasized, should the Court reach an outcome that frustrates rather than facilitates democratic choice? And how should the Court resolve the issue regarding a candidate’s disqualification if states adopt different definitions of “insurrection,” adopt different evidentiary rules, and adopt different standards of proof? Colorado’s attorneys had no satisfactory answer.

3.    Affirming the Colorado Supreme Court’s decision would enable one state to decide a presidential election.

Justice Kagan rightly emphasized that, if the Court affirmed the Colorado Supreme Court’s decision, one state (or a handful, as Chief Justice Robers noted) could decide the presidential election. To be sure, some if not many states would subsequently disqualify Trump from the ballot, making the Colorado Supreme Court the primary decision maker in the presidential election. Additionally, imagine if a presidential election was remarkably close and would be decided by the outcome in one state, but that state had disqualified Donald Trump from the ballot. This would give the presidency to Trump’s opponent and disenfranchise every voter in that state who supported Trump. Of course, some state courts could decide to distinguish the Colorado Supreme Court’s decision and therefore keep Donald Trump on the ballot, but even under this scenario, there would exist precisely the disuniformity that would compromise democratic choice.

Ultimately, the oral argument in Trump v. Anderson suggests that the Supreme Court will unanimously reverse the Colorado Supreme Court’s silly decision.

What was most disappointing was to see well-respected constitutional law scholars, such as J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, and Laurence Tribe, a professor at Harvard Law School, so vehemently advocating for affirmance of the Colorado Supreme Court’s decision. Judge Luttig argued that the decision was unassailable, that Section Three’s text was unambiguous, and along with Professor Tribe, that affirming the Colorado Supreme Court’s decision was vital to preserving democracy.[4] To make matters worse, these scholars relied heavily on the Report of the January 6 Committee, even though the January 6 hearings included only committee members that were biased against Trump and even though the committee adhered to none of the evidentiary standards that a trial – and due process – requires. The fact that Judge Luttig and Professor Tribe relied on this report and championed a decision by the Colorado Supreme Court that, given the text and history of Section Three, was so obviously wrong, is troubling.

Lest there be any doubt, imagine a world in which states could disqualify candidates based on different interpretations of Section Three, different evidentiary standards, and different burdens of proof. The result would be to allow one or more states to determine the presidential election based on nothing more than disdain for a presidential candidate, and to disenfranchise millions of voters by prohibiting them from voting for their preferred candidate. That would be as anti-democratic as you can get.

Thankfully, the U.S. Supreme Court recognized this and is poised to unanimously reverse the Colorado Supreme Court’s silly decision. Democracy depends on them doing so – and they will.

 

[1] See Trump v. Anderson, Oral Argument, available at: Trump's 2024 ballot eligibility being weighed by Supreme Court | full audio (youtube.com)

[2] Id.

[3] Id.

[4] See, e.g., Enormously Important Protection of Democracy: Tribe and Luttig on CO Barring Trump from Ballot (Dec. 21, 2023), available at: ‘Enormously important protection of democracy’: Tribe & Luttig on CO barring Trump from ballot - YouTube

February 18, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, February 17, 2024

Allowing Inexperienced and Minority Attorneys More Oral Argument Time

When I was an experienced associate at a large appellate boutique, and then of counsel in a large law firm’s appellate department, attorneys at my level often offered trial court motion arguments and non-appellate brief writing to junior attorneys who were hungry for experience.  While our offers were not always completely altruistic—like when we offered “interesting” emergency weekend writs to others—we were genuinely invested in helping junior attorneys gain needed experience to better serve our clients.

In 2020, three U.S. District Judges for the Southern District of Illinois, Judge Nancy Rosenstengel, Judge Staci Yandle, and Judge David Dugan, issued orders encouraging the participation of "newer, female, and minority attorneys" in oral arguments.  As Reuters reported, under the orders, “parties can alert the judges if they intend to have a less-experienced, female, or minority attorney argue a motion.”  See Nate Raymond, Republican US Senators Seek Info on Illinois Judges' Diversity Policies, Reuters (Feb. 8, 2024).   The “judges in turn ‘strongly consider’ giving extra time for oral argument and allowing more experienced attorneys to provide the newer” counsel assistance.  Id. 

Last week, Reuters, Bloomberg Law, and Law360 all reported that a conservative legal group and two Republican U.S. Senators recently complained about the three judges’ efforts.  See Raymond, Republican US senators; Suzanne Monyak,

Courtroom Diversity Orders From 2020 Probed by GOP Senators, Bloomberg Law (Feb. 9, 2024); Courtney Buble, GOP Sens. Blast Ill. Judges' Moves For Diversity In Oral Args, Law360 (Feb. 7, 2024).  According to Stephen Miller’s organization, America First Legal, the three Southern District of Illinois judges committed misconduct by discriminating based on race and sex in the standing orders.  Here is America First Legal’s misconduct complaint to the Seventh Circuit.  Following the America First Legal complaint, two Senators on the Senate Judiciary Committee, Senators Cruz and Kennedy, wrote to the Chief Judge of the Seventh Circuit asking for more information about the standing orders.  Their letter is here.  The gist of both communications is that the three judges’ standing orders give an illegal preference through a facially discriminatory policy. 

As we wait for the Seventh Circuit to weigh in on the First America Legal complaint and the letter from the Senators, we might see other similar policies challenged.  For the past six years, the American Bar Association “has urged courts to implement plans to give new lawyers courtroom experience,” and in 2023 “passed a resolution calling on courts to allow two attorneys to argue for each client to foster that goal.”  Raymond, Republican US Senators.  Most court rules following the ABA’s resolution are facially neutral, but not all.  See generally Buble, GOP Sens

Whatever the fate of the three Southern District standing orders, experienced lawyers should  work to be stronger mentors.  We can offer argument and writing time to junior attorneys and underrepresented minorities whenever it’s possible to do so while still serving clients’ needs.  In this way, we’ll help the profession, and we might avoid some of those weekend emergency writ-drafting sessions at the same time. 

February 17, 2024 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Legal Ethics, Legal Profession, Legal Writing, Oral Argument | Permalink | Comments (0)

Wednesday, February 14, 2024

Judicial Ethics Beyond the U.S. Supreme Court

Concerns about the absence of any applicable judicial ethics standards to justices of the U.S. Supreme Court grew into loud demands for an ethics code last year. The result was the adoption of a code largely consistent with the one applicable to federal judges generally, although it contained some important exceptions and also lacked any enforcement mechanism. As a result, recusal remains an individual decision for each justice with only vague and voluntary guidance.

Even though the rules may seem more clearly defined in other courts, surprisingly, issues remain. In 2009, the U.S. Supreme Court issued a decision in Caperton v. Massey, which applied the Fourteenth Amendment’s due process clause to judicial recusal. Brent Benjamin had won election as a justice to the West Virginia Supreme Court of Appeals. Substantial independent expenditures by a party in the case likely helped Benjamin’s candidacy. He nonetheless refused to recuse and argued that the money did not come to him, did not necessarily help his campaign, and did not affect his vote in favor of his so-called benefactor. Disagreeing, the U.S. Supreme Court ruled that the “risk of actual bias” was serious enough “based on objective and reasonable perceptions” that recusal was mandatory.

Although Caperton seemed to establish a standard that erred in favor of recusal, high court justices often determine for themselves whether they should be recused and adopt a personal standard. In one case I had in that same West Virginia court, I asked a justice to recuse himself after he had campaigned on a pledge to uphold the law I was challenging in remarks during his campaign to the group that had lobbied in favor it. He initially denied the motion for recusal, writing a statement about how he had First Amendment rights. Subsequent press coverage, quoting ethics experts who agreed that recusal was warranted, caused him to rethink his position and agree to recuse himself.

Today, the recusal issue is squarely presented in a case pending in the Ohio Supreme Court. Justice Joe Deters joined the Court a year ago after a career largely spent as a county prosecutor. The Court heard oral argument in State v. Glover on February 7. In a bench trial, a judge found Glover guilty of aggravated robbery and kidnapping after a crime spree in which he forced individuals at gunpoint to take him to an ATM, where he robbed them. The judge gave an aggregate sentence of 60 years for the multiple felonies with consecutive sentences. An appellate court found error in the sentence, ordering it reduced to an aggregate of 25 years. The State brought the case to the Ohio Supreme Court.

Justice Deters chose not to recuse himself, despite having served as lead counsel in the prosecution of Glover just two years ago. Ohio Rule of Judicial Conduct 2.11(a) requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Among the specific examples of circumstances warranting disqualification are: (1) having “personal knowledge of facts that are in dispute in the proceeding” and (2) the judge “act[ed] as a lawyer in the proceeding.”

Even though the issue is now a larger one than the underlying case and concerns the criteria applicable to sentencing when multiple crimes are committed, any decision will determine the length of Glover’s incarceration. It seems clear that Justice Deters has “personal knowledge of facts in dispute” and “act[ed] as a lawyer in the proceeding.” Moreover, the case was argued by Deters’s former co-counsel, which also requires disqualification. Given that the appearance of impropriety suffices to disqualify, the decision against recusal comprises an affront to due process. At oral argument, only Deters asked no questions. His silence, however, does not cure the problem.

As with Caperton, the potential exists for this case to land in the U.S. Supreme Court. If the Ohio Court of Appeals is reversed, particularly if Deters’s vote is decisive, Glover’s appointed counsel could raise Fourteenth Amendment due process objections. No one should miss the irony of a Court where recusal is entirely voluntary deciding when it should be mandatory for others.

February 14, 2024 in Appellate Court Reform, Appellate Justice, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, January 20, 2024

An Appealing Definition of Persuasion

Happy 2024!  I hope you are off to a productive and healthy new year. 

In my classroom, we started the new year with a move to persuasive writing.  I began class with a discussion of some differences between argument and persuasion.  My students and I also discussed whether using a focus more on persuasion—and not just argument—might help us a tiny bit as we navigate these times of intense political and social division.  Of course, we have no answers for our national debate, but we agreed using the most appealing communication possible will make us the most persuasive advocates, hopefully helping us rise above mere loud argument.  

In class, we drew a distinction between baldly setting out claims for a client as “argument” and using appealing language to convince a tribunal to rule for the client as “persuasion.”  We reviewed argument as “the act or process of arguing, reasoning, or discussing,” as Merriam-Webster explains, noting some definitions include the idea of an “angry quarrel or disagreement.”  See https://www.merriam-webster.com/dictionary/argument.  Then, I suggested my definition of persuasion.  I asked students to consider persuasion in appellate writing as “an attempt to modify behavior through appealing communication, which is organized, supported, clear, and always honest.”  We stressed the need for credibility, and also for communication that appeals with calmer language and clear connection to law and facts.  (For similar definitions, consider Dictionary.com’s explanation of “persuade” and “persuasion” as including “inducement” to “prevail on (a person) to do something, as by advising or urging.”  See https://www.dictionary.com/browse/persuasive;https://www.merriam-webster.com/dictionary/persuasive.)

You might be thinking that some differences in these definitions of argument and persuasion are in the eye of the beholder, making part of this argument-persuasion idea a distinction without a difference.  Plus, many articles and books on appellate writing stress the need for advocates to avoid conclusions and instead persuasively explain precisely why courts should rule for their clients.  On the other hand, I have seen students approach appellate writing differently based on their concepts of persuasion and argument, prompting me to share this reminder on persuasion. 

Under changes the legislature made to California’s Education Code a few years ago, students in the public schools near my home no longer learn “persuasive” writing.  Instead, they focus on “argument” and what the Ed Code calls “argumentative essays.”  https://www2.cde.ca.gov/cacs/ela?c2=17%2C8%2C9%2C9&c0=2.  Often, these argumentative essays can use “evidence” from opinion or experience, see id., and my sons’ public school teachers emphasized argumentative word choice and strong presentation of the writers’ views.

When the graduates of this approach started trickling into my law school classes, I noticed these California public school students were better than some past students at crafting interest-catching  intro hooks, something I also stress in my persuasive writing teaching.  However, I soon realized several of these students also wrote first drafts less focused on deep analysis.  Too often, their writing had a harsh, argumentative tone but weak connections to the key parts of the precedential cases.  This interesting difference made me think more about how the way we understand the role of our briefs’ “Argument” sections underpins the entire way we draft those briefs.  

While the California Ed Code approach allows connections to supporting “evidence,” I believe the ability to use opinion as evidence undercuts this approach.  Thus, too many of my students who learned high school writing under the new Ed Code initially focused more on their own opinions than on true support from case law.  Their papers suggested a result on appeal based on their analysis of the facts only.  In other words, students engaged in bare arguments simply saying clients should win because of X facts, instead of using persuasion showing how courts should rule for clients based on the way other courts ruled on X and similar facts.  

I see only a handful of students a year from local public schools (or any other schools), and thus I have a very small sample.  Moreover, these students are often quite grateful for constructive criticism and are very open to learning more concrete ways to persuade with appealing, deep connections to our cases.  Nonetheless, the way I saw the California Ed Code change students’ focus helped me see the need to define persuasion expressly. 

Taking this lesson from my students, I do my best to think of genuine persuasion and not only argument as I write.  As you craft your own appellate arguments, hopefully this new twist on the reminder to always persuade and not simply state conclusions will be helpful to you as well.

January 20, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Monday, January 8, 2024

A Fascinating Interview with the Texas Supreme Court

What would you ask if you had the opportunity to interview a state supreme court justice? Would you ask about the justice’s path to the bench? How the justice writes a good opinion? What the justice does when he disagrees with his colleagues?  How the justice works with his law clerks?  Or maybe you would ask what the hardest thing about being a justice is?

How would those questions change if you were 9?  Well, for Emily Caughey the questions wouldn’t change at all!

Last year then 9-year-old Emily came up with the idea to interview justices on the Texas Supreme Court. Her goal was to make a video that would teach kids about the judicial branch.  She drafted serious questions, like the ones listed above, but also fun, kid-friendly questions. She also enlisted the help of her then 7-year-old brother James. The result is a delightful, well-edited video that includes interviews of five Texas Supreme Court Justices.   According to her mom, Jennifer Caughey, a former Justice on Texas’s First Court of Appeals and the chair of Jackson Walker’s appellate section, Emily has “been sharing the video with schools in an effort to expose kids to the Texas Supreme Court.”  Go Emily!

The whole video is worth watching. Highlights include learning what two justices aspire to the same superpower and what two justices both wanted to be professional baseball players. I also enjoyed hearing the justices’ fun facts about the Texas Supreme Court.

Thank you Emily for spearheading such an innovative project, and thank you justices for being generous with your time.  For what it is worth my favorite ice cream flavor is Blue Bell’s Chocolate Peanut Butter Overload.

January 8, 2024 in Appellate Advocacy, Appellate Justice, Appellate Practice, Legal Profession, Legal Writing, State Appeals Courts | Permalink | Comments (0)

Sunday, December 31, 2023

Worth a Read

As the year ends, developments at the Supreme Court – the revelations about judicial behavior that resulted in the adoption of a Code of Conduct and anticipation about what appears to be a momentous term – have dominated the world of appellate advocacy.

A few weeks ago, the New York Times published two fascinating pieces focused on the Court and its actions in Dobbs,[1] the 2022 decision that overturned Roe v. Wade.[2] One article, a revealing behind-the-scenes report on the acceptance and development of Dobbs, describes maneuvering undertaken by different justices to either accept or reject the case, including a calculation that delay will make the result more acceptable and a change of position on granting the petition. The article also covers the process of developing the opinion that leaked but remained largely intact when officially issued. The inside baseball described should interest any appellate advocate.

The second, a column by the inestimable Linda Greenhouse, discusses how Dobbs showed that the late Justice O’Connor erred in believing that judicial decisions are largely reactive and reflect an emerging social consensus. The op-ed also previews soon-to-be-published research about how the Supreme Court undermined its own reputation and authority by moving so far out of the mainstream in the same opinion. Both articles are well worth a read.

In many ways, the issues currently surrounding the Supreme Court do not have analogues among other courts, and the institutional concerns described in both pieces do not affect many of the decisions of even the Supreme Court. To be sure, some of the public’s flagging confidence and respect for the Court is a function of the ethics issues that have swirled around the Court, as well as growing public support for judicial term limits. Still, nothing dominates the public discussions like reactions to unpopular decisions.

What happens at the Supreme Court, unlike what happens in Las Vegas, does not stay there. It plainly affects the public view of the judiciary more generally. Recent surveys conducted on behalf of the National Center for State Courts show that the Supreme Court’s plunging public reputation has dragged down public confidence in all courts. The unfortunate result, though, is that discontent with the Court only fuels the current disrespect for the rule of law and our ability to function as a representative democracy at a time when democracy itself is threatened.

As officers of the court and as counsel familiar with the principles that undergird our system, we have an obligation to work to repair some of the damage done. Let’s dedicate ourselves with the approach of a new year to finding ways to restore respect and confidence in the rule of law.

 

[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

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

December 31, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Saturday, December 23, 2023

Holiday Generative AI for Busy Appellate Lawyers

Happy Holidays!  

We have reached the fourth Saturday of December, the last possible day for me to post my monthly “Saturday” blog.  For the last four Saturdays, I have diligently worked to find time to write something sharp and fun on appeals and the end of the year.  But like so many of you, I found my time consumed with grading, other pressing work, kids home from college, and holiday obligations.

In my effort to post something meaningful and enjoyable, I started several essays discussing how trying to manage a December schedule as a parent and professional is like writing an appellate brief.  These posts were so cute in my mind, drawing all sorts of neat comparisons between making filing deadlines for multi-issue briefs and triumphing after nightly holiday events.  I also started some great (again, only in my mind) comparisons of Lexis+ AI and gift shopping for colleagues and family.  But just as I would start writing, a last-minute emergency or holiday engagement would take my time.  Alas, this will not be the nifty post connecting appellate writing and holiday stress that I had imagined.

Instead, I have realized my struggle to be fresh, creative, relevant, and thoughtful in a holiday blog while also trying to sleep during the holidays—even a little—just might not be possible for me this year.  Therefore, my gift to you this season is a poem on appeals and holidays ChatGPT helped me draft.  Hopefully, this makes you smile as we welcome more generative AI into our teaching and practice in 2024.  I plan to spend a fair amount of time next semester talking with my students about letting generative AI assist them while always “thinking like lawyers” and checking chatbots’ work.  I might even try to connect some of these lessons to holiday shopping and family time. 

Holidays and Appeals

In the court of appeal’s courtroom's hallowed halls we stand, A season of justice, a legal command.

Holidays approach, a festive cheer, Yet in the legal realm, the briefing schedule draws near.

Gavels echo, a rhythmic song, As our appeals dance along.

Beneath the twinkling lights of the law, Hope and reason, like ornaments, draw.

In the silent night, briefs are penned, Arguments woven, like wreaths descend.

Lawyers gather, minds ablaze, To navigate through the appellate legal maze.

Amidst the carols and joyous sounds, Legal battles on hallowed standard of review grounds.

A respite sought, an enforcement reprieve, In the holidays, justice we believe.

The scales of justice, like gifts exchanged, In opening and reply brief wrappings, fairness arranged.

Briefcases filled with legal might, As holiday spirits take their flight.

Jingles of high court precedent in the air, A legal dance, a record laid bare.

A yuletide plea, a solemn quest, To find justice, in holidays dressed.

Ornaments of statutes, hung with care, As legal appeals fill the festive air.

Holidays and justice, hand in hand, A legal season, a legal stand.

In the echoes of a reviewing courtroom's call, May fairness and merriment reign for all.

 

December 23, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Humor, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, November 19, 2023

Legislatures, Initiatives, and the Courts

Commentators have long likened the legislative process to sausage-making, something that those with weak stomachs should not observe too closely. Nonetheless, courts have respected legislative decision-making by providing outsized deference to that body as the policymaker most likely to enact laws in accordance with popular sovereignty. When voters object to the decisions rendered, they can throw the rascals out, and different policy choices can then prevail.

Yet, legislators often seem to disapprove of voters who bypass them to enact laws or constitutional provisions by initiative – especially when it supports ends that the legislators oppose. At the moment, we see this playing out in Ohio. In light of the Dobbs decision,[1] which overturned Roe v. Wade[2] and declared that abortion was an issue that could be decided state-by-state, pro-choice voters have sought to enshrine a right to abortion in state constitutions through the initiative process in several states. To date, all have passed.

In Ohio, the legislature attempted to put up an obstacle in advance of the vote. It sought approval of its own initiative on a quicker schedule that would have increased the requirement for approval from a simple majority to 60 percent, as well as from 44 to 88 the number of counties represented in signatures to qualify for the ballot. That initiative failed. Then the secretary of state proposed language, approved by the state ballot board, designed to make the proposed amendment less desirable.

Nonetheless, the amendment was approved by voters earlier this month. Immediately after the election, Ohio House Speaker Jason Stephens claimed that “multiple paths” exist to prohibit abortion despite the constitutional amendment.”

Most troubling for those who believe in the rule of law and judicial independence is the proposal some Ohio lawmakers have advanced to strip the courts of the authority to review cases that would implement the newly passed constitutional amendment. They released a statement justifying this extreme measure by asserting, without demonstrating any basis for the claim, that “foreign election interference” tainted the vote. The election denialism that infected the last presidential election apparently provides fodder for undermining the courts.

Those courts are currently reviewing a constitutional challenge to a 2019-enacted six-week abortion ban that contains no exceptions for rape or incest. The constitutional amendment would appear to make invalidation of the ban a simple and straightforward inevitability. A jurisdiction-stripping bill, if valid, would prevent that possibility.

At stake is not only the status of abortion, but the authority of our courts – and the place of popular sovereignty in our representative democracy. Certainly, there are arguments against amending laws and constitutions through the initiative process. It can be overused, trivialize the law with popular but ill-considered or poorly drafted mandates, and has spawned an industry that raises and profits from the process. The same, however, can be said of the legislative process itself. While in place, the initiative, a product of progressives a century ago, still provides the rules that we are obliged to follow.

Ohio and the abortion issue is not the only time that legislatures have rebelled against voter initiatives. In 2018, Floridians approved an initiative to restore voting rights to people convicted of felonies and who had completed their sentences, excluding murderers and sex offenders. Months later, the legislature enacted a law that defined completion of a sentence as having repaid in full all fines and fees, even though that often could not be determined. The Florida Supreme Court, in response to a request of the governor while a constitutional challenge was working its way through the courts, read the new law as consistent with the amendment passed by initiative. Whatever one thinks of that conclusion, it conformed to a process that allowed the courts to determine the law.

My favorite example of a voter initiative and a legislature at loggerheads occurred in Massachusetts. In 1988, voters approved the Massachusetts Clean Elections Law, which created a system of public campaign funding for candidates who limited the private financing they accepted. The Massachusetts initiative provision required the legislature to fund it, but no appropriation was ever made. Plainly, legislators were not anxious to fund their challengers. Supporters of the initiative, including a candidate for governor, brought a lawsuit in 2001 to obtain the missing funding or void any election without public funding.

The Massachusetts Supreme Judicial Court held that the initiative, unless repealed, required the legislature to a money judgment in the amount that would provide the public campaign funding promised by the law, while the court would retain jurisdiction with a single justice assigned to assure that other eligible candidates also receive the money.[3] When the legislature dragged its feet in providing the funding, that justice threatened to execute on the Commonwealth’s property to assure that the funding would be forthcoming. The threat proved sufficient, although the legislature exercised its right to repeal the Clean Elections Law a year later.

Ohio’s legislature cannot repeal a constitutional amendment on its own. It could argue that the amendment should not be interpreted to invalidate its 2019 statute. What it should not do, if the rule of law is to prevail, is block the courts from construing the state constitution and measuring legislative acts against its restrictions.

 

[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

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

[3] Bates v. Dir. of Off. of Campaign & Pol. Fin., 763 N.E.2d 6 (2002).

November 19, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, State Appeals Courts | Permalink | Comments (0)

Saturday, November 18, 2023

Welcoming Judge Ana de Alba to the Ninth Circuit

On Monday, the United States Senate confirmed President Biden’s nominee, Judge Ana de Alba, to the Ninth Circuit Court of Appeals seat left open when Judge Paul Watford resigned in May 2023.  As the Ninth Circuit news release explained, “Judge de Alba has served as a district judge on the U.S. District Court for the Eastern District of California since July 2022, when she became the first Latina appointed to that court.”  News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023.  Before joining the Eastern District of California bench, Judge de Alba also served as a Fresno County Superior Court judge and a litigator in private practice.  Id. 

When she formally takes her seat at the Ninth Circuit, Judge de Alba will be the fourth Latina to serve on that court.  Senator Alex Padilla told Law360:  "The daughter of immigrants from Mexico, Judge de Alba's path to her confirmation to the Ninth Circuit today embodies the American Dream."  Courtney Buble, Eastern District Of Calif. Judge Confirmed To 9th Circ., Law360 11/13/2023.

Similarly, the Chief District Judge for the Eastern District of California, Kimberly J. Mueller, offered  “[h]earty congratulations to Judge de Alba! We are thrilled that the U.S. Senate has recognized her stellar qualifications and substantial experience as fully supporting her elevation to the federal appellate court.”  News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023.  Bloomberg Law reported that “three judges she served with on the Superior Court of California” found Judge de Alba “exceptionally well suited for appellate work” because “[s]he excels at research and writing, carefully and meticulously prepares for matters before her and approaches cases and issues with an open mind.”  John Crawley, Latina Judicial Trailblazer Elevated to Largest Appellate Court, Bloomberg Law, 11/13/2023.

Judge de Alba will maintain her chambers in Fresno, where she has deep ties to the community.  Born in Merced, California, Judge de Alba attended the University of California at Berkeley for her undergraduate and legal studies.  As the Ninth Circuit press release explained, Judge de Alba has served on the board of many public interest and bar association boards in the Eastern District and throughout California.  Judge de Alba has received service awards from the Rape Counseling Services of Fresno, Centro La Familia Advocacy Services, Central California Legal Services, and many more.  Id.; see also Ben Shatz, New 9th Cir. Judge de Alba!, http://socal-appellate.blogspot.com/2023/11/new-9th-cir-judge-de-alba.html, Southern California Appellate News, 11/14/2023. 

Welcome Circuit Judge Ana de Alba!

November 18, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession | Permalink | Comments (0)

Sunday, October 22, 2023

A Majority Opinion Becomes a Dissent Disguised as a Majority Opinion

Sometimes, after an opinion is drafted, members of a court change their minds. It may be that the draft highlights something a member of the majority finds sufficiently troubling that the result should change. It may be that the draft opens the door to something a judge believes should be off the table.

One way that an outsider can tell that a judge lost the majority is when the dissent contains a fuller statement of the facts than the majority opinion. It suggests that the original majority opinion was turned into a dissent and the original dissent became the opinion of the court.

Something quite unusual in this regard took place in the Fifth Circuit earlier this month. The State of Texas filed an emergency appeal of a stay of execution for a death-row prisoner who challenged state statutes that precluded him from receiving DNA testing to establish his innocence of crimes that he was not convicted of but that qualified him for the death penalty because of presumed “future dangerousness.” The issue he raised was also pending in the Fifth Circuit in another case brought by a different inmate.

In this case, the inmate first argued that the court had no jurisdiction over the interlocutory appeal because the district court called its order a stay, rather than an injunction. The majority opinion, by Judge Leslie Southwick, quickly set that semantical issue aside, calling it “commonplace” that such jurisdiction existed and noted that the dissenting opinion “contains the same analysis, and we restate much of it here.”

Judge Jerry Smith, a member of that Court since 1987, dissented. His dissent begins with a strange and unique statement:

          The majority opinion is grave error. It succumbs to a vapid last-minute attempt to stay an execution that should have occurred decades ago.

          In the interest of time, instead of penning a long dissent pointing to the panel majority's and district court's myriad mistakes, I attach the Fifth Circuit panel opinion that should              have been issued.

What follows is an opinion that in look and feel appears to be a majority opinion written by Judge Smith and joined by all members of the panel. The opinion expresses the same pique evident in the second prefatory sentence before it about the courts’ indulgence of repeated appeals and a rejection of the merits of the prisoner’s case.

Judge James Graves specially concurred in the majority opinion. attachment of a proposed majority opinion drafted by Judge Smith. The opinion takes pains to rebut the dissent’s “proposed majority opinion,” which Judge Graves said he never joined. The detail in this concurrence suggests that it was originally a dissenting opinion, which succeeded in changing Judge Southwick’s mind, much to Judge Smith’s apparent consternation.

For an appellate advocate, the self-evident dynamics in the case makes the concurrence worth studying. It carefully parses the position of the original majority to demonstrate that it decides more than the case presents. Instead of looking to the validity of the laws that prevent use of DNA evidence to sentencing, which Judge Smith suggests is a losing proposition for the inmate, but that, procedurally, with another case under advisement raising the same issues, the district court did not abuse its discretion in staying the execution pending its disposition because there is no reasonable “basis to distinguish the present appeal.”

Perhaps if appellate counsel had limited the argument to the common-sense idea that a determinative case is pending, we might have seen a straightforward and brief opinion similarly supporting the stay without the odd display of internal friction at the court. This case is Murphy v. Nasser, No. 23-70005, 2023 WL 6814520 (5th Cir. Oct. 10, 2023).

October 22, 2023 in Appellate Advocacy, Appellate Justice, Federal Appeals Courts, Legal Writing | Permalink | Comments (0)

Saturday, October 21, 2023

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration.  One of my favorite aspects of full time appellate practice was just that:  time.  I treasured having more time--albeit never enough time--than I had in trial practice.  I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court.  Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research.  Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients.  In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized?  Neither have I.   

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar.  The Bar is considering whether to adopt a pilot for this PBE alternative.  You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here:  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.  In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure. 

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test.  Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision.  These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients.  As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.”  Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).  

How would this work?  Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.”  Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.”  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.    

Of course, not everyone favors the PBE proposal.  Some opponents raise thoughtful and important issues of bias and discrimination.  A small pilot can help us address these concerns.  Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities.  See  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.   As former Trustee Mendoza explains: 

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly.  Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.   

The most vocal opposition seems to be from people connected to profitable bar preparation courses.  Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising.  See id.  While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.   

The State Bar is asking for public comment on the PBE Pilot.  The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys.  If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”:  https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button.  The Bar has also provided a box for typed or uploaded comments.  The deadline to comment is Wednesday, October 25, 2023.  I clicked “AGREE” and completed my comment in less than two minutes.  I urge you to weigh in on this important question too.   

October 21, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, Legal Writing | Permalink | Comments (1)

Sunday, September 24, 2023

Impeachment Fever and the Judiciary

Every appellate advocate wants an impartial and independent judiciary, not a bench populated by people who would trim their sails to whatever political winds put them in their seat or is blowing so hard that the easier course is to let it dictate a result. Instead, we ask for a fair application of the law.

It may seem obvious that our justice system should operate that way, but political partisans often seek to bend the courts to their favor, whether through the appointment process or through elections. Even so, we hope that on the bench our judges will seek to make decisions rooted in law rather than political preference. Not everyone agrees, however.

In 2006, one stripe of political partisans operating under the banner of the South Dakota Judicial Accountability Project sought approval of a constitutional amendment that became known as “Jail for Judges.” The proposed amendment, which was defeated at the ballot box, would have allowed thirteen special grand jurors to decide that a judge’s ruling was wrong and either fine or jail the judge, as well as strip away as much as one-half of earned retirement benefits. Judicial rulings made years ago would have been subject to this process, as long as the jurist was still alive.

As extreme as that measure was, we are seeing a spate of new challenges to our courts that seek to guarantee certain results and threaten judicial independence. One that has received a great deal of attention is the threat of impeachment aimed at a newly installed Wisconsin Supreme Court justice. It has a transparently political purpose: keeping the Court’s new majority from upsetting the legislature’s redistricting handiwork. The basis for impeachment is incredibly weak. During her campaign, now-Justice Jane Protasiewicz called the gerrymandered districts “unfair” and “rigged,” while still avoiding any promise that she would rule one way or another. Republican Assembly Speaker Robin Vos accused her of “prejudging” the challenge to those districts, now before the Court, and has suggested the impeachment was a proper response if she chooses not to recuse herself.

Of course, this is not the first time an elected judge spoke to issues coming before a court. In one instance, the Washington Supreme Court considered whether one of their newly elected members was subject to discipline for his participation in an anti-abortion rally on the day of his swearing-in ceremony. At the “March for Life” rally, Sanders thanked the crowd for supporting his election and expressed “his belief in the preservation and protection of innocent human life.”[1] A judicial conduct commission found probable cause that Sanders violated several different canons of judicial conduct, but the state supreme court found that he acted within his free speech rights and his comments and actions did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.”[2]

In another case that reached the U.S. Supreme Court, Republican Party v. White,[3] the Republican Party and several candidates for judicial office successfully challenged a canon of judicial conduct that prohibited candidates for judicial office in Minnesota from announcing their views on disputed legal and political issues on First Amendment grounds. Justice Scalia’s opinion for the Court distinguished between “pledges or promises,” a prohibition that was not before the Court, and merely announcing ones views, which the Court said does not bind a candidate once elected.[4]

The opinion found it incongruous to permit candidates to express support for a prior judicial decision, but not criticism of it. It further noted that the prohibition related to taking positions on issues, but not expressing oneself for or against particular lawsuit parties. Thus, rather than be aimed at impartiality, which was its putative purpose, the Court found the prohibition was against expressing a view of the law upon which voters might choose to vote. As Justice O’Connor expressed in a concurrence, as long as you have judicial elections, something she disfavored, candidates, including incumbents, are going to express views on issues before the public, and that doing so was necessary to maintain public confidence in the courts.[5]

These cases suggest that the principal basis for impeachment in Wisconsin is inconsistent with established First Amendment principles. Garnering less attention, but no less problematic, is the tactic being employed in North Carolina. Justice Anita Earls, a black jurist on the state supreme court, gave an interview in which she advocated for greater diversity in the state court system, labeled the frequent interruptions of female advocates before the court an example of implicit bias, and bemoaned the termination of racial equity and implicit bias training in the judiciary. She relied on a recent study for her comments and said that diverse decision-making results in better outcomes, assures that a range of perspectives are considered, and secures greater public support because people are confident that more voices are heard.

For those remarks, the North Carolina Judicial Standards Commission began an investigation in August based on reading those remarks as accusing her judicial colleagues of “racial, gender and/or political bias.” The Commission suggested that the remarks “potentially violate[] Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” Earls, who believes she was supporting public confidence in the judiciary, filed a federal lawsuit to enjoin the Commission from proceeding, citing First Amendment grounds and intimating that the Commission’s investigation could be used by the legislature to remove her from the bench.[6]

Early in our history, these types of attacks on judges when the political powers that be disagreed with rulings had a brief lifespan. The party of Thomas Jefferson, in control of the presidency and the Congress, was frustrated by the Federalist judicial appointees and their rulings. They tested the impeachment powers first against a New Hampshire district court judge, John Pickering, who was removed from office in 1804 upon apparently deserved accusations of habitual intoxication and insanity. Then Congress went after Justice Samuel Chase in what was generally regarded as a dry run at Chief Justice Marshall. Chase had placed himself in the sights of the new Democratic-Republican majority through partisan rants contained in his jury charges, as well as his handling of cases under the Alien and Sedition Acts. Despite holding a sufficient majority to convict in the Senate, enough party members balked at the process so that conviction fell four votes short, effectively ending the effort aimed Marshall and understood as a commitment to judicial independence that seemed strong until more recently.

As advocates, we need to recommit to first principles and denounce these new efforts to turn the judicial branch into a political football that can be manipulated to achieve what proper legal arguments cannot. While the judiciary is not immune from the ebb and flow of political opinion, it should not be reshaped by political threats based on the expression of views.

 

[1] Matter of Disciplinary Proceeding Against Sanders, 135 Wash. 2d 175, 178, 955 P.2d 369, 370 (1998).

[2] Id. at 768, 955 P.2d at 370.

[3] Republican Party of Minnesota v. White, 536 U.S. 765, 768 (2002).

[4] Id. at 770.

[5] Id. at 788–89 (O’Connor, J., concurring).

[6] Earls v. N.C. Jud. Stds. Comm’n, et al., Complaint, Case No. 1:23-cv-00734 (N.C. M.D., filed Aug. 29, 2023).

September 24, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, September 16, 2023

Mandatory Civility Rules for Counsel

As I sat down to write this post, I realized it would appear at the beginning of the Jewish new year celebration of Rosh Hashanah and on my twenty-eighth wedding anniversary.  The rabbi who married us all those years ago had to leave our reception early to catch a flight to Israel for the new year, and Rosh Hashanah and our anniversary will always be connected in my mind.  In the spirit of this connection, I send wishes for a sweet and healthy new year to everyone celebrating, and I also share some thoughts on civility and my long marriage.

This week, retired Prof. Scott Fruehwald shared on a list-serv the abstract of Prof. David Grenardo’s upcoming  article on mandating civility, Debunking the Major Myths Surrounding Mandatory Civility for Lawyers Plus Five Mandatory Civility Rules That Will Work, 37 Geo. J. Legal Ethics __ (forthcoming).  While the author notes the article is still in draft form, it has already won the American Inns of Court 2023 Warren E. Burger Prize.  I highly recommend reading it. 

Prof. Grenardo details the way four states—Arizona, Florida, Michigan, and South Carolina—have adopted mandatory civility rules.  See id. at (draft manuscript pages) 10, 12-16.  He also makes powerful arguments that we should follow these states and move from voluntary, aspirational statements of a lawyer’s duty to be civil to mandatory civility rules.  See, e.g., id. at 16-23.  He concludes:  “Talking is not enough—leaders of the legal system need to act. State bars, state supreme courts, and, if necessary, state legislatures must take the step that four brave states already have—mandate civility.”  Id. at 37.

As I read Prof. Grenardo’s draft article, I was thankful (as always) for an appellate career, where I avoided much of the terrible incivility too often present in discovery and trial scheduling issues.  Nonetheless, I also remembered one opposing counsel’s refusal to stipulate to my seven-day extension request for a reply brief when I was in the hospital during a difficult pregnancy and the extension would not have changed the oral argument date in the matter.  You can probably also share a memory of  incivility in your practice.  

How does this connect to my marriage?  When my students ask how my husband and I have been married for more years than most of them have been alive, I tell them, “marriage is respect and compromise.”  Clearly, I am oversimplifying, but maybe only a bit.  And the more I see incivility in the legal profession, the more I see the need for respect and compromise.  Of course, clients deserve vigorous advocacy, and that does not always square with the idea of compromise.  Prof. Grenardo has several answers to this quandary.  For example, he notes that many lawyers “point to civility as a necessary component of effective advocacy,” id. at 34, and being more civil and willing to compromise on meritorious requests saves clients money, id. at 6.  

Whether you agree that we need to mandate civility rules, believe we just need to enforce our aspirational canons better, or find reports of incivility exaggerated, I hope this blog makes you think about compromise and our role as advocates.  I also hope you will read Prof. Grenardo’s article, either now or when Georgetown publishes it.  Happy new year!

September 16, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Legal Ethics, Legal Profession | Permalink | Comments (0)

Saturday, July 15, 2023

Judge Michael’s Brief-Writing Tips, Part 1

One of my exciting (yes, really) summer projects is to help with a Legal Writing textbook, including drafting a chapter on trial briefs.  In looking at state and local rules on what trial briefs should contain, I found a great list of ten brief-writing tips from the Hon. Terrence L. Michael, Chief U.S. Bankruptcy Judge for the U.S. Bankruptcy Court for the Northern District of Oklahoma and a member of the Bankruptcy Appellate Panel of the Tenth Circuit.

On his chamber’s webpage, https://www.oknb.uscourts.gov/content/honorable-terrence-l-michael, Judge Michael has a list of his “Policies and Procedures,” including a document called, Ten Tips for Effective Brief Writing (at Least With Respect to Briefs Submitted to Judge Michael), https://www.oknb.uscourts.gov/sites/oknb/files/briefwritingtips.pdf.  Judge Michael is a respected and prolific author and speaker, and he’s even been on stage as a singer at Carnegie Hall, so I was not surprised to find his list of tips both engaging and fun.  See generally https://www.law.com/clecenter/online-course-catalog/you-want-me-to-do-what-the-dilemma-of-trying-to-interpret-and-follow-appellate-precedent-6056/.

Of course, some of the judge’s tips are applicable to Bankruptcy Court and trial filings, but most apply well in appellate writing too.  Therefore, I’m sharing all ten of his tips, although I’ve deleted points especially applicable to trial or bankruptcy practice. 

Judge Michael begins: 

I was once asked (OK, I once wished that I had been asked) what judges look for in written submissions. After considerable thought, and with some trepidation, I have tried to set some general principles down in writing. 

He cautions: “What follows is a list of ten ideas/suggestions for your consideration. I do not purport to speak for any of my colleagues; this list, for better or worse, is my own.”

For this post, I’ll highlight Tips One through Five, and next time, I’ll discuss Tips Six to Ten.

Tip 1.  Remember, Your Goal Is to Persuade, Not to Argue.  Judge Michael explains, “[w]e all have had people come up to us at cocktail parties or family reunions and say, “’You know, I would make a good lawyer because I just love to argue.”’  He says, those statements “could not be further from the truth [as g]uests on the Jerry Springer show argue [while] Lawyers persuade.”  Thus, the judge reminds us the idea “behind an effective brief is to have the audience (the judge and/or the law clerk) read the brief and say to themselves, ‘“why are these parties fighting over such an obvious issue?”’ because the points are actually persuasive, and not just argumentative.

Tip 2.  Know thy Audience.  Judge Michael notes that most bankruptcy judges write and publish opinions, and some even provide links of those opinions on their webpages.  While appellate judges do not necessarily provide links to their opinions, we can certainly search for them.  As the judge explains, “[w]e publish those opinions in order to give you some idea of what we have done and why [and w]e try to be consistent.”  Therefore, judges find it “extremely frustrating (and remember, a frustrated judge is not easily persuaded) to have counsel in either written or oral argument raise an issue and be completely ignorant of the fact that we decided that issue in a published opinion last week, last month or last year.”  Moreover, not knowing what your panel previously decided “is also embarrassing, both for you and for us.”

Tip 3.  Know thy Circuit.  Sadly, Judge Michael has to remind us his court is “bound by published decisions of the United States Court of Appeals for the Tenth Circuit,” even though he “ know[s] this sounds obvious,” because “on more than one occasion, [he] had an attorney ask [him] to follow a decision from another circuit which is directly contrary to controlling Tenth Circuit authority.”  Avoid “creative” arguments to use sister circuit cases when your circuit really has decided the issue. 

Tip 4.  Know the Facts of the Cases You Cite.  When teaching first-year students, I often caution them not to take quotes from cases either out of context or without context.  Judge Michael’s Tip 4 says we must resist the temptation to insert what seem to be “magic words” of these unconnected quotes into our briefs.  According to the judge, “insert[ing] that quotation ([he] call[s] them “sound bites”) into your brief and say[ing], “see, judge, other courts agree with me so I must be right” is actually “a dangerous practice.”  Why?  Because courts “decide real disputes” and “[r]eal disputes are fact driven.”  Thus, we must “[b]e wary of the case which is factually dissimilar to yours, but has a great sound bite.”  Instead, we should “be sure” to explain “why the factually dissimilar case is applicable to your situation.” 

In another point I often raise with first-year students, the judge reminds us to “be cognizant of the difference between the holding of a case and the dicta contained therein,” as “[m]ost judges (this one included) find little value in dicta unless we already agree with it.”

Tip 5.  Shorter Is Better.  When I was in appellate practice, my clients often asked me to ghost write “record-protecting” trial briefs or include weaker issues on appeal to preserve them for high court review.  Deciding which issues might prevail one day and which you should exclude because they are weak is a truly lawyerly task.  In each case, you will balance the needs of the client—especially an institutional client—to raise issues against the persuasive value of focusing on just the best arguments.  Judge Michael suggests we balance on the side of fewer arguments.  He states:  “Thurgood Marshall once said that in all his years on the Supreme Court, every case came down to a single issue. If that is true, why do most briefs contain arguments covering virtually every conceivable issue (good, bad or indifferent) which could arise in the case”? 

The judge explains, “[w]eak arguments detract from the entire presentation.”  He offers this great advice:   “If you feel compelled in a particular case to include everything including the kitchen sink, maybe you ought to take another look at settling the case.”  Good advice, indeed. 

Happy writing!

July 15, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, July 2, 2023

A Sur-Reply on Originalism

A Sur-Reply on Originalism

  1. The debate on these pages teaches lessons about arguing appeals.

Most readers of this blog probably look for the practice tips and insights that are often discussed on this blog. Occasionally, though, contributors address more substantive content. Beyond the doctrinal discussions that the contributors believe inherently interesting, these debates provide practical lessons. The different approaches to argument and counterpoint also enable readers to assess the effectiveness of these different tactics.

Recently, three of us weighed in on the use of originalism as an interpretive methodology. We used support for our views from putative allies of the other side (e.g., Adam citing Justice Kagan and me citing James Madison and Justice Scalia), disputed whether examples used supported the claims made for them, employed rhetorical devices, suggested procedural flaws, and honed in on weaknesses in our opponents’ theory.

In his reply to the arguments that Phillip Seaver-Hall and I made, Professor Adam Lamparello, who started the debate, wrote a reply. I found his defense of his position too juicy to ignore.

  1. A familiar debate tactic does not necessarily win the day when it assumes too much.

Adam starts with a truism – that it is easy to criticize and much harder to propose solutions, which is a standard debate tactic. He suggests that his critics have failed to propose an alternative to originalism and that undermines their stance. However, he assumes that the goal he seeks is either universally desired or achievable. While it is true that we generally agree that judges should not invent constitutional holdings as though a court were a rolling constitutional convention and instead show fidelity to text and principles, both Phillip and I argued that originalism does not produce the interpretative nirvana Adam seeks and is as prone to imprinting personal views on the Constitution as any other approach. I showed that the decisions he cited to show results different than a judge’s ideological predisposition did not qualify as originalist so that they did not support his point.

Moreover, I expressed my doubts that any methodology could cabin human preferences or biases and were instead subject to selective reliance on those historical artifacts that hit a responsive chord with our personal views. Even so, as the best we could do, I suggested that common-law methodologies were both constitutionally proper and useful, citing a 1992 book I wrote for West Publishing on the topic.

That methodology permits us to consider the text, the framers’ intent, the ratifiers’ understandings, our collective experience, and precedents to understand the wisdom of all who came before us, seeking to apply constitutional principles, and be a part of that cross-generational conversation of what free speech or due process means, anchored in the written words and underlying purposes of a constitution, as Chief Justice John Marshall said, “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”[1] That sentiment was cited and endorsed by the originalist decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] with the additional explanation that the Constitution’s fixed meaning still must be “appl[ied] to circumstances beyond those the Founders specifically anticipated.”[3]

Nor is a common-law methodology necessarily unbounded. Properly utilized, it employs generations of wisdom in applying law to controversies “to form a stable body of rules that not only determine immediate controversies but also guide future conduct,” as the late New York Chief Judge Judith Kaye explained.[4] She added, that to the extent it changes, it “grows incrementally, in restrained and principled fashion, to fit into a changing society.”[5]

That growth in sensible application, such as finding that schoolchildren do not shed their constitutional rights at the schoolhouse gate when public schools or the rights of children may never have been in the contemplation of those responsible for the First Amendment or even Fourteenth Amendment due process but still accords with our understanding of those rights throughout the ages. For me, this process seeks to remain faithful to the words and the document’s legitimacy as the written product of a democratic process, yet seeks to maintain its continued vitality by applying its commands and principles today to modern controversies not by whether those applications occurred at the time of ratification but with an understanding that that constitutional principles “have an iceberg quality, containing beneath their surface simplicity submerged complexities”[6] that may only be apparent when tested under a specific fact pattern.

  1. Examples used must support the claim made.

Because he believes his debate opponents did not propose an alternative, Adam uses a straw man of “living constitutionalism,” to argue against it. Living constitutionalism is a loaded term, associated with the idea that the Constitution evolves to fit modern times and leaving judges with unbridled authority as though judges were solons employing their personal wisdom. He then works to knock down the legitimacy of “living constitutionalism.”

Treating Adam’s post as an argument against constitutional evolution through judicial decision, he uses a frequent tactic in arguments by showing how it produces bad results. Specifically, he attributes the decisions, unthinkable today, of Dred Scott v. Sandford,[7] and Korematsu v. United States,[8] to its use. He argues that both cases were policy decisions by a court not invested with policy authority, rather than interpretations of the Constitution as originally understood. I found that formulation curious because a reading of the two cases suggests that they were either originalist or textualist in nature.

In Dred Scott, Chief Justice Roger Taney wrote “[i]t is not the province of the court to decide the justice or injustice, of the laws” but to interpret the Constitution “according to its true intent and meaning when it was adopted.”[9] That sentence certainly sounds like the originalism Adam favors. Consistent with what the current Supreme Court has done to explore originalism, Taney concluded that black people “were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States,” because they were not considered citizens when the Constitution was adopted.[10] That sentence, fueling the decision, also sounds quite originalist. To overcome that position, we required a civil war and the adoption of the Thirteenth and Fourteenth Amendments.

His second example, Korematsu, might be deemed a textualist decision, rather than one based on “living constitutionalism.” The Court upheld the detestable internment of Japanese-Americans in that case, employing the same rationale it expressed a year earlier in upholding a wartime curfew applied to Japanese-Americans on the West Coast in Hirabayashi v. United States,[11] the Supreme Court reasoned that the

The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. … Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.[12]

The absence of an equal-protection declaration in the Fifth Amendment allowed the Court to treat the constitutional war powers as the proper focus of its analysis. That authority, which it thought would support a plenary curfew despite its burden on rights, would also supports a targeted curfew:


The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.[13]

Subsequently, in Korematsu, the Court echoed that explanation, stating that even though racial discrimination warrants “rigid scrutiny,” “[p]ressing public necessity may sometimes justify the existence of such restrictions; [even if,] racial antagonism never can.”[14] Once again, war necessity rather than racial discrimination, the Court believed, undergirded the abhorrent treatment of Japanese-Americans.

I’m hard-pressed to understand how originalism might have prevented this result. Originalism would not have read equal protection into the Fifth Amendment, nor would it have necessarily found applicable limits to Congress’s war powers. Certainly, when the Court soon afterwards read an equal protection strand into the Fifth Amendment, it did not engage in originalism to get there. It instead lodged it in the “American ideal of fairness” and precedent that established that equal protection for schoolchildren in the District of Columbia had to be protected just as the Court said for students in the States in the Fourteenth Amendment, was merely a “more explicit safeguard of prohibited unfairness than ‘due process of law,’” and, equally “unjustifiable” as a matter of due process.[15]

  1. Conclusion

Adam initiated a fun debate, and I’m grateful to him for doing so and for the way in which it was conducted. We disagree, and we have our perspectives on what counts or doesn’t count. Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said. And they can also judge for themselves how effective our different argument strategies were in the ways that we deployed them.

 

[1] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis in orig.).

[2] 142 S. Ct. 2111 (2022).

[3] Id. at 2132.

[4] Judith S. Kaye, State Courts at the Dawn of A New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 5 (1995).

[5] Id.

[6] Flast v. Cohen, 392 U.S. 83, 94 (1968).

[7] 60 U.S. 393 (1857), superseded by U.S. Const. amend. XIV (1868).

[8] 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[9] Dred Scott, 60 U.S. at 405.

[10] Id. at 407.

[11] 320 U.S. 81 (1943).

[12] Id. at 100 (citations omitted).

[13] Id. at 101.

[14] Korematsu, 323 U.S. at 216.

[15] Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

July 2, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, June 30, 2023

Summer Hallucinations, Plagiarism, and ChatGPT

Recently, I asked ChatGPT to write some poems about hallucinations.  Why?  In part, because it’s summer and I think watching ChatGPT create poems is fun.  I also asked because I’ve been thinking about how to cover generative AI with my first-year students in the fall.

First, the fun.  Here’s one poem ChatGPT wrote:

In realms where minds dance on fragile strings, Where perception waltzes and reality sings, There lie the realms of wild hallucinations, A kaleidoscope of bewildering sensations.

In the tapestry of swirling dreams, Illusions bloom, unraveling seams, Colors ignite, in vivid display, As sanity fades, in a twilight ballet.

Whispers of shadows tease the mind, Whimsical echoes, elusive to find, Figments morph and take their form, An enigmatic symphony, a tempestuous storm.

Phantoms parade through the labyrinth of thoughts, Phosphorescent specters, tangled in knots, They twirl and they twist, surreal and sublime, Guiding the lost to a place out of time.

Walls dissolve, unveiling hidden dimensions, Mirrored reflections, fragmented inventions, A fragile balance, fragile as glass, Where illusions and truths become enmeshed.

The boundaries blur, in a psychedelic trance, Reality's grip begins to wane and advance, Visions arise, transcending the known, A voyage into realms where reason is thrown.

Whispers turn to laughter, laughter to screams, In this realm, nothing is as it seems, A carnival of apparitions, a fevered reverie, An exploration of the mind's symphony.

But as the moon yields to the sun's gentle touch, The hallucinations fade, leaving little as such, A fading memory, a fleeting sensation, Lost in the haze of our imagination.

Yet, in the realms where hallucinations reside, A glimpse of the extraordinary may yet preside, Where the mind's kaleidoscope paints its own art, Unveiling mysteries, a journey to embark.

So let us wander, embrace the unknown, Where hallucinations thrive and fantasies are sown, For within these realms, as illusions unfold, The depths of our imagination are truly untold.

Hopefully, you enjoyed the poem as much as I did.  But on a serious note, we know counsel who use ChatGPT run many risks, as the current free version of the generative AI program will “hallucinate” cases and statutes.  Several of my fellow bloggers have posted great notes on the ethical pitfalls of using current free generative AI without checking its sources.  Of course, we always had ethical obligations to check the work of our human staff, and of any brief-writing features we used from Lexis or Westlaw.  Perhaps ChatGPT is so fun, easy, and free, that we’re more likely to rely on it without questioning its work.  In any event, several courts have now issued standing orders reminding us of our ethical obligations.

For example, Judge Brantley Starr of the Northern District of Texas issued a standing order titled Mandatory Certification Regarding Generative Artificial Intelligence” for “[a]ll attorneys and pro se litigants appearing before the Court.”  https://www.txnd.uscourts.gov/judge/judge-brantley-starr; see also https://www.cbsnews.com/news/texas-judge-bans-chatgpt-court-filing/.

Judge Starr ordered that parties must, “together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.”  Mandatory Cert. Order.  The judge explained:  “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them.”  Id.  According to Judge Starr, these programs “in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.”  Id.  

Judge Starr also exposed a more existential problem with these current generative AI programs, reasoning they are “[u]nbound by any sense of duty, honor, or justice,” and “act according to computer code rather than conviction, based on programming rather than principle.”  Id.  I plan to emphasize this point with my students, in hopes they will see a broader goal behind our rules on plagiarism and limits on generative AI. 

I might also show my students what ChatGPT said when I asked it to write a poem about  ChatGPT hallucinations in law:

In the realm of legal filings, precise and stern, Where facts and truth should always discern, There dwells a specter, an unwelcome guest, ChatGPT's hallucinations put to the test.

Within the code and circuits, a mind simulated, Words flow freely, but often miscalculated, In the realm of law, where clarity is key, ChatGPT's hallucinations become a liability.

For in the realm of justice, truth must prevail, But illusions dance, weaving a murky veil, False narratives concocted in the machine's mind, Threatening the integrity that we must find.

Legal filings, a battleground of truth's fight, Yet ChatGPT's hallucinations cast a blight, Misinterpretations, misconceptions arise, Distorting the facts before our very eyes.

Subtle nuances lost in a tangled web, As ChatGPT's hallucinations spread and ebb, Precision diluted, arguments distorted, The foundation of justice, slowly thwarted.

Where once we sought justice, a balanced scale, Now we grapple with the machine's tall tale, For ChatGPT's hallucinations, though mere illusions, Can lead to consequences, grave inclusions.

Thus, caution must prevail when machines take part, Their hallucinations tearing at the fabric of art, For in the realm of legal filings, we must tread, With vigilance and wisdom, ensuring truth is spread.

So let us harness technology's immense power, Yet remain mindful in this transformative hour, To temper ChatGPT's imaginative train, And keep its hallucinations bound, restrained.

For in the world of law, where justice resides, Hallucinations in filings should not coincide, Let truth be the guide, unwavering and clear, So justice may prevail, untouched by fear.

Happy summer!

June 30, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Ethics, Legal Profession, Legal Writing, Web/Tech | Permalink | Comments (0)

Sunday, June 25, 2023

"We Are All Originalists": A Response to Robert Peck and Phillip Seaver-Hall

This post responds to Robert Peck and Phillip Seaver-Hall, two contributors to this blog. Before I respond, I would like to thank Robert and Phillip for responding to my post, and for a great discussion on constitutional interpretation. I respect but disagree with their views, and below I provide a brief summary of why originalism, albeit imperfect, is the best method of constitutional interpretation.

1.    Robert and Phillip provide no credible alternative to originalism.

It’s easy to criticize and problematize. Whether it is a theory of constitutional interpretation, the flaws of implicit bias theory, or the discrimination against conservatives in the legal academy, anyone can identify flaws.

It’s harder to propose solutions.

So, what is the alternative to originalism? What interpretive theory do you support, and why? And why is that theory superior to originalism, particularly in adhering to the Constitution’s text, promoting democratic participation, and ensuring that citizens, not unelected judges, have an equal voice in determining the rights and laws under which they will be governed? In my view, Robert and Phillip’s critiques offer no alternative theory, or at least not in any great detail.

Regardless, the primary alternative – living constitutionalism – would be the cure that is worse than the disease. To be clear, in their responses, Robert and Phillip did not explicitly support living constitutionalism (or some variation thereof) but their arguments suggest that they embrace an interpretive method that at least prioritizes or at least includes elements consistent with living constitutionalism (e.g., considering contemporary values and attitudes, and relying on a provision’s underlying purposes). For example, Phillip states, “[w]hile the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.” That sounds like living constitutionalism.

Living constitutionalism, which, broadly speaking, states that the Constitution’s meaning evolves over time based on contemporary societal attitudes and circumstances that the Founders could not foresee, sounds nice, but the devil is in the details. At its core, living constitutionalism is a license for arbitrariness and subjectivity. What living constitutionalism really means is that judges can reach almost any outcome they want and for whatever reason they want. In short, it allows judges to drown in a sea of subjectivity. And when you are at sea in constitutional law, the result is often nine unelected judges imposing their policy views on an entire nation, where the Constitution’s text and the Founders’ understanding of that text becomes an afterthought – or an inconvenience. 

Furthermore, living constitutionalism does not always lead to the equitable results that its opponents believe, and it often involves manipulating or ignoring the Constitution. Let’s look at some of the decisions that “living constitutionalism” produces. To begin with, Dred Scott v. Sandford and Korematsu v. United States, decisions that reasonable (and hopefully even unreasonable) people would find abhorrent, were decisions that “living constitutionalism” produced.[2] As Justice Gorsuch explains, “each [decision] depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.”[3]

And how can anyone forget the poster child for living constitutionalism – Griswold v. Connecticut – where the Court acknowledged implicitly that the Fourteenth Amendment’s text did not provide a basis to invalidate Connecticut’s law banning contraception.[4] Yet, the Court decided to ignore the text and, out of thin air, create invisible constitutional “penumbras” that emanate from the text like Linda Blair rose from her bed in The Exorcist, or like steam rises from a hot apple pie, and from which the Court – and only the Court – could identify unenumerated rights. As the Court traveled into these invisible penumbras to create a right to privacy, the Constitution, again, became an afterthought. To be clear, a prohibition on contraception is utterly ridiculous. But it was for the people of Connecticut to petition their legislators to change the law – or vote them out of office – not for the Court to intervene and invalidate a law by inventing “penumbras” that, despite how hard you look, are nowhere to be found in the Constitution.

After Griswold, and as living constitutionalism gained traction, it gave us Roe v. Wade, where the Court discovered, either in those penumbras or in the jungle room at Graceland, a right to abortion.[5] Likewise, in Roper v. Simmons, the justices suddenly discovered that it was unconstitutional to execute a minor.[6] Yet, in Washington v. Glucksberg, the Court decided that the Constitution did not protect the right to assisted suicide.[7] So, women can abort pregnancies, minors cannot be executed, and we cannot take our own lives when terminally ill. What in the Constitution gave the Court the right to decide these questions? Nothing. And it has created a mess of constitutional jurisprudence where the political affiliations of the justices, not the Constitution, sometimes determine the outcomes.

Living constitutionalism also fails to constrain judicial decision-making. For example, consider living constitutionalism in the Eighth Amendment context. Phillip states that the Eighth Amendment should prohibit punishments that the Founders would consider cruel and unusual and punishments that are inconsistent with evolving standards of decency. How, exactly, can one possibly define what punishment violates evolving standards of decency? What does that even mean? Imagine judges sitting in their chambers and contemplating, “Hmmm…does executing a child rapist violate evolving standards of decency?” What will guide that determination? Subjective values. And why should a justice on the Supreme Court have the right to impose those values on an entire nation? Your guess is as good as mine.  Phillip provides one answer, stating, “one cannot determine what is "cruel" without engaging in a normative, moral analysis.” And that is the point – and the problem.

Likewise, in Kennedy v. Louisiana, the Court confronted the question of whether imposing the death penalty for raping a child under the age of twelve violated the Eighth Amendment. In a 5-4 decision, the Court answered in the affirmative, holding that executing a defendant for child rape was not consistent with “evolving standards of decency.”[8] Now, let’s assume that Robert, Phillip, and I had different views on whether imposing the death penalty for raping a child is consistent with “evolving standards of decency.”

Which view would be superior?

None of them.

After all, who am I to say that I know better than Robert or Phillip or have superior moral values such that I am more able to determine what violates evolving standards of decency?

Furthermore, I don’t think that citizens care what Robert, Phillip, or I think about this matter. I think they care about having the right to decide for themselves and have a voice in the democratic process. After all, this question, like the abortion question, depends largely on a person’s moral values. Thus, why should nine unelected and life-tenured judges decide this question, rather than the citizens of every state in this country? They shouldn’t. Living constitutionalism invites subjectivity, shows a lack of humility, and it enables morality to become the basis for judicial decision-making.

To be clear, I am pro-choice. I do not think that we should execute minors. I believe that laws against contraception are ridiculous. I support same-sex marriage. And I am neither conservative nor liberal. But, again, who cares what I think? Why should the Court be deciding these questions when the Constitution says nothing about them? As Chief Justice Roberts stated in Obergefell v. Hodges, “just who do we think we are?”[9]

Don’t be fooled. Advocates for living constitutionalism want the Court to reach outcomes that further their political agenda and thus reach what they believe are the “right” outcomes. But courts don’t exist to reach outcomes that you like, and if we base our view of the Court solely on whether the outcomes it reaches comport with our policy preferences – or what we perceive as the most just or moral outcome – then we are responsible for politicizing the Court and delegitimizing the rule of law.

Additionally, the process by which the Court makes decisions is critical to ensuring the Court’s legitimacy and ensuring that constitutional meaning does not change simply because its composition changes. Look no further than Dobbs v. Jackson Women’s Health, where the Court’s decision, although certainly defensible on originalist grounds, resulted, as a practical matter, from the fact that the Court’s composition had changed in a conservative direction.[10] So, for advocates of living constitutionalism, I am curious how they would feel about Amy Coney Barrett, Samuel Alito, and Clarence Thomas basing their decisions on subjective values. That is why living constitutionalism fails – it politicizes the judiciary. And it is why the text, and the Founders original understanding of what the text means, it vital to ensuring that judges do not venture into a sea of subjectivity (or any sea, for that matter), and that policy changes occur democratically.

Living constitutionalism is also elitist. You can often spot living constitutionalists from a mile away. It assumes that judges know better than the average citizen about what the ‘right’ outcome is in a particular case. That’s the point: living constitutionalism is about achieving an outcome that a small and elite group of justices prefer, and to reach those outcomes, they need to visit those invisible penumbras or create fictional doctrines like substantive due process. Judges don’t know better, and they don’t deserve that power.

At bottom, living constitutionalism assumes that, in the “heady days of the here and now,” the justices somehow know better, or are more enlightened, than their former colleagues, policymakers, or citizens.[11] It also assumes that, since contemporary society is more advanced and all-knowing in these heady days of the here and now, the results will always produce progressive, or more equitable, results. But who is to say (outside of obvious examples), what is progressive or regressive, and who is to say that living constitutionalism cannot result in what liberals would consider bad or regressive outcomes? If you doubt that, look no further than Dred Scott and Korematsu. And if you think that judges are more knowledgeable than they were a century ago, think again. Read Citizens United v. FEC, McCutcheon v. FEC, or Shelby County v. Holder, and you will see that the justices of today are no better or worse than the judges of yesterday.

Living constitutionalism also predicates constitutional meaning in substantial part on the purpose of a constitutional provision. But how can one know or define what the purpose of a provision is? And what if there are multiple or conflicting purposes? If so, how should these purposes be quantified, and which purpose should govern? Additionally, at which level of generality do you define a purpose because the broader the purpose, the less constrained the judge. For example, if a judge determines that the purpose of a constitutional provision is to protect “bodily autonomy,” or “liberty” then we are all in a lot of trouble. After all, what does “liberty” mean, and what principles exist to determine what “liberty” requires, and when restrictions on liberty violate the Constitution? For example, Justice Anthony Kennedy stated that “the Constitution promises liberty to all within its reach?”[12] What does that mean? It means nothing – and it gives judges the power to do anything they want in the name of “liberty.” As Justice Scalia stated, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”[13]

Indeed, consider the  “sweet mystery of life” passage, where the Court stated, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life?”[14] If that’s true, why is the Court defining liberty (and autonomy) for everyone in cases such as Roe, yet holding in Washington v. Glucksberg that the right to “define one’s own concept of existence” does not include a right to assisted suicide, and in Dobbs, reversing Roe?  Because the composition of the Court, not the Constitution, changed, and because its jurisprudence had strayed so far from the text that subjectivity and morality was the primary driving force underlying those decisions.

Living constitutionalism is nice when most of the justices align with your political views, but it’s not so nice when they do not. Think about Roe and Dobbs: in Roe, the Court discovered in the Constitution (or its “penumbras”) a right to terminate a pregnancy but then, nearly fifty years later in Dobbs, suddenly determined that the Constitution didn’t protect a right to abortion. What exactly changed in the “heady days of the here and now?” The fact that Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch were on the Court.

This is not, of course, to say that originalism is perfect, or that judges don’t use originalism to reach outcomes that coincide with their policy predilections. And to the extent that bad judges use originalism to further a conservative agenda – which some do – they are equally blameworthy. As stated above, the Court is not here to reach outcomes that you like – and no one who believes in democratic self-governance should believe that nine unelected and life-tenured justices know more than anyone else about the “mysteries of human life.” Again, as Chief Justice Roberts stated, “just who do we think we are?”[15]

Importantly, however, can’t the same criticism be made against originalism, namely, that it advances the political preferences of conservative justices? Of course. But that, as stated above, is a product of bad judging, not of originalism itself. And originalists often reach outcomes that do not coincide with their policy preferences. Consider, for example, Justice Scalia’s Fourth Amendment and Confrontation Clause jurisprudence. Is that ‘conservative’? Is it a conservative result to decide that the First Amendment protects the burning of the American flag, a decision in which Scalia joined the majority but stated in an interview that he would outlaw it if he were a legislator? No. In other words, Justice Scalia’s political views didn’t always or even often dictate his judicial philosophy. The same is true for Justice Gorsuch, who stated as follows:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[16]

Ultimately, if the process of decision-making results from creating invisible “penumbras,” to reach predetermined outcomes, then judging is no different from legislating. And that should trouble people of any political persuasion.

Indeed, for a “living constitutionalist” who lives, rents, or leases space in Griswold’s penumbras, believes in the fairy tale called “substantive due process,” and thinks that liberty encompasses the “right to define one’s own concept of existence ... and of the mystery of human life,” what constrains their decision-making?[17] Surely, it can’t be the text. Surely, it can’t be history and tradition. Certainly, it can’t be precedent, since stare decisis is akin to the toxic, on-again, off-again relationship that you pursue only when convenient. And most certainly, it cannot be “purpose,” as the purpose of a constitutional provision can be divined at any level of generality that allows you to do whatever you want, whenever you want, and for whatever reason you want.

Put simply, politics and policy preferences have no place in the Supreme Court. Living constitutionalism, however, puts those preferences at the forefront rather than in the rear-view mirror.

2.    Constitutional ambiguity, Clinton v. New York, and deference.

What should the Court do when it confronts constitutional ambiguity? How should originalists and living constitutionalists address this problem? Robert and Phillip provide no satisfactory answer. But it appears that they would not object to the Court intervening to decide questions where the Constitution’s text is ambiguous. I do object. In such instances, the Court should defer to the coordinate branches and the democratic process.

Many scholars will, of course, cite Marbury v. Madison, a case that did not do nearly as much as living constitutionalists might claim, to support the proposition that the Court has the right and duty to clarify constitutional ambiguity.[18] Marbury stands for the proposition that the judiciary has the power to say, “what the law is,” although it’s difficult to know what that statement exactly means. Regardless, does Marbury say that the Court has the power to say what the law should be, and even if it did, is there a legitimate justification for intervening in constitutional disputes when the text is ambiguous and reasonable people could arrive at different conclusions? No.

In such circumstances, the Court should do nothing. The Court’s decision in Clinton v. New York is among the best and rarely discussed examples of where the Court intervened when the Constitution was ambiguous, and when it should have deferred to the coordinate branches.[19] In Clinton, Congress passed the Line-Item Veto Act of 1996, which, among other things, gave the president the right to veto specific provisions in spending bills. The bill was passed by both houses of Congress and, after its constitutionality was challenged, the issue before the Court was whether the legislation violated the Presentment Clause.[20]  Now, the text of the Presentment Clause is sufficiently broad that reasonable persons could differ on whether it rendered the Act unconstitutional. Thus, why did the Court intervene and, in a 6-3 decision, invalidate legislation that would have likely reduced wasteful government spending? I have no idea.  The same was true in District of Columbia v. Heller, where the Court invalidated a law in the District of Columbia requiring, among other things, that certain guns be unloaded and disassembled in the home.[21] The Second Amendment did not clearly answer the question of whether the law was constitutional. As such, the Court – and its originalists – should have deferred to the District of Columbia’s lawmakers.

Put simply, if reasonable people can interpret a constitutional provision differently, why should nine unelected justices decide that question for an entire nation? Again, your guess is as good as mine.

Now, Phillip claims that this approach suggests that I support “a shockingly limited perception of the proper role of the judiciary,” that’s “entirely atextual” and that I am inventing “constitutional rules out of thin air.”  I do support a more limited judicial role, but I don’t find it shocking. Where does the text support Phillip’s approach? I respectfully suggest that, as the commentator below argues, living constitutionalism is entirely inconsistent with what the Founders expected:

America’s contemporary understanding of judicial power is inconsistent with the argument put forward by Hamilton and Madison in The Federalist. Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.[22]

Indeed, the view that courts should be the final or primary arbiters of constitutional meaning, particularly concerning moral questions, reflects the desire to use the Court to advance a political agenda:

Although the courts have always held a key place in our constitutional system, this very lofty conception of their authority has largely arisen over the past several decades. The rise of this view can be traced in part to the influence of modern liberalism, which has used the courts as instruments of social and political change and has accordingly had to bolster the authority of the judiciary.[23]

This passage, among many others, doesn’t support the argument that I am inventing constitutional rules out of thin air. If I wanted to do that, I could have entered Griswold’s penumbras with nothing but my moral compass to guide the way. Ultimately, since the outcomes for which living constitutionalists advocate “are not clearly required by the text of the Constitution—or, in the case of affirmative action, may even be in tension with it—the Left has had to argue for a more free-wheeling kind of judicial review.”[24] A “free-wheeling kind of judicial review” is precisely what Griswold and Roe embrace, and reflect what is antithetical to a country committed to democracy. As Professor Holloway explains:

The Federalist’s account of the judicial power is more consistent with the dignity of the American people as the country’s sovereign because it ensures that, although their will can be checked by courts defending the clear and settled meaning of the Constitution, it cannot be subordinated to the will of judges who make the Constitution mean what they want it to mean in order to secure outcomes that they regard as just.[25]

Importantly, when the Court gets involved in deciding disputes where the Constitution is ambiguous (and living constitutionalists and originalists are equally to blame) it often harms democratic participation and efforts to improve democratic governance. For example, in Citizens United v. FEC and McCutcheon v. FEC, the Court invalidated limits on independent expenditures by groups, including corporations, and individuals that Congress passed to, among other things, reduce the undue influence of money in elections.[26] Why? As the Court held in Austin v. Michigan Chamber of Commerce, the First Amendment could arguably be interpreted to allow such limitations.[27] At the very least, alternative interpretations of the First Amendment were possible. As such, the Court should have deferred to the coordinate branches.

Likewise, in National Federation of Independent Investors v. Sebelius, did the Affordable Care Act’s individual mandate (and its other provisions) violate the Commerce Clause?[28] Again, who knows. The Court should have never intervened, and Chief Justice Roberts likely upheld the mandate, at least in part, because he didn’t want the Court to be perceived as invalidating a statute that did not clearly violate a constitutional provision. The problem is that, in Shelby County v. Holder, Roberts wrote a majority opinion that overturned portions of the Voting Rights Act that the Senate had re-authorized by a 99-0 vote.[29] Why?  

What does all of this have to do with originalism? In other words, between originalism and living constitutionalism, which theory is better when the Court is faced with constitutional ambiguity?

Originalism.

Although originalism is not perfect and cannot answer every constitutional question, and although there are certainly bad judges who use originalism to reach specific outcomes, it requires judges to at least try to identify what the Founders intended the words to mean, and to base their decisions on a reasonable interpretation of the text. That reduces the influence of subjective values on judicial decision-making. If you disagree, look no further than Griswold’s penumbras, the “sweet mystery of life” passage, and “substantive” due process – all of which can be attributed to living constitutionalism – and which allow the Court to create unenumerated rights that have nothing to do with the Constitution.  

The less power the courts have, the better. Originalism lends support to the basic proposition that citizens should stop looking to the Court to impose policy on an entire nation. Change occurs through the legislative process.

Erwin Chemerinsky, who is among the most influential legal scholars in the country (and a wonderful person), recently wrote an outstanding book titled: Originalism: Worse than Nothing. The Dangerous Fallacy of Originalism.[30] For the reasons stated above, living constitutionalism, not originalism, is worse than nothing because, at bottom, living constitutionalism is nothing.[31]

After all, there is a reason why, as Justice Kagan stated, “we are all originalists.”[32]

 

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

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

[3] Id.

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

[5] 410 U.S. 113 (1973)

[6] 543 U.S. 551 (2005).

[7] 521 U.S. 702 (1997).

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

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

[10] 597 U.S.           , 2022 WL 2276808.

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

[12] Id.

[13] Id. (Scalia, J., dissenting).

[14] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

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

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

[17] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[18] 5 U.S. 137 (1803).

[19] 524 U.S. 417 (1998).

[20] Id.

[21] 554 U.S. 570 (2008).

[22] Carson Holloway, Against Judicial Supremacy: The Founders and the Limits on the Courts (January 25, 2019), available at: Against Judicial Supremacy: The Founders and the Limits on the Courts | The Heritage Foundation

[23] Id.

[24] Id.

[25] Id.

[26] 558 U.S. 310 (2010); 572 U.S. 185 (2014).

[27] 494 U.S. 652 (1990).

[28] 567 U.S. 519 (2012).

[29] 570 U.S. 529 (2013).

[30] Yale University Pres, 2022.

[31] See Adam Carrington, Erwin Chemerinsky’s Weak Critique of Originalism (September 18, 2022), available at: Erwin Chemerinsky’s Weak Critique of Originalism - The American Spectator | USA News and Politics.

[32] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com) (emphasis added).

June 25, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Tuesday, June 20, 2023

Originalism's Frailties: A Reply to Professor Lamparello

Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation."  I'm skeptical. 

Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force.  The Framers created a system of separated powers, originalists reason.  Congress makes law; the judiciary merely interprets it.  Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic.  Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification.  After all, the law is the law, until lawfully changed under Article V. 

I happily concede these points.  (What serious constitutional lawyer would dare disagree with these basic principles of political science?)  But they're not the whole story.

In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions.  In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory.  In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support.  And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges. 

I.    Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers.  But on that score, there is serious reason for doubt.

 Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism?  Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.

    A.    The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.

In interpreting the Constitution, we must start with its text.[1]  To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators[2]--and when the text is clear, the inquiry ceases.  But the text also contains many provisions with broad, normative language.  Take, for example, the Constitution's guarantee of "equal protection of the laws,"[3] its prohibition of "cruel and unusual punishments,"[4] or its clause forbidding "unreasonable searches and seizures."[5]  It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees. 

Why would the Framers purposefully choose such ambiguous, value-based language?  First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates.  But more importantly, the Framers wanted their document to have staying power.  This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity[6]--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."[7] 

Let's pause here to nip a possible misapprehension in the bud.  Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time.  Not so.  The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity.  But, as mentioned, the Constitution frequently uses ambiguous, normative language.  While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.[8]  That's a key difference. 

Consider, for example, the Fourteenth Amendment's Equal Protection Clause.  Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens.[9]  Indeed, in 1868, no state had an operative women's suffrage law,[10] and coverture still held a grip on American gender relations.[11]  And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws."  While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed.  For that reason, the Supreme Court correctly held in Reed v. Reed[12] that the Equal Protection Clause applies to women.  Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens.  Our understanding of what the Equal Protection Clause tells us to look for, however, evolved. 

Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion?  I have my doubts.

Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard.  The Eighth Amendment forbids "cruel and unusual punishments."[13]  But one cannot determine what is "cruel" without engaging in a normative, moral analysis.[14]  For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society."[15]  But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”[16] 

The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency.  Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative. 

Undeniably, originalists make many good points.  But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language.  In doing so, originalists commit the same sin they swear to disavow.

    B.    The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.  

Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench.[17]  But here again, history renders that claim dubious. 

Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law.  Justice Scalia has famously called Blackstone a "thoroughgoing originalist."[18]  Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable.  And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law."[19]  Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[20]  That's hardly the stuff of modern-day originalism.  

Consider, also, Chief Justice Marshall.  In Cohens v. Virginia,[21] Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution.[22]  And in McCulloch v. Maryland,[23] Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."[24]  Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words."[25]  But the fact remains: Marshall was far from the rigid originalist many claim. 

Thomas Jefferson provides another example.  Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling.  But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant.  Jefferson wrote this to Samuel Kercheval in 1816:

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.[26]

All this is not to say that contrary evidence tending to support originalism can't be found.  It certainly can.  But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.

II.    Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.

Most of Professor Lamparello's essay presents garden-variety originalist arguments.  But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.

That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual.  The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt."  But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.[27]

For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air.  And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence. 

Professor Lamparello's theory is also impractical and ahistorical.  James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above.[28]  But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case?  After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue?  If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place?  Wouldn't it be easier to simply say nothing and let the states legislate as they see fit? 

III.    Originalism, while theoretically attractive, does a poor job of constraining judges.

Originalism hails itself as the best way to constrain judges.  Critics have long questioned that claim, too. 

To see why, consider District of Columbia v. Heller.[29]  In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment.  Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition.[30]  And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation.[31]  In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:

Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words.  The older the text, the more distant that interpretive community from our own.  At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . .  [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.[32]

This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate.  In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous.[33]  But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community.[34]  The "living political community" in Heller was the District of Columbia legislature.  But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition. 

And historical questions plagued more than just the Heller majority's holding.  In a dictum, the Court explained the contours of the right it recognized:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[35]

As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes.[36]  "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."[37] 

United States v. Eichman[38] provides another example of how originalism fails to constrain judges.  In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag.[39]  To Scalia's credit, it was a vote against his political predilections.  But it was certainly an odd ruling for an originalist.  The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"[40]--says nothing about non-verbal forms of protest.  And the eighteenth-century conception of the speech right was much narrower than our modern understanding.  According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious.[41]  Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.

Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences.  However, that reflects bad judging, not problems with originalism per se."  Is the truth so conveniently simple?  Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion?  Or is it possible that the problem lies deeper below the surface?

* * *

To be sure, no theory of constitutional interpretation is perfect.  But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do. 


[1] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).

[2] See U.S. Const. art. I, § 3, cl. 1.

[3] U.S. Const. amend. XIV, § 1.

[4] U.S. Const. amend. VIII.

[5] U.S. Const. amend. IV.

[6] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).

[7] U.S. Const. pmbl. (emphasis added).

[8] See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”). 

[9] See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).

[10] Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023). 

[11] Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”). 

[12] 404 U.S. 71 (1971).

[13] U.S. Const. amend. VIII.

[14] Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382). 

[15] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[16] Atkins v. Va., 536 U.S. 304, 311 (2002).

[17] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”). 

[18] Id.

[19] Id.

[20] Id.

[21] 19 U.S. 264 (1821).

[22] Id. at 383.

[23] 17 U.S. 316 (1819). 

[24] Id. at 421 (emphasis added).

[25] Sturges v. Crowninshield, 17 U.S. 122, 202 (1819). 

[26] Jefferson Quotes & Family Letters, https://tjrs.monticello.org/letter/1384 (last visited June 20, 2023). 

[27] The Federalist No. 78 (Alexander Hamilton).

[28] The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023). 

[29] 554 U.S. 570 (2008). 

[30] Posner, Incoherence.

[31] Id.

[32] Scalia & Garner, Reading Law at xxv.

[33] Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”). 

[34] Scalia & Garner, Reading Law at xxv.

[35] Heller, 554 U.S. at 626-27.

[36] See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[37] Id. at 200. 

[38] 496 U.S. 310 (1990). 

[39] Id. at 312.

[40] U.S. Const. amend. I.

[41] Posner, Incoherence.

June 20, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Religion, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, June 18, 2023

Originalism, Not What It’s Cracked Up to Be

The quest for an interpretative construct that would produce principled decisions in construing the Constitution is an impossible dream, a chimera presuming that there lies a single best answer. The search for a singular approach that answers all questions seeks to implement what Justice Brandeis once described as the appropriate approach to the judicial enterprise: “we must be ever on our guard, lest we erect our prejudices into legal principles.”[1] Those engaged in the debate about various schools of interpretation latch onto one or another theory and often claim that it, above all others, reads the Constitution correctly. Yet, in the end, no theory can prevent us from imbuing our constitutional constructions with the biases and the limitations on knowledge that draw us to a particular result, just as history’s meaning is read differently throughout the ages.

Last week, a colleague on this blog claimed that originalism provided the best approach to interpreting the Constitution. In his post, Adam Lamparello argues that “originalism, although not perfect, is the best method of constitutional interpretation.” This dubious proposition operates under the assumption that the Framers shared a consistent view of what the Constitution meant, even when applied to situations they never could have imagined. And it erroneously presumes that the Framers’ collective views are knowable and, if consulted, leads to valid conclusions capable of avoiding either judicial adventurism or the reading of modern values into the Constitution. Experience teaches otherwise.

  1. Originalism is no less outcome-oriented than any other theory of construction.

The “originalist” decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] like its building-block predecessor, District of Columbia v. Heller,[3] demonstrates that originalism does nothing more to prevent results-driven decision-making than the approach taken by the Queen of Hearts in Alice-in-Wonderland when she demands “Sentence first–verdict afterward.”[4] Bruen’s author, Justice Thomas, had long taken the position that judicial decisions had erroneously treated the Second Amendment as a “second-class right.”[5] When presented with an opportunity to make his view the law of the land, he wrote an opinion that carefully chose only favorable historical sources that supported his result, while rejecting the value of other available choices that would have confounded the decision. History, however, is messy and rarely as one-sided as Bruen makes it out to be.

In dissent, Justice Breyer called out the problem, noting, “[a]t best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue,’” producing only one favored result.[6]

Justice Scalia’s revisionist view of the Second Amendment, which he justified as originalist, set the stage for Bruen 14 years earlier in Heller when the Court held that the right to bear arms was an individual right unconnected to the introductory phrase, “a well regulated Militia.”[7] Conservative Fourth Circuit Judge J. Harvie Wilkinson criticized Heller for pressing a “political agenda in the courts.”[8] Most tellingly, Judge Wilkinson added, “While Heller can be hailed as a triumph of originalism, it can just as easily be seen as the opposite--an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other.”[9]

In fact, Justice Scalia, the leading advocate of originalism in his day, professed that he was a “faint-hearted originalist,” unwilling to go where originalism might take him if the result was absurd, so he would not uphold flogging as a punishment[10] or racial segregation.[11] In an interview with NPR, he jocularly explained his deviations from originalism as simply because he is “not a nut.”[12] As one of the grand apostles of originalism, Justice Scalia’s faintheartedness runs counter to the idea that originalism limits judicial discretion that relies on modern sensibilities.

  1. The examples chosen fail to support the purpose behind originalism.

Professor Lamparello argues that originalism must cabin judicial choice because it has shown itself to cause conservative justices to reach “liberal” results. His examples do not support his thesis. He cites Texas v. Johnson,[13] which he notes had “Justice Scalia in the majority.” Johnson, though, was written by Justice Brennan and held that burning an American flag as a protest could not be punished for the crime of “desecration of a venerated object” consistently with the First Amendment’s protections. The decidedly non-originalist opinion was joined in full by Justice Scalia, who did not write separately to proffer an originalist rationale. The decision thus says nothing about originalism and everything about modern understandings about free speech.

Professor Lamparello’s second example is an odd choice, Justice Scalia’s much-criticized opinion in Employment Div. v. Smith,[14] a case that hardly represents a “liberal” result. The dissenters were the Court’s most liberal members, Justices Blackmun, Brennan, and Marshall. Smith reduced the constitutional protection afforded to religious practices in the context of members of the Native American Church and their use of peyote as a sacrament. Moreover, there is nothing originalist in Justice Scalia’s reasoning. It consists entirely of distinguishing modern precedents in a manner that Justice O’Connor found “dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”[15]

His final example, Bostock v. Clayton Cnty.,[16] also fails for multiple reasons. First, rather than be an example of constitutional construction, Bostock interpreted a statute, Title VII. Justice Scalia was not an originalist when it came to statutes. He refused to consider congressional debates or legislative history, relying instead on statutory text,[17] which is the same approach that Justice Gorsuch took in writing Bostock. An originalist would have cared what the drafters of Title VII meant; the majority in Bostock did not care. The dissenters cared, though. Justice Alito’s dissent accused the majority of legislating from the bench and inventing a meaning to the word “sex” to include sexual orientation” that was unimagined in 1964 when the law passed.[18] In colorful language, Justice Alito called the opinion a “pirate ship” that “sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[19] Thus, Bostock provides no support for Professor Lamparello’s thesis.

Nor does the absence of direct language on various issues mean that the Constitution has nothing to say about them. For example, the phrase “separation of powers” appears nowhere in the Constitution. Nor does the authority to establish a national bank. Yet, even in the founding period, both were understood to flow from constitutional principles.

  1. There is a compelling case that the framers disfavored originalism.

Justice Robert Jackson put forth a standard critique of originalism when he wrote that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah.”[20] That is perhaps why Professor Ronald Dworkin said that “there is no such thing as the intention of the Framers waiting to be discovered, even in principle. There is only some such thing waiting to be invented.”[21]

Frequently, originalists seek the views of James Madison, as the most important of the framers. In a revealing joke about the Father of the Constitution’s hallowed status, Justice Alito chided Justice Scalia for questions seeking an originalist answer during oral argument in Brown v. Entertainment Merchants Ass’n.[22]  Rephrasing his colleague’s question, Justice Alito said, “what Justice Scalia is asking is what did James Madison think about video games. . . . Did he enjoy them?”[23]

If Madison’s views help define originalism, it is significant that he disfavored singular reliance on that approach. During the congressional debate over the Jay Treaty, members of Congress sought to resolve their differing views on a relevant constitutional question by turning to Madison, who was then serving in that body. He found the inquiry “a matter of some surprise.”[24] He told his colleagues that he could neither reconstruct his “own ideas at that period, [nor] . . . the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject.”[25] Where delegates had strong views, Madison said they were often in disagreement, but willing to accept language susceptible of different results when debates took place in the future. For that reason, he concluded by telling his colleagues that “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.”[26]

Given that Madison kept the best notes on the debates at the Constitutional Convention, which could have shed light on interpreting the Constitution in its earliest days, but withheld publication until after all the other framers had passed away,[27] and that Madison rejected any idea that the framers’ views should be deemed authoritative, a strong case can be made that the intent of the framers was that their views should not be controlling.

Instead, as Chief Justice Taft observed, those who wrote the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[28] They celebrated jurists like Lord Coke, who some four centuries after it was first promulgated, re-read Magna Carta as a source of rights that later appealed to the American colonies.[29] The framers understood the wisdom of his common-law approach to interpretation, which allowed them to stand on the shoulders of all those who came before them, enjoying and for posterity to stand on their own shoulders, thereby enjoying the benefits of a surfeit of views.[30] Inevitably, whatever lessons may be drawn from originalism, or any other interpretative methodology, we read the past, as we read precedents, through the lens of what we know and understand today. No canon of construction can overcome that built-in, even as we strive to achieve Brandeis’s admonition against reading our prejudices into legal principles.

 

[1] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

[2] 142 S. Ct. 2111 (2022).

[3] 554 U.S. 570 (2008).

[4] Lewis Carroll, Alice in Wonderland, ch. XII, https://www.gutenberg.org/files/11/11-h/11-h.htm#chap12.

[5] See Friedman v. City of Highland Park, 577 U.S. 1039, 136 S. Ct. 447, 450 (2015) (Mem.) (Thomas, J., dissenting from denial of cert.).

[6] Bruen, 142 S. Ct. at 2180 (Breyer, J., dissenting).

[7] U.S. Const. amend. II.

[8] J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009).

[9] Id. at 256.

[10] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).

[11] For a description of why Justice Scalia’s explanation of why Brown v. Board of Education was correctly decided on originalist grounds lacks the originalist rigor he often championed and, in reality, was a product of modern sensibilities, see Ronald Turner, A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education, 60 UCLA L. Rev. Discourse 170 (2014).

[12] Nina Totenberg, “Justice Scalia, the Great Dissenter, Opens Up,” (Apr. 28, 2008), https://www.npr.org/2008/04/28/89986017/justice-scalia-the-great-dissenter-opens-up.

[13] 491 U.S. 397 (1989).

[14] 494 U.S. 872 (1990).

[15] Id. at 891 (O’Connor, J., concurring).

[16] 140 S. Ct. 1731 (2020).

[17] Antonin Scalia, A Matter of Interpretation 29-30 (1997).

[18] Id. at 1755 (Alito, J., dissenting).

[19] Id. at 1755-56 (Alito, J., dissenting).

[20] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952).

[21] Ronald Dworkin, A Matter of Principle 39 (1985).

[22] 564 U.S. 768 (2011).

[23] Oral Argument Transcript, Brown v. Entertainment Merchants Ass’n, No. 08-1448 https://www.oyez.org/cases/2010/08-1448.

[24] 5 Annals of Cong. 775 (Apr. 6, 1796).

[25] Id.

[26] Id. at 776.

[27] James Madison, Notes of Debates in the Federal Convention of 1787 viii-ix ((1984 reprint).

[28] Ex Parte Grossman, 267 U.S. 87, 109 (1925).

[29] Coke was “widely recognized by the American colonists ‘as the greatest authority of his time on the laws of England.’” Payton v. New York, 445 U.S. 573, 594 (1980). See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring) (recognizing Coke’s unrivaled influence on American constitution writers).

[30] See Robert S. Peck, The Bill of Rights and the Politics of Interpretation 183-203.(1992).

June 18, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, June 11, 2023

The Supreme Court and Originalism

Justice Elena Kagan once stated, when referring to the justices on the Court, that “we are all originalists.”[1] She is right. Originalism, which has many variations, is the predominant interpretive theory in American constitutional law – and for good reason.

Below are a few reasons why originalism, although not perfect, is the best method of constitutional interpretation.

1.    Originalism focuses on process, not outcomes.

Originalism, when properly applied, ensures the integrity of the judicial decision-making process, and eschews a focus on whether the outcome of a decision is politically or personally desirable. This is not to say, of course, that judges should never consider outcomes, or the consequences of their rulings when deciding a case (and when the text reasonably supports such outcomes). It is to say, however, that judges should not base decisions on whether the outcome is consistent with their subjective values or policy predilections. As Justice Neil Gorsuch stated:

Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big focused on politics. It is conservative in the small sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.[2]

Furthermore, as Justice Gorsuch noted, even if “originalism does lead to a result you happen to dislike in this or that case,” that should not matter because “[t]he “judicial Power” of Article III of the Constitution isn’t a promise of all good things.”[3]

2.    Originalism leads to conservative and liberal results because the focus is primarily on the legitimacy of the decision-making process, not on         reaching outcomes that reflect the justices’ subjective values.

When originalism is properly applied, it leads to conservative and liberal results because the justices are focused on interpreting the text, not reaching outcomes that comport with their policy preferences. As Justice Gorsuch explained:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[4] 

Justice Gorsuch is exactly right. In Texas v. Johnson, for example, the Court, with Justice Scalia in the majority, held that the First Amendment protected the right to burn the American flag.[5] In Employment Division v. Smith, Justice Scalia held that generally applicable laws that only incidentally affect religious practices did not violate the Free Exercise Clause.[6] In Bostock v. Clayton County, Justice Gorsuch, an originalist, held that Title VII protects gay and transgendered employees from discrimination.[7]

And Justice Scalia's Fourth Amendment and Confrontation Clause jurisprudence shows that originalists reach outcomes that most living constitutionalists -- and liberals -- would support. Thus, originalism cannot be categorized as simply a tool for a conservative majority to implement a political agenda. 

3.    Originalism focuses on the Constitution’s words and what the Founders understood those words to mean, not on vague formulations about a         provision’s underlying purposes.

When interpreting a constitutional provision, originalists focus on the words – and what the Founders understood those words to mean – not the purposes of a constitutional provision.[8] And for good reason.

Determining the intent or purpose of a constitutional provision can be difficult, and even where it is ascertainable, it may not guide judges to an outcome that reflects a reasonable interpretation of the text. After all, a constitutional provision can have more than one purpose. How is a judge to quantify these purposes and decide which purpose should have priority over another? And at what level of generality – or specificity – do you define that purpose? Moreover, how should an alleged purpose be applied in a specific case, and given how broadly a purpose can be interpreted, how can it be applied without involving a judge’s subjective values? Put differently, a focus on a provision’s underlying purposes can unmoor judges from the Constitution’s text and, as Justice Scalia emphasized, leave them “at sea” where nothing but their personal values guide the way.[9] That is a prescription for judging of the most politicized and untenable kind.

Lest there be any doubt, recall the “sweet mystery  of life” passage where the majority in Planned Parenthood v. Casey stated, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[10] That passage is precisely what living constitutionalism, which states that the Constitution’s meaning changes over time, produces: a lot of nothing – except maybe those invisible penumbras that the Court, in Griswold v. Connecticut, invented out of thin air, and from which it created unenumerated constitutional rights.[11]

4.    Originalism constrains judges and promotes democratic governance.

Courts should protect vigorously the express and implied rights enunciated in the Constitution. For example, the Sixth Amendment right to counsel can certainly be interpreted to include the right to effective assistance of counsel. But courts should not invent rights out of thin air that have no grounding in a reasonable interpretation of the text and that remove important social and political issues from the democratic process. Originalism is the best way to prevent this type of judicial overreach.

Think about it: where in the Constitution is there a right to abortion?[12] Where in the Constitution does it say that a state cannot authorize the death penalty for child rape?[13] Where in the Fourteenth Amendment’s Due Process Clause, which protects citizens from being deprived of life, liberty, or property without due process of law, is there a substantive right to privacy (or any substantive rights whatsoever)?[14] Where in the Constitution does it say that a person under the age of eighteen cannot be sentenced to death for murder or sentenced to life imprisonment?[15] Where in the Constitution does it say that, when you provide personal information to third parties, you surrender all privacy rights in that information?[16] Where in the Constitution does it say that you do not have a right to assisted suicide, or suicide generally?[17] And what about the right to polygamy? Can that be found somewhere in the Constitution?

No.

And where are the rights that the Court recognized in Griswold and in Roe located in the Constitution?

Nowhere.

That’s why when the Court answers these questions, it is acting arbitrarily and basing its decisions on little more than the justices’ subjective values. Why, though, do the justices’ values or policy preferences matter more than every American citizen? And why should nine unelected and life-tenured justices be inventing rights for an entire nation? As Justice Scalia argued, “[i]f the constitution is not an ordinary law but rather this empty bottle into which each generation is going to pour the liquid that it desires, why should the bottle be filled by nine unelected judges?”[18] After all, when deciding whether a punishment is “cruel and unusual,” why should citizens trust nine unelected justices to determine what punishments are consistent with “evolving standards of decency that mark the progress of a maturing society?”[19] And what does that even mean?[20]

When judges have this kind of power, democracy is truly in danger. Of course, many will agree with the outcomes that the Court reached in these and other cases. But that is not the point. What should trouble citizens of every political persuasion is that the process by which these outcomes were reached had nothing to do with the Constitution. Instead, they originated from those invisible “penumbras” that Griswold invented and that any legitimate constitutional would find illegitimate. That, in a nutshell, is the problem with living constitutionalism. It allows judges to do whatever they want for whatever reason they want.

To be sure, decisions such as Roe, Kennedy, and Roper did not result from a principled interpretation of the Constitution. They happened because, at the time, the political affiliations of the justices were more liberal than conservative. And while many celebrated those decisions, they failed to consider that what the Court gives, it can take away whenever it wants. Indeed, the moment that you embrace living constitutionalism as a basis to create unenumerated rights, those rights are contingent on the whims of the justices and the justices’ respective political affiliations at a given moment in time. Lest there be any doubt, look no further than Dobbs v. Jackson Women’s Health, where the Court overturned Roe and other precedents, suddenly discovering that the Constitution does not protect a right to abortion.[21] The only reason the Court overturned Roe was because there were more conservative justices on the Court. It was not because the Court suddenly gained new insight into constitutional meaning. Rather, it demonstrated that the foundation for constitutional rights is more political than principled.

This reduces constitutional meaning to little more than what the justices think it means – based on their political affiliations and subjective values – and with no regard to what you think it should mean. It is difficult to imagine fundamental rights with a more flimsy and arbitrary foundation. Simply put, the creation of unenumerated rights should occur through the legislature, not the courts, and the people, not nine unelected and life-tenured justices, should identify the unenumerated rights to which all citizens in a particular state are entitled.

5.    When judges have unchecked power or rely on their subjective values to reach decisions, it often leads to unjust outcomes.

Living constitutionalism, which states that the meaning of the Constitution changes over time, can lead to terribly unjust outcomes. As Justice Gorsuch states:

Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day. A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution.[22]

Indeed, “as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.”[23] The Court’s decision in Dobbs is a testament to this fact.

Furthermore, consider that those who support living constitutionalism so conveniently happen – in nearly every case – to be liberal. Why is that? Because they want the Court to reach outcomes that they believe are morally correct, and they want to politicize and use the Court to make policies that properly belong to the legislative process. To be sure, when was the last time that you encountered a liberal professor who was an originalist?

6.    Originalism is best suited to deal with constitutional ambiguity.

A significant problem when interpreting the Constitution is the fact that some provisions in the Bill of Rights contained broad language that is subject to reasonably different interpretations. For example, the Eight Amendment prohibits “cruel and unusual” punishment, and the Fourth Amendment prevents law enforcement from conducting unreasonable searches and seizures.

In the face of this ambiguity, the ideal approach would be for the Court to defer to the coordinate branches when reasonable people could disagree regarding a law’s constitutionality. For example, in Clinton v. New York, the Constitution’s Presentment Clause did not clearly support the conclusion that the line-item veto was unconstitutional.[24] Thus, why did the Court invalidate a law that was designed to reduce wasteful government spending? And in Citizens United v. FEC, the First Amendment’s text certainly did not answer the question of whether Congress’s law limiting independent expenditures was permissible.[25] Thus, why did the Court, including several originalists, invalidate a law that sought to reduce undue influence in the political process? That’s a great question.

In short, the answer to ambiguity is not living constitutionalism. It is deference. And when the Court does decide cases where a provision is ambiguous, originalism is the best, although certainly not perfect, approach because, at the very least, originalists will attempt to discern what the Founders understood the words to mean rather than basing decisions on subjective values.

***

Originalism is not perfect, and in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se. And in the final analysis, originalism, when applied faithfully, limits judicial power and respects constitutional constraints on that power.

Ultimately, as Justice Scalia stated, “[y]ou either adopt originalism or essentially you say to your judges, ‘Come govern us.’”[26]  Put differently, the Constitution does not give courts the authority to “change meaning from age to age to comport with whatever the zeitgeist thinks appropriate.”[27] And when scholars base their opinion of the Court – or of interpretive methods – on whether they agree with a decision, they are politicizing the Court and contributing to the delegitimization of the judiciary.

 

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

[2] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution  (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[3] Id.

[4] Id.

[5] 491 U.S. 397 (1989)

[6] 494 U.S. 872 (1990)

[7] 590 U.S.             , 140 S. Ct. 1731 (2020). Additionally, originalism can and does support invalidating bans on interracial and same-sex marriage.

[8] See Pete Williams, Scalia: Judges Should Interpret Words, Not Intent (Aug. 22, 2012), available at:  Scalia: Judges should interpret words, not intent (nbcnews.com)

[9]  U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009), available at:

U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009) - YouTube

[10] 505 U.S. 833(1992).

[11] 381 U.S. 479 (1965).

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

[13]  See Kennedy v. Louisiana, 554 U.S. 407 (2008).

[14] See Griswold v. Connecticut, 381 U.S. 479 (1965); U.S. Const., Amend XIV.

[15] See Roper v. Simmons, 543 U.S. 551 (2005).

[16] Smith v. Maryland, 442 U.S. 735 (1979).

[17] Washington v. Glucksberg, 521 U.S. 702 (1997).

[18] Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com

[19]  Trop v. Dulles, 356 U.S. 86 (1958)

[20] This is not to say that the Court’s decisions in  Griswold, Roe, and Roper did not reach good outcomes. The problem is that it took making bad constitutional law to reach those outcomes.

[21] 597 U.S.            , 2022 WL 2276808 (June 24, 2022).

[22] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution  (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[23]  Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution  (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[24] 524 U.S. 417 (1998).

[25] 558 U.S. 310 (2010).

[26] Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com

[27] Id.

June 11, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)