Appellate Advocacy Blog

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.

2. 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.

3. 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).

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 C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.[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.

When Is a Judge Unfit, and What Can be Done About It?

The controversy surrounding Judge Pauline Newman of the Federal Circuit raises an interesting question for appellate advocates. Judge Newman, age 95 and appointed by President Reagan in 1984, was asked to step down by the circuit’s chief judge but declined the suggestion. Allegations against her include bouts of paranoia in which she claims that the court is spying on her, that her staff is betraying her and at least one of them should be arrested, that she engages in conversations with dead colleagues, and that she forgets how to log into her computer or where files on it can be found.

She is now being investigated by a special committee of the circuit about her competency to continue to serve as a judge. A recently released 26-page Order requires Judge Newman to undergo “neurological evaluation and neuropsychological testing to determine whether she suffers from a disability.” The order follows a previous one where Judge Newman refused to comply, labeling the requested medical records “irrelevant,” objecting to examinations by court-designated professionals and to their scope, and asking that the determination of her fitness to remain on the bench be determined outside the circuit. The new order rejects those objections and includes more specificity about what the investigative committee of fellow judges requires.

Judge Newman has responded with a lawsuit, filed May 10, in the federal district court in Washington, DC. It denies that she suffered a heart attack that prevented her from sitting during the summer of 2021, asserting instead that she was a member of 10 panels from June to September of that year and issued at least eight opinions from those sittings. Her productivity, it alleges, eclipses that of all but two colleagues. It further asserts that the circuit, by unanimous vote of the other judges, refuses to assign her any more cases. The complaint further states that Judge Newman’s judicial assistant and law clerk were reassigned without leave for the judge to replace them.

The complaint argues that the treatment of Judge Newman, constructively a removal from office, violates separation of powers because she serves “during good Behaviour,” removable from office only through impeachment and conviction by Congress. It further asserts that the circuit judicial council acted prematurely under the Judicial Conduct and Disability Act of 1980, which requires a completed investigation before action, comparing the procedure utilized to “Sentence first—verdict afterwards” from “Alice’s Adventures in Wonderland.” It further asserts a Fifth Amendment due-process violation “because the special committee is composed of witnesses to Plaintiff’s alleged disability.”

Judge Newman also claims the court has violated the First Amendment by virtue of a “Gag Order [that] forbids Plaintiff or her attorneys from engaging in any speech that would in any way publicize the ongoing disciplinary proceedings against Plaintiff.” Indeed, until the complaint was filed, the court’s order was filed under seal and released only because of the lawsuit.

Finally, Judge Newman asserts most of the authority claimed by the investigating committee is unconstitutional, due to the vagueness of “what constitutes a mental disability that renders a judge ‘unable to discharge all the duties of office’” and what remedies the judicial council may employ.

For appellate counsel facing a court with a judge displaying erratic behavior or otherwise unable to follow the argument, what happens in Judge Newman’s circumstances could be instructive. We may learn what authority courts have to intervene when a judicial council acts, what authority judicial councils may exercise, and what behavior provides grounds for action against a judge. We may also learn what appointment by the president and confirmation by the Senate, subject to impeachment, means in these circumstances.

Of course, appellate counsel has no means to challenge the assignment of a judge to a matter, absent a clear conflict of interest. Still, the Disability Act and the Rules for Judicial-Conduct and Judicial-Disability Proceedings provide a complaint process, which basically follows the process that the Federal Circuit employed – although in this instance the Chief Judge filed the complaint herself.

We have at least one historic precedent of a court acting to restrict a judge who had lost the ability to discharge his duties. Justice Gabriel Duvall, a once prominent Maryland lawyer and judge appointed to the Supreme Court by President Madison, became so sick and deaf during his final years on the bench that Chief Justice John Marshall ordered that the clerk not supply the infirm justice with any supplies, lest he actually write something about one of the cases before the Court.

Today, we live in a different world, but the problem of a judge who does not recognize when the time to step down has come remains. Whether that time has come for Judge Newman or not, her case and the Federal Circuit’s actions may provide some answers about what a court can do.

Comments Against Angel Reese Call Us to Check for Bias in Our Writing

As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester.  Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias.  Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express.  While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing. 

One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year.  Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University.  These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game.  Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails.  Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop.  In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”   

The difference:  Clark is white, while Reese is Black.  Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.

As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes,  https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023).  Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.”  Id.   

Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents.  Sultan explained:  the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023).  “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.”  Id.

Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work.  For example, he described what he called stereotypes of sports as:

When Black players are aggressive, and talk trash, they are thugs and animals.

When white players are aggressive, and talk trash, they are passionate and fiery.

This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"

https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/

What can we learn from this incident to catch less obvious bias in our own writing?  The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention.  One shorter answer:  many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias.  Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too.  There are many thoughtful ideas on addressing bias in our legal publications.  For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law:  The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).

I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose.  My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.

Why Paul Clement Is So Good

Attorney Paul Clement is among the best attorneys – and oral advocates – in the United States. And for good reason. His oral advocacy skills are second to none. In fact, listening to even one of Paul Clement’s arguments before the United States Supreme Court provides law students and young lawyers with invaluable tips on what it takes to be an outstanding advocate. Below are a few reasons why Paul Clement is among the country’s best lawyers.

1.    Confidence

As Woody Allen said, 90% of life is just showing up. And when you do show up, it’s critical to have confidence. Paul Clement has the confidence (or ‘swagger’) that reflects self-assuredness and conviction in his arguments. Put simply, he owns the courtroom and commands respect.

2.    Preparation

No attorney can outwork Paul Clement. He is so prepared that he never uses notes and can cite the page and line number of, for example, a deposition. In short, Clement knows every detail of his case, including the law that governs its disposition.

3.    Conversational tone

Many lawyers who argue before the United Supreme Court will understandably be nervous and, perhaps, overly formalistic when making their arguments.

Not Paul Clement. When Clement argues before the Supreme Court, he has a conversation with the Court, much like you would have a conversation with one of your friends. As Professor Richard Lazarus of Harvard Law School states, “[h]e’s very smooth. He’s engaging. Formal but not too much so. Extremely credible and straight with the justices. You don’t have the sense that anyone is trying to sell you anything.”[1]

It almost seems that Clement enjoys engaging with the justices, which reflects his confidence and personability.

4.    Integrity and credibility

Paul Clement has integrity. He never misrepresents the law or the facts. He never acts in an arrogant, disrespectful, or dismissive manner. Rather, he presents the law and facts honestly and thoroughly, and explains with persuasiveness why he should win. Doing so reflects his integrity and enhances his credibility with the Court.

As one Supreme Court advocate stated, “[h]e just doesn’t do things that upset people … [t]here’s no edge to him.”[2]

5.    Persuasiveness

Paul Clement is extremely persuasive. Whether it is, for example, his tone, word choice, ability to distinguish precedent, skill at addressing unfavorable facts and crafting a compelling narrative, or using non-verbal techniques, Paul Clement is among the most talented at telling a persuasive story that maximizes his likelihood of success.

6.    Answering judges’ questions directly and effectively

One of the most important aspects of effective appellate advocacy is answering a judge’s questions directly and persuasively, and adjusting your argument based on the concerns that a judge expresses about the merits of your case. Paul Clement is among the best, if not the best, at doing so.  An excellent example is Clement’s argument in Kennedy v. Bremerton School District (21-418_3dq3.pdf (supremecourt.gov)).

Ultimately, Paul Clement’s oral advocacy skills exemplify what it means to be a great lawyer and advocate. Both law students and young law lawyers would benefit from listening to his oral arguments. 

 

[1] Natalie Singer, ‘Defending Unpopular Positions is What Lawyers Do,’ says Paul Clement, ’92 (January 31, 2012), available at: 'Defending unpopular positions is what lawyers do' says Paul Clement '92 - Harvard Law School | Harvard Law School

[2] Jason Zengerle, The Paul Clement Court (March 16, 2012), available at: Why Paul Clement Is the GOP’s Great Hope for This Supreme Court Season -- New York Magazine - Nymag

The Trump Indictment

Donald Trump has been indicted. Although this is not a surprising development, it is not a good day for the rule of law or for public confidence in our institutions.  

To begin with, a grand jury indictment is not nearly as significant as some in the media would have you believe. As the saying goes, grand juries would indict a “ham sandwich” because the threshold for securing an indictment is not high, and the defense’s ability to test the prosecution’s case is limited.[1] Furthermore, the investigation occurred in New York City, where liberals substantially outnumber conservatives, and where Trump is, to put it mildly, not admired. When you combine these factors with a district attorney – Alvin Bragg – who seems hellbent on indicting Trump (as evidenced by his public statements and legal theory) you have the perfect storm for an indictment that appears more political than principled.[2]

Indeed, Bragg appears to care more about convicting Trump than addressing the approximately 22% increase in various crimes in New York City. As Harvard Law Professor Dershowitz, who did not vote for Trump, explains:

When a district attorney who ran as a Democrat and promised to “get” Donald Trump indicts the candidate running for president against the incumbent head of his party, he had better have a slam dunk case. Although we don't know exactly what the Manhattan grand jury indicted Trump for, it seems likely, based on what we know, that this is a very weak case which would never have been brought against anyone else.[3]

Put simply, the case against Trump is not strong. In fact, if media reports are correct about the charge Trump is facing, it is incredibly weak. As George Washington law professor Jonathan Turley states, Bragg “is attempting to bootstrap [a] federal crime into a state case,” and “if that is the basis for the indictment … it’s illegally pathetic.”[4]  Likewise, former Whitewater deputy counsel Sol Wisenberg characterized the legal case against Trump as “preposterous.”[5] Even some liberal commentators agree that the case against Trump is not strong.[6] For example, Elie Mystal asserts that “the odds that the path to real justice, let alone prison time, runs through the Manhattan DA’s office still seem very, very long.”[7]

Specifically (and again, if media reports are correct), the charge against Trump is falsifying business records, which requires, among other things, an intent to defraud. The legal theory, apparently, is that Trump falsified business records (characterizing them as legal expenses) when reimbursing Michael Cohen for paying Stormy Daniels $130,000 to conceal Daniels’ affair with Trump (to be clear, paying “hush money” to another is not, in itself, a crime). In New York, this is a misdemeanor, and it only becomes a felony “if it was in service of another crime,” which Bragg allegedly “posits is a [federal] campaign finance violation.”[8]  

Importantly, the Southern District of New York, which investigated this matter, declined to prosecute the case.[9]  Also, former Manhattan District Attorney Cy Vance, did not pursue an indictment.[10] And for good reason. Why would a prosecutor try to convict a former president for a misdemeanor, particularly where the Southern District of New York declined to prosecute, the case is so weak, and where doing so would appear politically motivated?

None of these factors seem to matter to Bragg, a Democrat who in his campaign for Manhattan District Attorney promised to focus on investigating Trump, stating that it “merits the attention of the DA personally.”[11] Apparently, Bragg is attempting to connect Trump’s alleged misdemeanor-level misconduct to a federal campaign finance violation, which is a felony, by alleging that the payments to Cohen constituted an illegal contribution to the Trump campaign.

Such a creative and novel legal approach suggests that Bragg is searching for some way, however untenable, to bring a felony charge against Trump. But it is unlikely to succeed. As Mark Pomerantz, a former district attorney, stated, Bragg will “have to argue that the intent to commit or conceal a federal crime had converted the falsification of the records into a felony. No appellate court in New York had ever upheld (or rejected) this interpretation of the law.”[12] In other words, the “intent to defraud” must include “an intent to commit another crime or to aid or conceal the commission thereof.”[13] That alone will be difficult to prove, as Trump may argue that the payments were intended to prevent his wife Melania from discovering the affair, not to cover up another crime (an illegal campaign contribution). 

Furthermore, if reports from the media are accurate, the primary witness for the prosecution will be Michael Cohen, a disbarred lawyer who pled guilty to, among other things, tax fraud, who served time in prison, and who has lied countless times, including before Congress.[14] If you doubt this, listen to the statements by Robert Costello, who testified recently before the grand jury.[15]  Also, one must wonder how Trump can be prosecuted for a federal campaign violation in New York state court, why such a prosecution should be pursued when the Southern District of New York declined to do so, and where the optics of such a prosecution suggest a political motive.

Such creative lawyering (tying a state law misdemeanor to a federal felony), rather than being a legitimate purpose of the criminal justice system, suggests that the Bragg wants to weaponize the legal system to “get” Trump.  As Dershowitz explains:

This is a case of targeting an individual and then rummaging through the statute books in search of a crime. Prosecutors seem to have come up with nothing under established law, then made up a misdemeanor and then piggybacked it on another alleged crime to create a felony. But one plus one does not equal 11, and zero plus zero equals zero. That is what we seem to have here.[16]

Simply put, this is a weak case that appears as politically motivated as it gets. Indeed, it is quite concerning that, as Bragg has reduced 52% of felony charges in New York to misdemeanors, he now seeks to raise Trump’s alleged crime from a misdemeanor to a felony.[17] Perhaps Bragg’s personal attention should be devoted elsewhere, particularly given the 22% rise in certain crimes in New York City.[18]

Ultimately, no matter what you think of Trump, everyone should, hopefully, believe that the law should be applied in an equal and even-handed fashion. Think about it: if the defendant were anyone other than Donald Trump, would Bragg be pursuing this?

Of course not. 

Well, maybe if it were Richard Nixon.

In essence, Bragg is going after the person (Trump), not the crime. That, in a nutshell, is the point – and the problem.

After all, let’s be honest about what is happening here.

Bragg probably despises Trump. Furthermore, when (and before) Donald Trump was elected in 2016 as an anti-establishment candidate, the mainstream media hated him.[19] Indeed, the mainstream media, which has as much, if not less, credibility than Michael Cohen, did nearly everything in its power to discredit and, quite frankly, destroy Trump, as evidenced by, among other things, the now-debunked allegations of Russian collusion.[20] 

Additionally, the establishment, including individuals such as James Comey and Peter Strzok, hated him. Furthermore, universities, which are overwhelmingly liberal and who employ professors who believe that diversity of thought is more deleterious than the coronavirus, have almost uniformly condemned Trump and unapologetically rejected a free marketplace of ideas. If you doubt this, look at what happened to Fifth Circuit Judge Stuart Kyle Duncan at Stanford Law School, where students and Tirian Steinbach, the Associate Dean of Diversity, Equity, and Inclusion, shouted down Duncan for views that they did not share.[21]  Or observe the circus-like shenanigans of students at Yale Law School, where they ridiculed Kristen Waggoner, an attorney and Supreme Court litigator.[22] The commitment to diversity, equity, and inclusion (and free speech) obviously exists only in the abstract at these schools. 

The consequences that Trump’s prosecution will have to our institutions – and the rule of law – will be substantial. The legitimacy of our institutions depends in substantial part on the perception that our elected officials apply the law equally, fairly, and even-handedly, without regard to political affiliation or personal animus. If the rule of law is perceived as a political weapon (see, e.g., North Korea, Russia), the law itself will be reduced to nothing more than a tool for politicians to use against those who threaten their power. And there is no bigger threat to liberty and equality than a rule of law that is administered based on politics rather than principle, and opportunism rather than objectivity. The rule of law – and the American people – demand much more and should accept no less. 

Put differently, people need to believe that you will never be prosecuted or targeted based on what you believe, what your political affiliation is, or who you are. It should be based on what you did, and whether those actions would result in a prosecution for most, if not all, individuals, regardless of status, who engaged in similar conduct. That is simply not the case here. If the defendant were Joe Biden rather than Donald Trump, there would be no prosecution.

It's no wonder why the American people have lost faith in our institutions, academics, and elected leaders. Years ago, individuals such as Walter Cronkite, Robert C. Maynard, and Peter Jennings exemplified the standards to which journalism – and our institutions – should aspire. Now, the American people are treated to the folks at CNN, Fox News, and MSNBC, few of whom can even remotely compare to the journalistic integrity that the former individuals embodied. Even a few seconds of listening to Bryan Stelter or Joy Reid, or Glenn Beck underscores this point.

Indeed, Bragg’s conduct – and the conduct of many political leaders, prosecutors, and pundits – leads to one ineluctable conclusion.

They are political actors.

Their goal is to advance a political agenda.

And they don’t even hide it anymore.

As Professor Dershowitz stated, “[w]hat matters greatly is that DA Alvin Bragg has weaponized the justice system to target a political opponent based on a nonexistent or, at best, an extremely weak crime.”[23]

Unfortunately, this nonsense is not without precedent.

In 1998, the Republicans spent millions of taxpayer dollars to impeach Bill Clinton (in the House of Representatives) over a consensual affair (and alleged perjury and obstruction of justice) that, while not, to put it nicely, the best exercise of judgment, could not reasonably have been construed as a high crime and misdemeanor. And Ken Starr did everything in his power to degrade and humiliate Clinton with a report laden with salacious details that no sensible person would have included. Well, here we are again: a criminal indictment against a former president and leading candidate for the Republican Party’s nomination based on an affair with a porn star. Not to mention, the United States Supreme Court manufactured out of thin air a right to abortion in Roe v. Wade, and approximately fifty years later, overturned Roe for no other reason than that the political persuasions of the Court had changed.

What’s more, it is nearly impossible to have a civil conversation with those with whom you disagree or to debate issues with others in an atmosphere of civility and respect.  Alvin Bragg’s decision makes this situation worse, not better and makes the country more divided, not united. Put simply, Trump’s indictment is an unsurprising, quite unoriginal, and obviously predictable continuation of this unfortunate chapter in American history.  

Ultimately, almost anyone can respect the rule of law, promote diversity of thought, and remain committed to fairness when they are surrounded by people who agree with them. But true leaders – and people with character and integrity – have the courage to be fair to every citizen, particularly the ones that they despise, just like the First Amendment depends on tolerating speech that you find offensive.

That is what the rule of law – and a society dedicated to liberty, fairness, and equality – demands, and what every citizen deserves.

That includes Donald Trump.

 

[1] Toni Messina, Criminally Yours: Indicting a Ham Sandwich (Feb. 8, 2016), available at: Criminally Yours: Indicting A Ham Sandwich - Above the Law

[2] Of course, this is based on the media reports regarding the legal charges that Trump will face. The indictment may contain facts and charges that make the case stronger.

[3] Alan Dershowitz, Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution (March 31, 2023), available at: Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

[4]  Steven Nelson, Democrats Giddy at Trump Indictment, But Legal Experts Warn Case is Weak (March 30, 2023), available at: Democrats giddy at Trump indictment, but legal experts warn case is weak (nypost.com)

[5] Id.

[6] See Elie Mystal, Donald Trump Has Been Indicted/ Don’t Get Your Hopes Up (March 30, 2023), available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation

[7] Id.

[8] National Review, The Reckless Trump Indictment (March 31, 2023), available at: Reckless Donald Trump Indictment | National Review (emphasis added) (brackets added).

[9] See Mystal, supra note 6, available at: Donald Trump Has Been Indicted. Don’t Get Your Hopes Up. | The Nation

[10] Jeremy Herb, Kara Scannell, and John Miller, Inside the Long and Winding Road to Trump’s Indictment (April 1, 2023), available at: Donald Trump: Inside the long and winding path to a historic indictment | CNN Politics

[11] See Kara Scannell, New Manhattan DA Alvin Bragg Pledges to Focus on Trump Investigations (Dec. 20, 2001), available at: Alvin Bragg: New Manhattan DA pledges to focus on Trump investigations | CNN Politics (emphasis added).

[12] Jose Pagliery, Manhattan DA Insiders Worry the Trump Hush Money Case is Weak Sauce (March 29, 2023), available at: Manhattan District Attorney Insiders Worry the Trump-Stormy Daniels Alvin Bragg Hush Money Case Is Weak Sauce (thedailybeast.com)

[13] Mark Joseph Stern, The Big Problem with the Trump Indictment (March 30, 2023), available at: Alvin Bragg’s indictment of Donald Trump is full of challenge and promise. (slate.com).

[14] See Laura Nahmias and Daniel Samuelsohn, Michael Cohen Sentenced to 3 Years in Prison (Dec. 12, 2018), available at: Michael Cohen sentenced to 3 years in prison - POLITICO

[15] See Bart Jansen and Kevin Johnson, Lawyer Assails Trump Grand Jury Witness as ‘Liar on Revenge Tour,’ (March 20, 2023), available at: Robert Costello undercuts Michael Cohen in Trump grand jury probe (usatoday.com)

[16] Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

[17] See Melissa Klein, NYC Convictions Plummet, Downgraded Charges Surge Under DA Bragg (Nov. 26, 2022), available at: Convictions plummet, downgraded charges surge under Manhattan DA Bragg (nypost.com) (emphasis added).

[18] See Chelsia Rose Marcius and Eh Shanahan, Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell (January 5, 2023), available at: Major Crimes Rose 22 Percent in New York City, Even as Shootings Fell - The New York Times (nytimes.com)

[19] See Tony Perkins, The Numbers that Prove How Much the Mainstream Media Hate Trump (Dec. 14, 2017), available at: The Numbers That Prove How Much the Mainstream Media Hate Trump (frc.org)

[20] See Philip Ewing, Mueller Report Finds No Evidence of Russian Collusion (March 24, 2019), available at: Mueller Report Finds No Evidence Of Russian Collusion : NPR

[21] See Stuart Kyle Duncan, My Struggle Session at Stanford Law School (March 17, 2023), available at: My Struggle Session at Stanford Law School - WSJ

[22] See Bradley Evans, ADF General Counsel Harassed at Yale Law School Event (March 21, 2022), available at: ADF General Counsel Kristen Waggoner Harassed at Yale Law School Event | Alliance Defending Freedom (adflegal.org)

[23] Dershowitz, supra note 3, available at Trump Indictment Case Looks Like a Weak Exercise in Creative Prosecution | Opinion (newsweek.com) (emphasis added).

More than "Frenemies."

I recently had the honor of running into an old moot court student as opposing appellate counsel. It was in a case where there had been some heated language exchanged by trial counsel over an issue that was of serious concern to our clients. We shook hands, laughed at the irony, and then he said we would just have to be “frenemies.”

I’ve thought a fair bit about that exchange. Not because I don’t know what a frenemy is – I am not yet that old, and I do have access to the urban dictionary in case I need to verify - but because I don’t think that term fits the full relationship of opposing appellate counsel. We should be more than that.

Under the ABA model rules, there are only “shall nots” when it comes to the relationship between counsel. Thus, Rule 3.4, Fairness to Opposing Party & Counsel, provides that an attorney “shall not” unlawfully conceal or obstruct access to evidence, falsify evidence, make frivolous discovery requests or objections, and so on.

The Texas Standards for Appellate Conduct, under which I often operate, are much more aspirational. They provide that counsel will treat opposing counsel with respect, be punctual in communications with counsel, not impute bad motives or make personal attacks against counsel, and will not ascribe to opposing counsel a position they have not actually taken. These standards begin with the idea that “Lawyers bear a responsibility to conduct themselves with dignity towards and respect for each other, for the sake of maintaining the effectiveness and credibility of the system they serve.”

I wish all attorneys subscribed to those standards, but they are, perhaps, particularly well-suited to appellate counsel. We, more than any other lawyer, should be able to focus on the issues. We, more than any other lawyer, should be able to distinguish between attacking an argument and attacking opposing counsel. And we, more than other lawyer, should take that role seriously.

How does that pan out in practice? When we step into a case, we should be able to recognize when these ideals are not being met and we should do our best to fix that. Not only to keep the peace, but because that is how we can best serve our clients, who eventually will have those legal issues determined by an appellate court that has no interest in personal feelings.

So, when we step into a trial court to help with issues we know are going to be on appeal, we should step in with the idea that we aren’t just frenemies with opposing appellate counsel. We are working together to try to get the issues resolved as cleanly as possible, and if necessary, preserved and presented in a way that will help the court, and our clients, focus on the issues that have to be resolved. While we are opposed on the issues, we are allies in a larger sense.

That may sound pollyannish. But the courts of appeal in Texas that have all adopted these standards don’t think so. And I’m willing to bet that most appellate courts in the rest of the country would agree that when we act professionally, and even more, cordially, while still vigorously contesting each other’s arguments, we best serve our clients needs and the needs of the system in which we all work.

(photo credit: Brooklyn Museum - "Vous êtes un jeune homme bien né..." - Honoré Daumier).

 

Advice for Law Students on Oral Argument

After judging a regional round of the National Appellate Advocacy Competition this weekend in Los Angeles, it was apparent immediately that the law students participating in this competition demonstrated intelligence, talent, and persuasiveness. Indeed, the participants were quite impressive and showed that the future of the legal profession is bright. Having said that, below are a few tips for law students to help improve their already-impressive appellate advocacy skills.

1.    Slow down. Once again, slow down. Your goal is to advocate for your client and maximize the persuasive value of your argument. To do so, you need to be authentic and conversational. In so doing, you should change your pace, tone, and inflection to emphasize (and de-emphasize) specific points. When you speak too quickly, you lose credibility and negatively impact the persuasiveness of your argument. And you lose points. So be sure to focus on being yourself, which means being authentic, conversational, and comfortable at the podium.

2.    Don’t be scripted. You should never draft every word of your oral argument. Instead, you should draft an outline of the substantive points that you want to make, and trust yourself to articulate those points effectively and persuasively. When you memorize a script, you appear rehearsed and thus inauthentic.

3.    Watch your conduct at the counsel table. Being professional and respectful is vital to ensuring your credibility with a court. Thus, be sure never to show emotion at the counsel table, either toward your teammates or in response to your adversary’s arguments. The failure to do so is unprofessional and immature – and will cost you points. When a moot court or mock trial team, for example, displays unprofessional conduct at the counsel table, they signal to the judges that they are not a good team.

4.    Be flexible and concede weaknesses in your argument. Every argument has weaknesses, whether on the facts or the law. Denying these weaknesses, particularly in the face of difficult questions from the judges, will affect your credibility and persuasiveness. Thus, be sure to concede weaknesses in your argument, such as by acknowledging unfavorable facts or law, and explain why such weaknesses do not affect the outcome you seek.

5.    Answer the judges’ questions directly and persuasively. The key to an outstanding oral argument is how you respond to the judges’ questions. Those questions tell you precisely what the judges are concerned about or focused on when deciding the merits of your case. As such, you should answer the judges’ questions directly and persuasively, and not offer evasive or non-responsive answers, which will compromise your credibility. In other words, do not view the judges’ questions as an attack on your argument. View them as an opportunity to make your case.

6.    Be willing to adapt and modify your argument (or desired remedy) based on the judges’ questions. Far too often, oralists propose a categorical rule – or seek a particular remedy – and relentlessly advocate for that rule or remedy regardless of the judges’ concerns. That is a mistake. You must demonstrate flexibility – within reason – to ensure that you obtain the best result, even if it is not the perfect result. For example, if you were arguing that Roe v. Wade should be overturned, and a majority of the justices on the United States Supreme Court suggested through their questions that they were unwilling to do so, yet were willing to impose stricter limits on the time within which a woman could seek an abortion, you need to pivot and explain why, in the absence of overturning Roe, such a limit would be warranted. In other words, you must exercise good judgment in the moment and, based on your perception of how the judges might rule, propose alternative remedies that will persuade the judges even if it means not getting everything you want. Remember that the best is often the enemy of the good.

7.    Be prepared. The best advocates are the most prepared. They know the page and line numbers of deposition testimony.   They know precedent by heart and can recite the holdings and dicta in relevant cases without notes or hesitation. Simply put, the best advocates are the most prepared advocates.

8.    Non-verbal conduct is critical to persuasion. It’s not just what you say, but how you say it. When you are making an oral argument, know that your hand gestures, your tone, your cadence, your volume, and your movement all matter tremendously. If, for example, you speak in a monotone voice, it doesn’t matter how persuasive your argument is or how much the law supports your argument. You will lose points and minimize the persuasive value of your argument if your non-verbal conduct (how you say it) is not as powerful as your verbal conduct (what you say).

The 2023 Justice Donald L. Corbin Appellate Symposium

On March 30 and 31, the Pulaski County Bar Foundation will be hosting its Annual Justice Donald L. Corbin Appellate Symposium at the University of Arkansas Little Rock Bowen School of Law.  This national symposium honors the late Justice Donald L. Corbin of the Arkansas Supreme and Appellate Courts.  The event offers the chance to discuss and learn about the appellate process from federal and state judges, professors, and experienced practitioners in beautiful Little Rock.  You can tour the Clinton Library too! 

The impressive lineup this year includes many members of the appellate bench:

• A United States Court of Appeals panel discussion with Judge Michael Y. Scudder of the Seventh Circuit, Chief Judge Lavenski R. Smith of the Eight Circuit, and Judge Jane Kelly of the Eight Circuit;
• Judge Morris S. "Buzz" Arnold, United States Court of Appeals for the Eighth Circuit, speaking on ethics;
• A state Supreme Court panel discussion with Justice Courtney R. Hudson of the Arkansas Supreme Court, Justice Holly Kirby of the Tennessee Supreme Court, and  Justice Piper D. Griffin of the Louisiana Supreme Court;
• Justice Annabelle Imber Tuck (Retired), Arkansas Supreme Court, speaking on oral argument; and
• An Arkansas Court of Appeals Panel Discussion with Judges Cindy Thyer, Wendy S. Wood, and Stephanie P. Barrett.

Robert S. Peck, of the Center for Constitutional Litigation, will be speaking on framing issues for appeal, and How Appealing's founder Howard Bashman will present as well, along with several other appellate practitioners and professors. 

You still have time to register, and you can find all of the details here:  https://www.pulaskibarfoundation.com/corbinsymposium.

This year, I am honored to be speaking on appellate brief writing, and I invite you to join us at the beautiful Bowen School of Law for the 2023 Corbin Symposium.  Plus, if you have never been to Little Rock, I highly recommend a visit.  Trust this Chicago gal living in Los Angeles, Little Rock is a charming and welcoming town with big city amenities in a gorgeous part of the country.  See you there!

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

Concrete Economics on the Supreme Court

The Supreme Court has recently offered strikingly similar answers to two seemingly disparate questions. The first concerns Article III standing to bring a case in federal court: What does it mean to show a “concrete and particularized injury in fact” that would, in part, support standing? The second concerns precedent: What does it mean for citizens to “rely” on precedents so that those prior decisions deserve stare decisis protection? The Court’s answers to each of these questions uses similar reasoning to amplify economic interests that are easy to identify and measure. Taken together, these seemingly unrelated jurisprudential developments also have an important real-world effect: they help ensure that our legal system provides the greatest level of protection possible for clear, monetary concerns, relegating more intangible individual rights to a second-class status.

Start with the Courts recent jurisprudence on Article III standing, which includes, as one of its elements, a requirement that plaintiff’s suffer a concrete and particularized injury in fact.[1] Recent Supreme Court analyses have heightened this concreteness hurdle to enter federal courts. In Spokeo v. Robins, the Court suggested that Congress cannot create concrete injuries by fiat simply by including a statutory damages remedy in legislation.[2] Five years later in Transunion LLC v. Ramirez, the Court again noted that an injury does not become concrete simply because Congress creates a statutory cause of action to redress it—although such Congressional action might be instructive.[3] The Court emphasized that it would only resolve “‘a real controversy with real impact on real persons.’”[4] In effect, these decisions emphasize the need for plaintiffs to come to the courthouse with an injury that can easily be measured, typically in real dollars and cents, before filing suit.

Meanwhile, as I have argued, the Court’s treatment of stare decisis in the landmark abortion rights case Dobbs v. Jackson Women’s Health Organization used similar language to signal the Justice’s willingness to overturn a broader swath of the Court’s prior decisions. According to Justice Alito’s majority opinion in Dobbs,  stare decisis only protects reliance interests that arise “where advance planning of great precision is most obviously a necessity”—not reliance interests that come from the kind of “unplanned activity” that may lead to an abortion.[5] Alito also claimed that stare decisis protects only “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[6] Courts simply cannot measure, and thus cannot protect, more intangible forms of reliance that involve the organization of intimate relationships and decisions about a woman’s position in her family and community.[7] Though this language appears content-neutral, Alito's approach to stare decisis significantly weakens precedents that protect intangible individual rights. Few citizens make contractual arrangements or economic plans based upon such precedents, and thus those precedents seems less viable in the long term.

Taken together, these trends prioritize economic interests over a number of other important interests that the legal system previously seemed to protect. Many social interests or individual rights are not the subject of economic agreements. And under the Court’s approach to both standing and stare decisis, those rights are less worthy of legal protection, on that basis alone. Put another way, if a legal interest is difficult to quantify economically, it is hardly a legal interest at all.

Without garnering much public notice, these joint emphases on concreteness create new barriers for the protection of individual rights in federal courts. They are perhaps an even greater threat to individual rights than a decision that forthrightly admits it is designed to curb those rights.

 

[1] See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 461, 472 (1982); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[2] 578 U.S. 330, 339-40 (2016); Richard L. Heppner Jr., Statutory Damages and Standing After Spokeo v. Robins, 9 ConLawNOW 125, 125 (2018).

[3] 141 S. Ct. 2190, 2204-05 (2021).

[4] Id. at 2203 (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring)).

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

Who Serves on the Bench Matters

As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will  be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.

We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.

Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration.[1] He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”[2]

That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.

Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.

The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.

 

[1] Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).

[2] Id.

Western Justice Center Gives Ninth Circuit Senior Judge Dorothy Nelson a Lifetime Achievement Award

Many years ago, I was a lucky law clerk working for a wonderful judge at the Ninth Circuit’s  Pasadena courthouse.  One early morning, as I was admiring the flowers growing at the entrance to the gorgeous courthouse, I saw Judge Dorothy Nelson tending to the roses.  She took a moment to chat with me about the roses and litigation, and I have always remembered her kindness and wit.  During my year in Pasadena, I became friendly with Judge Nelson’s law clerks, and learned how much they admired her work for justice and dispute resolution.  See generally Selma Moidel Smith, Oral History of Judge Dorothy Nelson (1988) (interesting interview of Judge Nelson for the Ninth Circuit Historical Society).

Therefore, I was not surprised to see the Ninth Circuit’s recent press release announcing that the Western Justice Center (WJC) honored Judge Nelson “for her vision and dedication in founding the center and decades of visionary work in conflict resolution.”  October 23, 2022 Press Release.  The WJC works to “find innovative ways to handle conflict” by using alternative dispute resolution techniques in and beyond the court system.  The WJC especially focuses on “development of conflict resolution skills and capacity of youth, educators, schools and community partners,” and has trained over “1,000 students, educators and volunteers with the conflict resolution skills they need to transform” schools and “impact . . . youth across” the Los Angeles area.  Id.

As the press release explained, Judge Nelson believes “[e]ighty-five percent of cases could be mediated,” saving the time and money of traditional litigation.   She explained she “want[s] to bring people together, in a collaborative, unifying system,” and she “find[s] there are a lot of people open to that.”  Id.  

Before her nomination to the bench, Judge Nelson served as the Dean of USC’s Gould School of Law.  She was the “first woman dean of a major American law school,” where she “focused on training future lawyers in restorative justice and mediation as an alternative to litigation.”  Id.  Once she joined the Ninth Circuit, she “initiat[ed] one of the first mediation programs for a federal appellate court,” which we use in many circuits today.  See id.

As a past mediator for the Second District of the California Court of Appeal, I know mediating appeals can seem hopeless.  The parties I met with had already invested so much time, energy, and money into their cases that they often saw little reason to settle before oral argument.  However, I did help some parties reach a non-court resolution, and I often thought of Judge Nelson and the roses when I did so. 

Happy Thanksgiving!

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

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

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

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

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”

The Hallmarks of a Great Appellate Brief

Writing an excellent appellate brief is an arduous task. The quality of your writing, coupled with how you organize and present your arguments, can make the difference between winning and losing. Below are a few tips that can enhance the persuasive value of your appellate brief.

1.    Start strong and get to the point quickly.

Writing an appellate brief is, in many ways, like writing a fiction novel or directing a movie. Great books and movies begin powerfully, with a riveting opening chapter or scene. Likewise, in an appellate brief, you should begin with a persuasive introduction that captures the reader’s attention and that does the following:

• Tells the court in one sentence why you should win.
• States clearly what remedy you are seeking.
• Explains why the court should rule in your favor.
• Presents the strongest facts and legal authority that support your argument.

Drafting a powerful, persuasive, and concise introduction is your first – and often most important – opportunity to convince a court to rule in your favor. 

2.    Focus on the facts.

In most instances, the facts – not the law -- win cases.

An outstanding appellate brief, like a great fiction novel or academy award-winning movie, tells a compelling story. That story, among other things, is well-written, flows logically, keeps the reader’s attention, emphasizes the facts most favorable to your position, explains why unfavorable facts do not affect the outcome you seek, and demonstrates why a ruling in your favor is the fairest and most just result.

To be sure, laws, statutes, and constitutional provisions are often broadly worded and subject the different interpretations, and precedent is usually distinguishable. For example, determining whether a particular search is unreasonable under the Fourth Amendment, or whether a punishment is cruel and unusual under the Eighth Amendment, depends substantially on the court’s independent judgment and, to a lesser extent, subjective values.

As such, a court’s ruling is likely to turn on the facts of each case, which makes your statement of facts the most critical section of your brief. A powerful statement of facts, like a compelling introduction, can often determine your likelihood of winning.

3.    Adopt a more objective tone.

Appellate judges understand that your job is to advocate zealously on your client’s behalf. The best advocacy, however, is often achieved by adopting a more objective tone that does the following:

• Confronts effectively and persuasively the weaknesses in your argument (e.g., by distinguishing unfavorable facts and precedent).
• Explains how a ruling in your favor will affect future cases and litigants.
• Considers the policy implications of a ruling in your favor.
• Addresses institutional considerations, such as how the public might react to a ruling in your favor.
• Acknowledges the merits of the adversary’s argument but explains why your argument produces the most desirable result.

Focusing on these issues will enhance your credibility with the court and demonstrate that you have fully considered the competing factual, legal, and policy aspects of your case.

4.    Break the rules – sometimes.

When writing, rewriting, and revising your brief, do not focus exclusively or even predominantly on, for example, whether every sentence complies with the Texas Manual of Style, whether you have eliminated the passive voice, or whether you avoided using italics or bold.

Instead, focus on whether your story is compelling and consider whether your brief accomplishes the following goals, among others:

• Captures the reader’s attention from the beginning.
• Emphasizes the most favorable facts and law immediately and throughout the brief.
• Appeals to emotion where appropriate.
• Exposes the logical flaws in your adversary’s argument.
• Uses metaphors or other literary devices to enhance persuasion.
• Ends powerfully.

Sometimes, this requires you to break the rules. For example, assume that you are appealing a jury verdict against your client, a popular media personality, on the ground that one of the jurors lied on the jury questionnaire to conceal biases against your client. On appeal, you write the following:

During jury selection, potential jurors were asked whether they harbored any disdain for or bias toward my client, who is a controversial public figure due to his perceived conservative views. Juror No. 16, who was empaneled on the jury, stated that “I do not dislike or have any bias toward the defendant. I respect diverse points of view because they are important to ensuring the free exchange of ideas.” After the jury reached its verdict, however, an article on Juror No. 16’s blog surfaced that stated, “any conservative media commentator should burn in hell, and I would do anything to erase these people from the planet.”  Additionally, one week after the verdict, when Juror No. 16 was questioned about this comment, he stated, “Look, I don’t give a s*** what people say about me. Sometimes, the ends justify the means, and I did what I did because people like that jerk need to be silenced.” Surely, Juror No 16’s first comment unquestionably supports overturning the jury’s verdict. But if there is any doubt, Juror No 16’s second comment was the straw that broke the camel’s back.

This is not perfect, of course, but you get the point. Sometimes, to maximize persuasion, you must break the rules.

5.    Perception is reality – do not make mistakes that undermine your credibility.

Never make mistakes that suggest to the court that you lack credibility. This will occur if your brief contains the following mistakes, among others:

• Spelling errors
• Long sentences (i.e., over twenty-five words)
• Excessively long paragraphs (e.g., one paragraph occupying an entire page)
• Failure to comply with the local court rules
• Over-the-top language (e.g., unnecessary adjectives, insulting the lower court or adversary)
• Inappropriate language (e.g., “the respondent’s arguments are ridiculous and stupid”)
• Fancy or esoteric words (e.g., “the appellant’s meretricious argument ipso facto exacerbates what is an already sophomoric and soporific argument that, inter alia, manifests a duplicitous attempt to obfuscate the apposite issues.”) This sentence is so bad that writing something like this in a brief should be a criminal offense.
• Avoiding unfavorable facts or law
• Requesting relief that the court is not empowered to grant
• Including irrelevant facts or law in your brief (and including unnecessary string cites)

Avoid making these and other mistakes at all costs.

6.    The law will only get you so far; convince the court that it is doing the right thing by ruling for you.

Ask yourself whether your argument produces the fairest and most just result. Judges are human beings. They want to do the right thing. They do not go to sleep at night saying, “I feel so good about my decision today because I made sure that we executed an innocent person.” Put simply, judging is both a legal and moral endeavor. As such, convince a judge that the result you seek is the right result as a matter of law and justice.

A Few Thoughts on Dobbs v. Jackson Women’s Health

On June 24, 2022, in Dobbs v. Jackson Women’s Health, the United States Supreme Court overturned Roe v. Wade and, in so doing, sparked impassioned reaction in the United States.

Below are a few thoughts on the decision.

1.    The majority was correct.

In today’s climate, particularly in some academic institutions, it’s not advisable to publicly criticize Roe – or praise Dobbs – if you want to advance in your academic career.

But the truth is the truth.

Roe was a terrible decision. The majority got it right.

The right to abortion was not based on any reasonable interpretation of the Constitution’s text. And it was not inferable from the text, particularly the Fourteenth Amendment’s Due Process Clause, unlike, for example, the right to effective assistance of counsel, which can be inferred from the Sixth Amendment right to counsel. It was not rooted in the nation’s history or traditions, which is a critical factor that constrains the Court’s power and prevents justices from creating whatever “rights” they subjectively deem desirable. Instead, the Roe Court created a constitutional right out of thin air, divining such right from the invisible “penumbras” that the Court in Griswold v. Connecticut likewise created out of thin air.[1] And the nonsensical doctrine of substantive due process, which the Court invoked in Planned Parenthood v. Casey to uphold Roe’s central holding, is a legal fiction.[2] Not surprisingly, constitutional scholars of both conservative and liberal persuasions, along with the late Justice Ruth Bader Ginsberg, have recognized that Roe was incredibly, if not irredeemably, flawed.

The Court’s decision reflected a principle that is vital to a functioning democracy and the valuers of federalism, de-centralized governance, and bottom-up lawmaking: nine unelected and life-tenured judges should not have to right to decide for an entire country what unenumerated rights should or should not be recognized when such “rights” are neither contained in nor inferable from the text, or not deeply rooted in history and tradition. The reason for these constraints is obvious: without them, the justices would have the unfettered authority to create – or take away – whatever rights they wanted, whenever they wanted, and for whatever reason they wanted, which would reflect nothing more than their subjective policy predilections.  That is antithetical to a democracy that vests power in the people, not philosopher kings. And for those who claim that the Ninth Amendment is a source of unenumerated rights, they are correct. But where in the Ninth Amendment does it state that the Court has the authority to create those rights, particularly where there is no basis in the Constitution to do so?

Ultimately, Roe was the perfect example of a raw exercise of judicial power. This does not necessarily mean, however, that the right to abortion lacked a textual basis in the Constitution. As stated below, to the extent that there is a constitutional basis to support a right to abortion, it is through the Equal Protection Clause (or possibly the Privileges and Immunities Clause).

2.    Justice Roberts’ approach was sensible but not principled.

Chief Justice Roberts’ concurrence strikes a sensible but not necessarily principled balance between recognizing the fatal flaws in Roe yet respecting the fact that Roe has been the law for nearly half a century. For this reason, Roberts would have upheld the Mississippi law, which banned abortions after fifteen weeks, but not entirely overturned Roe and Casey.

This approach, although understandable given the practical impact of overturning Roe (and, as Roberts put it, the “jolt” to the legal system), is akin to taking a band-aid off slowly rather than ripping it off. Moreover, given the Court’s on-again, off-again relationship with stare decisis, with both liberal and conservative justices selectively applying the doctrine, Roberts’ concurrence appears more as a misguided attempt to preserve the Court’s legitimacy. Indeed, in this and other decisions, Roberts appears to lend more weight to perceptions about the public reaction’s reaction to a particular decision than the text of the Constitution itself. But basing decisions primarily on how the Court’s legitimacy will be affected invariably leads to political decisions and the precise result – a decline in the Court’s legitimacy – that Roberts is so intent on protecting. It should come as no surprise that the public opinion of the Court is now at twenty-five percent.

Put simply, interpreting the Constitution’s text reasonably is the key to the Court’s institutional legitimacy.

3.    Justice Kavanaugh’s concurrence was surprisingly misguided.

In his concurrence, Justice Brett Kavanaugh argued that the decision in Dobbs returned the Court to a position of neutrality on abortion. It is difficult to believe that Kavanaugh believes this to be true.

The Court did not return to a position of neutrality.  Roe was decided 7-2, and in Planned Parenthood v. Casey, the Court by a 5-4 margin affirmed Roe’s central holding. Thus, the Court had previously – and in numerous other cases – affirmed Roe and protected the fundamental right of women to access abortion services.  In other words, it had already taken a position – repeatedly – on whether the Constitution protected abortion.

So, what changed since Planned Parenthood? Nothing – except the composition of the Court, namely, the confirmation of three conservative justices.

This is not to say that appointing conservative justices – and originalists – is a bad thing.  Given the Court’s abortion precedent, however, and the known political affiliations of Justices Kavanaugh, Gorsuch, and Barrett, the notion that the Court returned to a position of “neutrality,” without acknowledging that, since Casey reaffirmed Roe, nothing changed but the Court’s composition, is ridiculous. That’s why Chief Justice Roberts’ approach was arguably the most sensible, although not the most principled, way to decide Dobbs.

Of course, this does not change the fact that, as a matter of constitutional law, Roe was one of the worst decisions in the twentieth century (not as bad, though, as Plessy and Korematsu), that Casey too was profoundly wrong, and that the Court was correct as a matter of constitutional law. The original sin was Roe itself, and the flaws in Roe were compounded by Court’s decision in Casey, which reaffirmed Roe based on untenable constitutional grounds, and on nonsensical justifications such as, “[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.”[3] That’s what you get when you subscribe to “living constitutionalism," which makes about as much sense as substantive due process or the belief that Elvis is still alive.

Having said that, the optic is not good – Dobbs suggests that constitutional rights change based on the political ideologies of the current justices. Kavanaugh’s concurrence displayed a startling disregard of this reality.

4.    Justice Thomas went too far.

With all due respect, Justice Clarence Thomas went too far in his concurrence. Yes, Thomas is correct that substantive due process is a nonsensical legal doctrine, and that Roe and Griswold were constitutionally indefensible decisions.

This doesn’t mean, however, that you revisit and overrule every flawed legal precedent that substantive due process produced. The truth is that, in many instances, the justices must consider the practical consequences of their decisions, and if the Constitution’s text can be reasonably interpreted to support a particular outcome, the Court should reach outcomes that will expand rights and promote, among other things, equality and the equal dignity of all persons. And in some instances, even if a precedent is irreparably flawed, the resulting “jolt” to the legal system and the material harm to citizens that may result can support letting the precedent stand on stare decisis grounds (or, as in the case of abortion, justifying it based on the Equal Protection Clause).

This analysis applies directly to Griswold, which was equally, if not more, flawed than Roe, because the majority, despite recognizing that the text didn’t support invalidating Connecticut’s ridiculous contraception ban, nonetheless decided to invent invisible “penumbras” from which it could single-handedly invent unenumerated constitutional rights.[4]

But that doesn’t mean that Griswold should be overruled. If it was, you can be sure that misguided legislators would try to outlaw contraception. After all, imagine a world where women cannot access contraception and cannot access abortion services.  That’s not a world that most reasonable people want to imagine.

Additionally, Thomas is wrong about Obergefell, which was defensible – and rightly decided – because, like the Seventh Circuit held in Baskin v. Bogan, same-sex marriage bans (and interracial marriage bans) violate the Equal Protection Clause.[5]

Thankfully, there is no support for Thomas’s position on the Court, as the majority explicitly and repeatedly stated that precedents such as Griswold and Obergefell were not implicated by the decision because they did not involve the state’s interest in protecting fetal life. And there is reason to believe the justices in the majority because their reputations would be forever tarnished if they betrayed what they had explicitly written in a prior opinion.

5.    Justice Ginsburg was right – if abortion can be justified by any provision in the text, it is in the Equal Protection                 Clause.

Despite Roe’s indefensible reasoning, there is arguably a basis, as Justice Ginsburg argued, to justify a right to abortion under the Equal Protection Clause. Abortion bans relegate women to second-class citizens. If a woman gets pregnant, she – and she alone – must often bear the financial, emotional, and psychological burdens of pregnancy, not to mention the medical issues (perhaps life-threatening) that some women may face if they are forced to carry a pregnancy to term. The burden on men, however, is not comparable and, in many cases, non-existent. Think about it: a woman who gets pregnant while in college, while pursuing a graduate degree, while starting a job, or while impoverished, must now bear the financial, emotional, and psychological burden of an unwanted pregnancy, which may cause that woman to drop out of school, lose her job, or sink further into poverty. The result is that some women will be prohibited from participating equally in the economic and social life of this country. That is wrong – and that is why the Equal Protection Clause arguably provides a basis to justify a constitutional right to abortion.

The problem is that neither Roe nor Casey was based primarily on the Equal Protection Clause. They were based on a right to privacy found nowhere in the Fourteenth Amendment and, later, on a substantive liberty interest that no reasonable interpretation of the Fourteenth Amendment can support. That is in part why Roe created such a backlash and, ultimately, was overruled.

6.    Imagine where we’d be if the Court had embraced judicial restraint and deference.

If liberals had embraced the concept of judicial restraint, and of deferring more frequently to the decisions of federal and state legislatures, the world might look very different now.[6]

New York’s law regulating who could carry a gun in public would still be on the books. The high school coach who prayed on the fifty-yard line after his high school’s football games would still be fired (although he shouldn’t have been fired). And abortion would still be accessible in every state, albeit with a fifteen-week limitation. For liberals, that sounds like a much better situation than they are in now.

That highlights the problem with judicial activism, which both conservative and liberal justices have embraced at various periods in the Court’s history. As stated above, when you rely on the Court to effectuate social change and disregard the constraints on judicial power, you give nine unelected judges the power to identify and define unenumerated rights for an entire nation based on their subjective policy preferences. And what the Court gives, it can certainly take away. In other words, advocates for an activist Court – conservative or liberal – will see their luck run out when the Court’s composition changes. That is precisely what happened in Dobbs.

7.    Stop criticizing the Court

Predictably, after Dobbs was released, some in the media, and even some scholars, brought out all the usual buzzwords, such as characterizing the decision as misogynistic, white supremacist, racist, and the like.[7] Even President Biden made disparaging comments about the Court that undermined his and the Court’s legitimacy.  Biden had the audacity to state during a conference in Madrid, Spain, that “[t]he one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States, in overruling not only Roe v. Wade, but essentially challenging the right to privacy.”[8] He should be ashamed.

Few, if any, however, including Biden, defended Roe on its merits. How could they? As Laurance Tribe stated, “one of the most curious things about Roe is that, beyond its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[9] Ultimately, the Court’s job is to interpret the Constitution, not reach the outcomes that you like. And even when you disagree with a decision, it’s wrong to hurl insults at the justices. At this juncture, time would be better spent lobbying state legislatures across the country to protect women’s bodily autonomy and provide access to abortion services.

 

[1] 381 U.S. 479 (1965).

[2] 505 U.S. 833 (1992).

[3] Id.

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

[5] 576 U.S. 644 (2015); 766 F. 3d 648 (2014).

[6] See Opinion, How Liberals Should Rethink Their View of the Supreme Court (June 21, 2022), available at: Opinion: Liberals should rethink view of Supreme Court - CNN

[7] See, e.g., Ramesh Ponnuru, The Times Distorts Alito’s Draft Opinion, (May 5, 2022), available at: New York Times Distorts Alito's ‘Dobbs’ Opinion | National Review

[8] Alex Gangitano, Biden Calls Supreme Court Overturning Roe v. Wade ‘Destabilizing’ (June 30, 2022), available at: Biden calls Supreme Court overturning Roe v. Wade ‘destabilizing’ | The Hill

[9] See, Opinion, Roe Was Wrong the Day It Was Decided. The Supreme Court Did the Right Thing (June 24, 2022), available at: Roe Was Wrong the Day it Was Decided. The Supreme Court Did The Right Thing | Opinion (newsweek.com)

Miranda Warnings Are A Right Without A Remedy

Last week’s decision in Vega v. Tekoh did not, on its own, monumentally change the Miranda warnings made famous in pop culture for half a century. Government investigators should still provide the same basic recitation of rights to a suspect in custody before conducting any interrogation, just as they have in the past. But Vega continued a pattern of Supreme Court decisions that have slowly undermined the value of those warnings, largely by declining to provide any meaningful remedy when investigators fail to provide them.

In 2010, Barry Friedman argued that the Supreme Court was engaged in the “stealth overruling” of precedent, with Miranda v. Arizona at the forefront of the trend. He claimed that the Court had slowly chipped away at Miranda’s doctrinal core until almost nothing remained, leaving it so weak that it could even be formally overruled under stare decisis factors that examine the workability of a decision and its alignment with subsequent legal developments. That has largely been achieved by permitting more and more statements taken after a violation of Miranda to be introduced at trial. As Vega noted, the Court has already permitted the introduction of non-Mirandized statements to impeach a witness’s testimony, if the statements are merely the “fruits” of the improper statement, or if officers conducted un-Mirandized questioning to respond to ongoing public safety concerns.

Vega appeared different from those decisions, because on its surface it did not directly implicate the constitutionality of the Miranda warnings or the use of un-Mirandized statements in criminal courts. The case concerned a criminal defendant who was later acquitted, then filed a civil suit against an officer who failed to provide the Miranda warnings. The civil suit sought monetary damages under 41 U.S.C §1983, which allows a citizen to sure for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” Thus, the case concerned whether a violation of Miranda’s rules was a sufficient deprivation of rights to give rise to a section 1983 suit.

Justice Alito’s majority opinion held that it did not. Alito noted that Miranda is only a prophylactic rule to protect Fifth Amendment rights, even if the Supreme Court has subsequently confirmed Miranda as “constitutionally based” and a “constitutional rule” in Dickerson v. United States, 530 U.S. 428, 440, 444 (2000). Although the Miranda rule is of constitutional nature and could not be altered by ordinary legislation, not all Miranda violations also violate the Fifth Amendment—such as when a technical Miranda violation does not result in a compelled statement. Alito also highlighted the myriad ways in which Miranda has been weakened over time—or, as Friedman would argue, has been stealthily overruled. Given Miranda’s weak pedigree, Alito claimed that section 1983 suits based upon Miranda should only be permitted if their value outweighed their costs. He then discounted any value to such suits at all, claiming that they would have little deterrent effect upon officers that might otherwise violate Fifth Amendment rights. The decision thus rejected section 1983 suites based upon Miranda violations.

Alito’s claim that civil liability for Miranda violations would do little to deter officers only makes sense if Miranda is a robust constitutional protection for Fifth Amendment rights. But the Court has already weakened the value of Miranda by limiting its application in the criminal context. As Alito admitted, prosecutors can readily introduce un-Mirandized statements during a criminal trial for a myriad of reasons related to public safety or the limited constitutional nature of Miranda itself. The modern Miranda rule thus provides little deterrent against Fifth Amendment violations. In that context, a civil remedy that likely would add some deterrence while providing a real remedy for those subject to Miranda violations. Allowing section 1983 suits based on Miranda violations would meaningfully change that status quo, despite Alito’s claim that those suits lack any real deterrent value.

What Vega demonstrates is not that Miranda rights have disappeared from the criminal justice landscape, but instead that they have become rights without any practical remedy. Statements obtained in violation of Miranda are routinely introduced in criminal court without any sanction against the violators, and now Vega signals that violators are not likely to face civil penalties either. In light of Miranda’s lack of remedies, it may even be good police practice to avoid Mirandizing suspects in the name of ensuring that incriminating statements emerge. Evidentiary consequences can seemingly always be worked around, and civil penalties are no real threat.

Vega is another step in the same course the Court has been taking for decades. It limits the remedies for a Miranda violation even further—this time in the civil context—ensuring that officers will face few consequences for those violations. Miranda’s place as a “constitutional rule” may not be under threat from Vega, but that is little salve. “Constitutional rule” status seems to afford no real remedies for those who suffer a violation.

Rejecting Canons of Construction and Following Legislative Intent to Define a Bee As a “Fish”

By now, you've probably heard that a California appellate court deemed bees "fish."   In fact, a truth-checking site, Verify.com, even posted a verification of the claim a court ruled a bee a fish as “true.”   See https://www.verifythis.com/article/news/verify/courts/bees-are-fish-says-california-court-for-conservation-law/536-ae3e9921-2b54-432e-8c51-66fc3e23eca4.  However unusual the idea of a bee as a fish might seem, the opinion from the Third District California Court of Appeal contains some very careful analysis and discussion of long established canons of statutory construction that will be helpful to appellate practitioners.  While the court in Almond Alliance of California v. Fish and Game Commission, __ Cal. App. 4th __ (C093542 May 21, 2022), definitely finessed some points and seemed to reject those canons not helpful to its conclusion, it also gave us an excellent modern discussion of what some canons of construction mean and how they rank against evidence of legislative intent.  

The Almond Alliance dispute involved a new California Fish and Game Commission designation of four types of bumble bees as protected "fish" under California's Endangered Species Act, Fish & G. Code § 2050 et seq.  The Act "directs the Fish and Game Commission (Commission) to 'establish a list of endangered species and a list of threatened species.'"  Almond Alliance, slip op. at 2. 

As the court explained, "The issue presented here is whether the bumble bee, a terrestrial invertebrate, falls within the definition of fish, as that term is used in the definitions of endangered species in section 2062, threatened species in section 2067, and candidate species . . . in section 2068 of the Act."  Id.  Slate.com noted:  because section 45 of the California Endangered Species Act “defines a fish as a ‘wild fish, mollusk, crustacean, invertebrate, amphibian, or part, spawn, or ovum of any of those animals,’” the State and environmental intervenors “argued that the inclusion of the word invertebrate technically allows the act to cover all invertebrates, not just aquatic ones.”  Emma Wallenbrock, The Completely Logical Reason Why a Bee Can Be Considered a Fish Now (June 04, 2022) https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.

The Almond Alliance court first concluded “the Commission has the authority to list an invertebrate as an endangered or threatened species.”  Next, the court “consider[ed] whether the Commission’s authority is limited to listing only aquatic invertebrates [and] conclude[d] the answer is, “no.”  Slip op. at 2. 

At the heart of the court’s decision is the use of legislative history to define “fish” and “invertebrate.”  The court begins this analysis by explaining:

Although the term fish is colloquially and commonly understood to refer to aquatic species, the term of art employed by the Legislature in the definition of fish in section 45 is not so limited.  We acknowledge the scope of the definition is ambiguous but also recognize we are not interpreting the definition on a blank slate. The legislative history supports the liberal interpretation of the Act (the lens through which we are required to construe the Act) that the Commission may list any invertebrate as an endangered or threatened.  

Id. at 2-3. 

Over the next 32 pages, the Almond Alliance court supports this conclusion by using a small number of past appellate cases, rejecting some canons of construction, and analyzing a significant amount of legislative language and history.  I strongly recommend reading the whole opinion, but I will summarize a few of the canons of construction the court rejected here.

First, the court reminded the parties of the general, underlying rule that courts must apply statutes as written, and “[i]f there is no ambiguity, we presume the lawmakers meant what they said, and we apply the term or phrase in accordance with that meaning.“   Almond Alliance, slip op. at 19.  According to the court, “[i]f, however, the statutory terms are ambiguous, then we may resort to extrinsic sources, including the ostensible objects to be achieved and the legislative history.”  Id.  Thus, “’[o]ur fundamental task . . . is to ascertain the intent of the lawmakers so as to effectuate the purpose of the statute.’” Id., quoting California Forestry Assn. v. California Fish & Game Commission, 156 Cal. App. 4th 1535, 1544-1545 (2007).   “Where . . . the Legislature has provided a technical definition of a word, we construe the term of art in accordance with the technical meaning,” and “we are tasked with liberally construing the Act to effectuate its remedial purpose.” Id. at 19-20.

Second, the court rejected petitioners’ rule against surplusage canon argument that applying the section 45 definition of “fish” as including invertebrates here would write the listing of “amphibians” out of other sections.   The court explained the “rle against surplusage . . . provides courts should “avoid, if possible, interpretations that render a part of a statute surplusage.”  Id. at 20.  Interestingly, the court recognized a “textual tension with the Legislature’s inclusion of amphibian in [some] sections,” but noted:  “the rule against surplusage is not, however, an infallible canon. The canon is merely a “guide for ascertaining legislative intent, it is not a command.”  Id. 

Next, the Almond Alliance court rejected “petitioners’ argument that the noscitur a sociis canon should be applied to read ‘a native species or subspecies of a bird, mammal, fish, amphibian, reptile, or plant’ in sections 2062, 2067, and 2068, as encompassing only vertebrate animals.”  Id. at 21.  The court dismissed this idea because, “[p]lainly, section 45 expressly includes invertebrates within the definition of fish.”  Id.

Third, after a lengthy discussion legislative history, the Almond Alliance court considered “petitioners’ suggested application of the noscitur a sociis canon,” which “means ‘a word takes meaning from the company it keeps.’”  Id. at 33.  Under this rule, a “word of uncertain meaning may be known from its associates and its meaning ‘enlarged or restrained by reference to the object of the whole clause in which it is used.’” Id.  “In accordance with this principle of construction, a court will adopt a restrictive meaning of a listed item if acceptance of a more expansive meaning would make other items in the list unnecessary or redundant, or would otherwise make the item markedly dissimilar to the other items in the list.” Id. 

The Almond Alliance court “decline[d] to apply the statutory interpretation canon here because:   

If we were to apply the noscitur a sociis canon to the term invertebrate in section 45 to limit and restrict the term to aquatic species, as petitioners suggest, we would have to apply that limitation to all items in the list.  In other words, we would have to conclude the Commission may list only aquatic mollusks, crustaceans, and amphibians as well. Such a conclusion is directly at odds with the Legislature’s approval of the Commission’s listing of a terrestrial mollusk [the bristle snail, a land invertebrate  previously protected] and invertebrate as a threatened species. Furthermore, limiting the term to aquatic would require a restrictive rather than liberal interpretation of the Act, which is also directly at odds with our duty to liberally construe the remedial statutes contained therein.

Id. at 33-34.

Based on its review of legislative history and rejection of petitioners’ arguments, the court concluded “the Commission may list any invertebrate,” including a terrestrial invertebrate, as an endangered or threatened species under 2062 and 2067.”  Therefore, the Almond Alliance court ruled the Commission could designate a bee as a “fish” for purposes of the Endangered Species Act.  Id. at 35.  As Emma Wallenbrock noted for Slate:  “It’s unclear whether this is a permanent victory, as the agricultural groups may decide to take the case to the California Supreme Court,” but the ruling could be “good news for the bees—and good news for our stomachs, too” because the “Center for Food Safety, states that “one out of every three bites of food we eat [comes] from a crop pollinated by bees.”  Wallenbrock, Why a Bee Can Be Considered a Fish Now, https://slate.com/technology/2022/06/california-endangered-species-bees-fish.html.  Even if this possible “good news” falls on review, the case certainly provides an interesting discussion of canons of construction.