Appellate Advocacy Blog

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.

Appellate Advocacy Blog Weekly Roundup Friday, June 3

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

Supreme Court News and Opinions:

This was a relatively quiet work at the Supreme Court, as the Court did not issue any opinions this week.  Nonetheless, the Court faces a substantial task in completing its work as the end of the term approaches.   As of now, the Court has more than 30 decisions still outstanding in argued cases.  The Roberts Court has traditionally gotten all of its cases out by the end of June.

• • More from Bloomberg

On Tuesday, the Court issued a brief order in which it blocked a controversial Texas law that sought to bar large social media platforms from removing posts based on the viewpoints expressed.  Chief Justice Roberts and Justices Kavanaugh, Barrett, Breyer, and Sotomayor joined together to vote in favor of putting the law on hold, while Justices Thomas, Alito, Gorsuch, and Kagan dissented.

• • More from SCOTUSblog

Also on Tuesday, the Court issued a brief order in which it rejected a request from three Texas lawmakers to delay giving depositions in lawsuits challenging redistricting plans in the state.  No dissents were noted.

• • More from SCOTUSblog

State Appellate Court Opinions and News:

On Wednesday, the presiding justice of the California appeals court in Sacramento retired as part of punishment announced for his delays in resolving 200 cases over a decade.  The Commission on Judicial Reform in the state said that the Justice "engaged in a pattern of delay in deciding a significant number of appellate cases over a lengthy period."

• • More from the Sacramento Bee

Appellate Jobs:

The Washington State Attorney General's Office is hiring an Assistant Attorney General for its Torts Appellate Program.  The division defends state agencies, officials, and employees when sued in tort and in some civil rights matters.

• • Details HERE

Whither (wither?) Strict Scrutiny?

Professor Gerald Gunther once memorably described strict scrutiny as “‘strict’ in theory and fatal in fact.”[1] And, courts have employed that strict scrutiny to content-based restrictions on free speech,[2] as well as burdens on fundamental rights under both due process[3] and equal protection.[4] It is easy to suppose, even if wrong, that strict scrutiny applies to all fundamental rights.

However, the Supreme Court has adopted different standards for different constitutional rights that make such a knee-jerk response to the presence of a fundamental right the wrong move. For example, the free-exercise clause in a much-criticized decision written by Justice Scalia limited the scope of this protection by requiring the state action to target religion or a religion for different treatment, as opposed to being a valid, neutral law of general applicability.[5] The Seventh Amendment’s jury-trial right also eschews strict scrutiny in favor of a historical test.[6]

Recently, a concurring opinion (to his own majority opinion) by Eleventh Circuit Judge Kevin Newsom speculated on the proper test for the Second Amendment.[7] He rejected one based on levels of scrutiny because the majority in District of Columbia v. Heller[8] expressly shunned any type of “judge-empowering ‘interest-balancing inquiry.’”[9] 554 U.S. at 634.

Newsom instead endorsed a view he credits to a Justice Kavanaugh dissent written when Kavanaugh sat on the D.C. Circuit. That opinion stated that “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.”[10] Newsom, though, is not entirely happy with that formulation. He questions its inclusion of “tradition” as a metric.[11] As he explains, if tradition represents the original public meaning, it duplicates what history provides.[12] If it “expand[s] the inquiry beyond the original public meaning—say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.”[13]

Newsom adds a “bookmark for future reflection and inquiry than anything else” to his opinion.[14] He states that it is problematic to reject balancing tests in the context of the Second Amendment, yet still apply it to other fundamental rights. Using the First Amendment as an example, he criticizes the balancing tests adopted there as “so choked with different variations of means-ends tests that one sometimes forgets what the constitutional text even says.”[15] He says that the “doctrine is judge-empowering and, I fear, freedom-diluting.”[16] He suggests that “bigger questions” need to be raised to decide whether applying scrutiny at any level should continue.

The concurrence is provocative and suggests that the roiling of doctrine in other areas of law may extend to how courts should view fundamental rights. However, there is no holy grail that reduces judicial discretion in favor of assuring liberty. Construing constitutional rights is no less subject to manipulation based on a judge’s views if the judge subscribes to the original public meaning school of interpretation, rather than balancing tests. Newsom appears to agree that Heller “was perhaps ‘the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.’”[17] Yet, Heller adopted a historical analysis others have criticized as skewed to obtain a result.[18] Those who expect the pending SCOTUS decision in N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen[19] before the Supreme Court to invalidate New York’s century-old restrictive gun law recognize that history supporting the type of government authority the statute represents is likely to make little difference to the majority. And, original public meaning cannot reflect our rejection of ideas about race and gender from the founding period.

So, what should we make of Newsom’s concurrence? The opinion seems further evidence that nothing about our approach to constitutional law is settled – and the questioning of strict scrutiny as an interpretative tool is only beginning.

 

[1] Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).

[2] See City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).

[3] Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).

[4] See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).

[5] Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).

[6] Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).

[7] United States v. Jimenez-Shilon, No. 20-13139, 2022 WL 1613203, at *7 (11th Cir. May 23, 2022) (Newsom, J., concurring).

[8]  554 U.S. 570 (2008).

[9] Jimenez-Shilon, 2022 WL 1613203, at *8 (Newsom, J., concurring).

[10] Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).

[11] Jimenez-Shilon, 2022 WL 1613203, at *8 n.2 (Newsom, J., concurring).

[12] Id. (Newsom, J., concurring).

[13] Id. (Newsom, J., concurring).

[14] Id. at *9 (Newsom, J., concurring).

[15] Id. at *10(Newsom, J., concurring).

[16] Id. at *11 (Newsom, J., concurring).

[17] Id. at *8 (Newsom, J., concurring) (quoting United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)).

[18] See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Mark Anthony Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts. J. 413 (2020).

[19] No. 20-843.

Camille Vasquez Is a Rockstar

Actor Johnny Depp is currently suing his ex-wife, actress Amber Heard, for defamation, and the trial is both entertaining and educational – particularly for law students and lawyers. The reason for that is Camille Vasquez, who graduated from the University of Southern California and Southwestern Law School, and whose performance at the trial is equivalent to a master class in persuasive advocacy.

Put simply, Camille Vasquez is a rockstar.

Law students (and lawyers) should watch Camille because they will learn more from her in a few hours than they will likely learn in three years of law school. Below are a few reasons why Camille Vasquez is an outstanding attorney, and why she represents the best of the legal profession.

1.    She is confident and owns the courtroom.

Whether it is conducting the cross-examination of Amber Heard or objecting to the adversary’s questions on direct examination, Camille Vasquez is incredibly confident and self-assured. Quite frankly, Vasquez has swagger. She knows she is among the best. She owns the courtroom. And if you try to bullshit her, it won’t end well for you.

Such confidence, which Vasquez has exuded in all aspects of the trial, is critical to creating the perception with the court and jury that you know what you’re doing, and that you are a credible advocate. When you create that impression, the judge and jury are more likely to view you and your client more favorably – and rule in your favor.

2.    She uses non-verbal techniques effectively.

When arguing before a judge or jury, your non-verbal techniques are equally, if not more, important, than what you say. Non-verbal techniques, such as posture, facial expressions, eye contact, and variance in tone, attitude, and emphasis, convey to the jury, among other things, your confidence, knowledge of the record, and belief in your position.

Camille Vasquez uses non-verbal techniques extremely effectively. When Vasquez was cross-examining Amber Heard, for example, she stood upright, at times leaning into the podium to emphasize a critical point. She varied her facial expressions to convey skepticism, if not disbelief, of some of Heard’s responses. She remained focused and confident at all times. She never laughed or displayed inappropriate emotional responses. She never fidgeted, folded her arms, or paced about the courtroom. She listened to Heard’s responses and retained eye contact. In short, her non-verbal communications showed that she had perfect knowledge of the record and that she was owning the witness and the courtroom.

3.    She knows how to adjust and follow up during cross-examination.

During cross-examination, Camille Vasquez adjusted effectively to Amber Heard’s sometimes-evasive responses with follow-up questions that forced Heard to concede unfavorable facts. In so doing, Vasquez didn’t simply recite a list of questions and hope that she would receive a favorable answer. Instead, she knew Heard was going to be evasive at times, and she adjusted in the moment, asking follow-up questions that would not allow Heard to avoid conceding unfavorable facts. For example, during cross-examination, Heard testified that she had pledged/donated seven million dollars to a particular charity. Vasquez refused to allow Heard to conflate the distinction between pledging and donating money, forcing Heard to admit that, although she had pledged seven million dollars to a charity, she never actually donated any money to that charity.

4.    She knows how to strategically include comments that undercut a witness’s credibility.

Effective advocacy includes strategically commenting on a witness’s testimony during cross-examination to express skepticism about a witness’s truthfulness or highlight a witness’s non-responsiveness. Simply put, cross-examination is not merely about asking questions. It’s about having a conversation with the witness and, through excellent questions, non-verbal communication, and strategic commentary on the witness’s responses, owning that conversation and eliciting facts that damage the adversary’s credibility. For example, during the cross-examination, Vasquez made comments such as:

“That wasn’t my question, Ms. Heard.” (conveying to the jury that Heard was being evasive)

“You know what a deposition is, right Ms. Heard?” (implying that Heard is ignorant and trying to hide unfavorable facts)

“You understand the difference between pledging money and donating money, right?” (this may not be the exact quote, but it’s similar and conveys that Ms. Heard’s attempt to say that pledging and donating money are synonymous makes no sense)

The inclusion of such comments enables a lawyer to communicate subtly to the jury that the witness’s testimony is not credible. Put another way, when cross-examining a witness, you can still “testify” if you do so strategically and subtly. Camille Vasquez did that very effectively.

5.    She is prepared and has outworked Amber Heard’s attorneys.

This point doesn’t need much explanation, except to say that many people have no idea what it means to be truly prepared for a trial (or a midterm or final examination, for that matter). Preparation means, among other things, knowing every inch of the record. It means being able to recite the page and line number of a deposition when conducting a direct or cross-examination. It means knowing the rules of evidence and practicing objections thousands of times, and being able to anticipate responses to those objections. It means knowing the relevant case law so well that you never need notes.

Camille Vasquez was incredibly prepared for this trial and almost certainly as prepared as any human being can be for a trial. She knew the rules of evidence so well that every objectionable question from Heard’s attorney was met with an objection by Vasquez – and sustained nearly every time. The link below shows the preparation – and sheer talent – that Vasquez has displayed during the trial.

Amber Heard's Lawyer SHUT DOWN! 40+ OBJECTIONS Within 19 MINUTES (Camille Vasquez) - YouTube

6.    She’s very smart.

Intelligence matters, and great lawyers are highly intelligent. Camille Vasquez is no exception – her analytical abilities, quick thinking, and ability to articulate complex points in a clear and relatable manner, reflect her impressive intellect.

7.    She cares for and is a passionate advocate for her client.

This trial has shown that Camille Vasquez is a kind and passionate person who cares deeply for her clients and for the causes that she is advocating. She represents Johnny Depp with compassion and empathy, and through her interactions with Depp, you can obviously see that she cares about him and is doing everything possible to achieve a favorable result.

In short, she is a good person – and good people make the best attorneys.

A Plea for Pro Bono Service

In terms of pro bono service, our profession has a long way to go.  

Model Rule of Professional Conduct 6.1 makes clear that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay."  To that end, the Rule says that lawyers "should aspire to render at least fifty (50) hours of pro bono publico legal services per year." 

Let's be honest, though: 50 hours is pretty paltry.  If you take a two-week vacation, you can still satisfy Rule 6.1 with just one pro bono hour per week.  Even for busy lawyers, that's hardly "aspir[ational]."  Yet a large majority of lawyers aren't even approaching that bare-bones ethical minimum.  In 2017, the ABA's Standing Committee on Pro Bono and Public Service conducted a survey of over 47,000 lawyers across 24 states.  Here's what they found:

• Barely half of responding lawyers provided any pro bono services in 2016.
• Not even 20% of responding lawyers fulfilled Rule 6.1's minimum requirement.
• Roughly one in five responding attorneys reported never having provided pro bono services of any kind.  (Read: Roughly one in five lawyers admitted to having committed professional misconduct.)

And the problem isn't that there's too little pro bono work to go around.  The 2017 Justice Gap Report, published by the Legal Services Corporation, revealed that in 2016, 86% of civil legal problems reported by low-income Americans received inadequate or no legal assistance.  And there's good reason to believe that the pandemic has exacerbated that access-to-justice gap.  

As attorneys, we have a state-sanctioned monopoly on legal services.  If we don't work to close the access-to-justice gap, no one will.  But across the board, we are falling far short of our professional and moral obligations.  We must do better.  

Roe v. Wade is Probably Going to the “Graveyard of the Forgotten Past”

   Based on the stunning and unprecedented leak of Justice Samuel Alito’s draft opinion in Dobbs v. Jackson Women’s Health, a slim majority of the Court may overturn Roe v. Wade and Planned Parenthood v. Casey and return the abortion issue to state legislatures – and the democratic process where it always belonged. Before discussing Roe in detail, a few developments from the last week warrant mention.

    First, the leaker, who is possibly a misguided law clerk, is a disgrace. The idea that you can assert political pressure on the Court – an independent branch of government – is ridiculous. What’s shocking is that this leaker is likely from a top law school. And the incredible lack of judgment – apparently believing that such pressure would influence the Court’s decision – shows the leaker has no respect for the Court’s institutional role and no regard for the need to insulate the Court from political pressure,

    Second, the misleading and, quite frankly, intellectually dishonest comments by some scholars, politicians, and journalists – along with threats to protests at the justices’ homes – misrepresent fundamentally the impact of reversing Roe, misapprehend the Court’s role in a constitutional democracy, and threaten to undermine severely the Court’s legitimacy. Put simply, the Court’s job is not to base its decisions on policy outcomes that the public deems desirable; its job is to interpret the Constitution.

    Third, public discourse following the unprecedented leak of Justice Samuel Alito’s draft opinion demonstrates a startling disregard for the fatal flaws in the Court’s abortion jurisprudence, which both liberal and conservative scholars, including Justice Ruth Bader Ginsburg, identified in the decades after Roe was decided. The fact that scholars, politicians, and journalists have so utterly misrepresented Roe and made unhinged attacks on the Court, shows how significantly this discourse has declined in quality and integrity.

I.    The Reality of Abortion Jurisprudence

    As a matter of constitutional law, Roe is one of the worst decisions in the last century (outside of, for example, Plessy and Korematsu). To begin with, Roe has no basis in the text of the Constitution. Furthermore, the right to abortion is not inferable from any textually-grounded right. Finally, the right to abortion is not deeply rooted in the nation’s history and traditions.

    A.    Abortion has no basis in the text of the Constitution.

    In Roe, the Court based its decision on, among other things, the Fourteenth Amendment’s Due Process Clause, which provides in relevant part that “no state shall … any person of life, liberty, or property, without due process of law.”[1] Essentially, this means that states must afford citizens fair procedures (e.g., a trial) before citizens can be executed, imprisoned, or subject to property forfeiture. Nowhere in this language can any substantive constitutional right be discerned, particularly the right to abortion.

    And the Court in Roe likely knew that.

    However, the Court remained undeterred and instead relied on Griswold v. Connecticut to invent a fundamental right that no reading of the Constitution’s text could possibly support. In Griswold, the Court invalidated an admittedly-ridiculous law that banned contraception.[2] In so doing, the Court held that, although no specific textual provision supported invalidating the law, the Bill of Rights contained invisible “penumbras, formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance"[3] On the basis of these judicially-created “penumbras,” the Court discovered a substantive right to privacy in the Constitution, even though the majority could not identify exactly where in the Constitution this right “emanated.” In other words, the Court blatantly manipulated  -- in fact, ignored – the Constitution’s text, to reach a result that no interpretation could support, but that their justices preferred based on their subjective values.

    Subsequently, the Court in Roe relied on this nebulous and impossible-to-define (or limit) right to privacy, holding that this “right” was “broad enough” to encompass a right to abortion. To make matters worse, in Planned Parenthood v. Casey, the Court, in reaffirming Roe, held that the word “liberty” in the Fourteenth Amendment’s Due Process Clause encompassed various unenumerated and substantive liberty interests that cannot be found anywhere in the Constitution – but that the justices subjectively deemed necessary to protect citizens’ liberty. In so holding, Justice Anthony Kennedy wrote that “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe and the mystery of human life.”[4]

    One can hardly find decisions or language (the “mystery of life” passage) more anti-democratic and more untethered to the Constitution’s text.

    It should come as no surprise that liberal and conservative scholars overwhelmingly condemned Roe’s reasoning. Even Justice Ruth Bader Ginsburg believed that Roe was far too sweeping, such that “it seemed to have stopped the momentum on the side of change.”[5] Additionally, as Professor John Hart Ely stated:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.[6]

    Likewise,  Harvard Law Professor Laurence Tribe stated that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[7] The list goes on and on, but you get the point.

    It should also come as no surprise that, in current discourse, very few scholars defend Roe on its merits.

    The Court should have never gotten involved in the abortion issue. Because the Constitution was silent on this issue, and because no provision could have possibly been interpreted to protect a right to abortion, this was a matter for the people to decide, not nine unelected judges.

        B.    Abortion is not inferable from any textually-based right.

    The above argument is not meant to suggest that the Court cannot and should not create unenumerated constitutional rights, particularly where those rights are inferable from the text. Certainly, the First Amendment right to free speech implies a right to assembly. Likewise, the Fifth Amendment right against self-incrimination implies that the prosecution cannot comment on a defendant’s refusal to take the stand at trial (this is not an implied right per se, but you get the point). Similarly, the Sixth Amendment right to counsel implies the right to effective assistance of counsel and the Eighth Amendment ban on cruel and unusual punishment implies a right to be free from punishments that are disproportionate to the crime of conviction (or the defendant’s blameworthiness).

    Nowhere in the Fourteenth Amendment’s Due Process Clause, however, is the right to abortion even remotely inferable. And that is the point. There was no constitutional basis for creating this right.

        C.    Abortion is not deeply rooted in the nation’s history and tradition.

    To the extent that scholars and some members of the Court support the substantive due process doctrine and the creation of unenumerated rights under this doctrine, it comes with two caveats: first, those rights must be deeply rooted in the nation’s history and traditions. For example, such rights include, but are not limited to, the right to travel and the right to educate and rear one’s children.[8] The right to abortion, however, is not deeply rooted in our nation’s history and tradition and was widely outlawed for most of American history.

    Additionally, the asserted unenumerated right must be carefully and narrowly described. In Washington v. Glucksberg, the Court emphasized this point when holding that the Constitution did not protect a right to assisted suicide.[9] In so doing, the Court emphasized that its members should be hesitant to create unenumerated rights because doing prevents the people in each state from deciding these issues democratically and thus from determining from the bottom up, not the top-down, which unenumerated rights should be recognized.

    The Court’s decisions in Roe and Casey underscore the problem with creating nebulous unenumerated rights, such as the right to “privacy” and “liberty,” and then creating new rights based on these broad formulations. Specifically, these so-called rights have no conceivable limitations and could theoretically encompass unenumerated rights (and policy outcomes) that the justices deem desirable, that have no relationship to the Constitution, and that reflect nothing more than subjectivity and arbitrariness. That is a prescription for anti-democratic governance because it allows nine unelected judges to impose their policy predilections on an entire nation – without any accountability whatsoever. After all, why doesn’t the right to privacy and liberty encompass a right to use illegal drugs, marry a family member, or commit suicide? That, in a nutshell, is the problem with Roe.

    It's also the problem with relying on natural rights theory to create unenumerated rights. Such an approach would be equally, if not more, broad and limitless than privacy and liberty, and would cause the same problem: the justices could “discover” whatever right they want whenever they wanted. This would lead to a constitutional jurisprudence of the most undemocratic kind.

    Ultimately, Roe and Casey are likely to be overturned despite principles of stare decisis. These decisions were, as Justice Alito said in his draft opinion, egregiously wrong.

II.    Overturning Roe will not endanger other constitutional rights.

    Some commentators have suggested that overturning Roe and Casey will lead the Court to overturn other decisions, such as Loving v. Virginia, which rightly invalidated bans on interracial marriage, and Obergefell v. Hodges, which rightly invalidated bans on same-sex marriage.[10] This concern is misplaced. Unlike Roe, cases such as Loving and Obergefell were based in substantial part on the text, namely, the Equal Protection Clause.

    Roe, however, was not – and that again is the problem. Indeed, a plausible argument could be made that abortion bans violate the Equal Protection Clause. Specifically, such bans prohibit women from participating equally in the social, economic, and political aspects of our society because they force women to bear the financial, emotional, and psychological burdens of an unwanted pregnancy. Had Roe been based on the Equal Protection Clause, it would have had a sounder and more justifiable constitutional basis.

III.    The real threat that overturning Roe and Casey presents.

    Despite Roe’s and Casey’s obvious flaws, overturning these decisions at this point – nearly fifty years after the Court decided Roe – will severely undermine the Court’s institutional legitimacy.

    To be sure, the public’s opinion of the Court results, at least in part, from the perception that some decisions reflect the Court’s current ideological composition. When the justices’ votes conveniently and consistently align with their policy preferences – and constitutional meaning changes based on whether a majority of the justices is liberal or conservative – the perception is that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. Of course, although the justices continually emphasize that their decisions are never motivated by policy preferences, the fact remains that perception matters more than reality. Indeed, it is reality. Any decision that denies Petitioners the ability to seek relief in federal court would re-enforce this perception. It would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. It would suggest that constitutional rights, however, ill-founded, can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2022 than there were in 1973 or 1992. That is the point – and the problem – with overturning Roe and Casey now. In short, yes, Roe and Casey were terrible decisions, but at this juncture, overruling them is almost certain to cause more harm than good, particularly to the Court’s legitimacy and to women. On the merits, however, the downfall of Roe and Casey is understandable as a matter of constitutional law.

      In any event, Roe and Casey are perfect examples of how not to create unenumerated rights. When you give the Supreme Court the right to identify enumerated rights for an entire nation based on broad standards that invite subjectivity and arbitrariness, and when you base your view of a decision’s legitimacy on whether it comports with your policy predilections, democracy truly is in danger. The Court’s job is to interpret the Constitution, not to reach outcomes that you like. Put simply, the process by which the Court reaches its decisions is equally, if not more, important than the outcomes themselves.

 

[1] U.S. Const., Amend. XIV.

[2] 381 U.S. 479 (1965).

[3] Id.

[4] 505 U.S. 833 (1992).

[5] Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu)

[6] John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920 (1973).

[7] Laurence Tribe, The Supreme Court, 1972 Term–Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harvard Law Review 1, 7 (1973).

[8] See, e.g., Meyer v. Nebraska, 262 U.S. 390 (1923); Wisconsin v. Yoder, 406 U.S. 205 (1972).

[9] 521 U.S. 702 (1997)

[10] 388 U.S. 1 (1967);  576 U.S. 644 (2015).

Appealing TROs: Some “Practical” Advice

    When 1Ls receive assignments in persuasive legal writing and appellate advocacy, their professors will surely remind them that the appellate process typically begins after the trial court has issued a final and appealable order, from which the litigants can file a notice of appeal. Interlocutory appeals are possible, the professor will note, but only on rare occasions that fall outside the typical advocacy curriculum.

    But perhaps the exceptions to the final judgment rule are worthy of greater exploration, especially in the case of temporary restraining orders that have dramatic, fast-moving effects in the real world. TROs are necessarily ephemeral; they are designed to prevent significant damage to a party for a brief time period, during which the court can hear more detailed arguments about the case and reach a reasoned determination about whether to issue a temporary or permanent injunction. At times, though, TROs can have a more meaningful impact. And sometimes, TROs can become longer-term placeholders for a court than the title seems to suggest. In those situations, parties may need an avenue to rapid appellate review of a court’s issuance of a TRO to avoid severe damages to a party’s interests.

    In her forthcoming article Appealable TROs, Professor Bernadette Genetin catalogues the history of appealable TROs and argues for a limited number of interlocutory appeals from TROs under 28 U.S.C. § 1292(a)(1). Providing the example of the Ninth Circuit’s finding that it had jurisdiction to review a district court’s TRO barring enforcement of the so-called “travel ban” issued by the Trump Administration in 2017, Genetin explains the damage that might be done by bright-line rules banning early appeals from TROs. A TRO should be appealable, Genetin suggests, when it has the practical effect of an injunction; threatens serious or irreparable injury; and effective review is available only through immediate appeal. Though such appeals should remain unusual, they may be necessary where circumstances are extraordinary; where there is a need to prevent serious loss of a high order of magnitude on a time-sensitive basis; where the issue falls within the appellate court’s particular and recognized expertise; or where a TRO exhibits many important characteristics of a preliminary injunction. For Genetin, the “practical effect” analysis gives appellate courts an important avenue to evaluate proposed action by the executive branch that the executive deems immediately necessary, yet others suggest violates the structural norms of our government or constitutional prerogatives of coordinate branches. Appellate courts may rightly lower the threshold showing of irreparable harm typically needed to support interlocutory review of restraining orders in order to address the exigencies of the situation and its importance to our governmental structure. As the Ninth Circuit’s decision in Washington v. Trump, 847 F.2d 1151, 1158 (9th Cir. 2017) illustrates, the decision to permit such interlocutory appeals can have an important effect both in determining the limits of executive action and in meaningfully enforcing those limits when necessary.

    Interlocutory appeals of TROs are, and should be, rare. But as Professor Genetin notes, bright-line rules prohibiting such interlocutory appeals fail to account for the flexibility needed to address rapidly-evolving issues of governmental structure in our present political environment. Courts should not hesitate to implement such limited flexibility in the years to come.

The Logic of a Courtroom, the Skewing Influence of Politics

As appellate advocates, we honor the rule of law because it depends on logic and reason. When we muster enough support in our favor, we expect a good result, even if we are sometimes disappointed in that expectation.

The rule of law also means that, regardless of an opponent’s money, clout, and influence, a level playing field exists so that the strength of one's arguments made should prevail. At least, that is the theory. And, in most instances, the theory holds, evidenced by the frequency of 9-0 decisions in the Supreme Court, despite vastly different judicial philosophies and ideological divisions among the justices.

Part of the reason the theory holds is that judges are supposed to park their politics at the courthouse door and not inside the courtroom. In one famous example of doing so, Salmon Chase was President Abraham Lincoln’s treasury secretary and had been a driving force behind the Legal Tender Act, which allowed paper money to replace silver or gold as currency and finance the Civil War. When an opening for chief justice came up, one reason Lincoln tapped Chase (besides eliminating a potential presidential rival) was an assumption that he would “sustain what has been done in regard to emancipation and the legal tenders.” It turned out to be a miscalculation. Chase led a slim majority in declaring the act unconstitutional. Some have explained the turnaround as Chase doing his best to serve his client as treasury secretary to draft a valid act and later deciding that his best was still not good enough.

We enjoy stories about judges putting the rule of law above politics, but we also live in an era where the lines between law and politics seem to be dissolving. The line was never as bold and clear as our learning and imagination suggested. Yet, today, the marriage of politics and law appears more evident, particularly in the appellate courts.   

It does not just come with threats of impeachment by disappointed legislators who resent a court’s decision striking down their handiwork.[1] It also comes from the interjection of social and political debates in opinions unrelated to those debates, as well as the politicization of judicial philosophies. Many senators who have announced that they plan to vote in opposition to Supreme Court nominee Ketanji Brown Jackson have explained their rationale for doing so because she would not commit to originalism. Although she testified that she uses originalism, that was not enough. Still, few of those senators who have insisted on an unalloyed commitment to originalism could explain how it works as an interpretive tool behind a simplistic but uninforming definition. They probably hold the false belief that originalism always leads to a single result.

One of the most outspoken originalists on the Court was Justice Antonin Scalia, who liked to describe himself as a “fainthearted originalist.” He held no brief where originalism would lead to an absurd result. He also fashioned his originalism, at times, to fit his preexisting views as in D.C. v. Heller.[2] The fractured version of history he recited to support his conclusion was assailed by two conservative jurists for its selective use of history.[3] Other times his use of the tool led him to a conclusion that the Senate’s originalism fans would probably oppose, such as in the Flag-Burning Cases,[4] where he voted to grant First Amendment protection to that act of protest.

Originalism is no panacea against imbuing interpretation with personal predilections, but advocates must be prepared to provide the necessary fodder for those who follow that approach. Pointedly, it does not always inform the issue. Justice Samuel Alito once teased Scalia for his sometimes-rigid adherence to originalism during oral argument in Brown v. Ent. Merchants Ass’n,[5] where the Court held a California statute that restricted the sale or rental of violent video games did not comport with the First Amendment. After Scalia had posed a question to the advocate, who hesitated in responding, Alito mockingly explained the question: “What Justice Scalia is asking is what did James Madison think about video games?”

Perhaps appellate advocates have always contended with politics in preparing briefs and oral arguments, but the impact of it today seems more acute than at any time in my experience. And the nature of the politics intruding on judicial decision-making also seems more extreme.

 

[1] See, e.g., Haley BeMiller, Jessie Balmert, and Laura A. Bischoff, “Ohio Republicans discussing impeachment of Chief Justice Maureen O'Connor after map ruling,” Columbus Dispatch, Mar. 18, 2022, https://www.dispatch.com/story/news/2022/03/18/ohio-republicans-want-impeach-maureen-oconnor-over-redistricting/7088996001/.

[2] 554 U.S. 570 (2008).

[3] See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic (Aug. 24, 2012) (book review), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.

[4] Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).

[5] 564 U.S. 786 (2011).

The Best Possible Nominee

            Tomorrow, the Senate Judiciary Committee begins confirmation hearings on the nomination of Judge Ketanji Brown Jackson to the Supreme Court. Every objective measure demonstrates that Judge Jackson is exceptionally well-qualified to take a seat on that Court. One argument that her opposition has latched onto asserts that her nomination reflects identity politics, rather than a search for some hypothetically best-qualified person. The idea that a best-qualified person exists wrongly presupposes that metrics exist that can rank otherwise qualified persons. It also disregards the lessons of history.

            John Marshall earned the sobriquet, the “Great Chief Justice,” for establishing the judiciary as a true co-equal branch of government. When John Jay turned down reappointment to his old post, lame-duck John Adams nominated Marshall, his secretary of state, as a loyal Federalist who would fight the policies of the incoming Jefferson administration. There was little reason to think Marshall would become the essential judicial figure that he did. Senator Jonathan Dayton voted to confirm Marshall only because rejection would result in the likely nomination of “some other character more improper, and more disgusting.”

            Other justices achieved hall-of-fame status despite controversy or obscurity when named. The nomination of Louis D. Brandeis was as controversial as any nomination. One observer said it was as much a call to arms as the resolution that declared the Spanish-American War. Brandeis faced opposition from seven former presidents of the American Bar Association, as well as the president of his alma mater, Harvard University. Yet, his place in the pantheon of great Supreme Court justices is unquestioned today.

            Dwight Eisenhower wanted to nominate a youthful Catholic Democrat to shore up a needed constituency for his upcoming reelection campaign. Few experienced judges fit that bill. Just months before the vacancy occurred, William Brennan, then sitting on the New Jersey Supreme Court, spoke at a Justice Department conference about his state’s judicial reforms, but only as a last-minute substitute for an ill New Jersey Chief Justice Arthur Vanderbilt. Despite the dry subject, Brennan so impressed officials that his name catapulted to the top of the list when a seat opened.

            When Brennan was nominated, three members of the Supreme Court told the Washington Star that they had never heard of him. After his confirmation, he admitted, “I’m the mule that was entered in the Kentucky Derby. I don’t expect to distinguish myself but I do expect to benefit from the association.” Justice Felix Frankfurter, who had been Brennan’s professor, could not find anyone, himself included, who remembered Brennan as a student. Today, scholars consider Brennan the most influential justice of the 20th century.

            In contrast, Frankfurter arrived at the Supreme Court as a much-celebrated lawyer and scholar – criteria that might qualify him as the best candidate of his time. Frankfurter’s judicial tenure did not match expectations. His insistent didacticism rubbed his fellow justices the wrong way. As a member of the Court, the one-time activist lawyer became an outsized advocate of judicial restraint, which further limited his long-term impact. He authored few landmark decisions.

            Many other examples exist and demonstrate that there is no single set of criteria to predict success. The idea that there is a single best candidate for nomination also ignores a critical confounding factor: real-world experience informs any conception of the idealized reasonable person that the law uses as a standard for measuring how law sensibly applies to a particular set of facts. Even in constitutional law, rationality plays an outsized role. Justice Antonin Scalia, for example, championed originalism as a school of constitutional interpretation, yet described himself as a “faint-hearted originalist” because he understood that too rigid an approach to construing the Constitution would produce absurd and indefensible results. What is reasonable can also differ based on experiences by race, religion, gender, national origin, or sexual orientation – as well as for a rural resident and for a city-dweller. For that reason, a diversity of experience assures that the Court does not operate in a bubble constricted by understandings constrained by experiential myopia.  

            Beyond her sterling credentials that match or exceed the current justices’ academic qualifications and legal experiences, Judge Jackson also brings a host of experiences that diverge from the current membership. She speaks the language of law that the justices speak, but she will also bring to the justices’ conference new perspectives that will enrich the discussion and enhance their collective decision-making. When critics question whether she is the best possible nominee, they seek to employ non-existent criteria that miss the mark and hide their biases. The Senate should confirm Judge Jackson.

Appellate Oral Argument Tips

Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.

This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.

Below are several tips that attorneys should consider when preparing for an appellate oral argument.

1.    Begin by addressing the weaknesses in your argument.

Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.

Appellate judges aren’t stupid.

They know the law.

They know the record.

And they know what your strongest arguments are – and they probably don’t care.

Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.

For example, in Maryland v. King, where the Court considered  whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:

[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.

Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)

Justice Scalia: That proves absolutely nothing.

[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.

Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.[1]

The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.

The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.

Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value. 

2.    Appellate courts care about their institutional legitimacy and your argument should reflect that reality.

The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.

That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.

Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.

3.    The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.

When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.

But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.

That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.

To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.

For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).

4.    Know who your friends are and target the swing justices.

Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.

Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.

To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.

5.    Be conversational and relatable, not confrontational and rigid.

Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.

That approach is a mistake. An oral argument should be a conversation, not a confrontation.

Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.

Judges – like all people – may be more likely to agree with a litigant that they like.

Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.

6.    Think of the one thing that you want to say – and say it in a way that the judges will not forget.

This needs no explanation.

Watch Matthew McConaughey’s closing argument in A Time to Kill.

 

[1] Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).

The Value in "Low-Value" Speech

Last week, another contributor to this blog, Adam Lamparello, wrote a purposefully provocative piece, arguing that low-value speech that causes emotional distress should be without First Amendment protection. By prearrangement, this post responds to it.

As I thought about my response, I recalled a television appearance I made the day before the argument in Forsyth Cnty. v. Nationalist Movement.[1] I was asked to discuss the issues in the case, as was the attorney who would argue the case for the Nationalist Movement, the white supremacist group he had founded. He predictably used the platform to spout his “philosophy,” but did little to explain his planned argument.[2]

I vividly recall that when I asked to respond to his offensive statements, I explained that even a person as despicable as he was fell within the First Amendment's protection, though not based on any belief that the views he expressed had inherent value. In supporting free speech, I was not supporting his detestable views; I was supporting the Bill of Rights. Our obligation was to use our own free-speech rights to denounce him and his views, rather than silence them. In this way, the First Amendment serves as a safety valve. Doing so prevents those opinions from existing only underground, lulling us into complacency only to emerge more virulently and unexpectedly. It also allows us to employ counter-speech to organize against it. The facts that gave rise to Forsyth Cnty. supply a useful example.

The county sits 30 miles northeast of Atlanta. In 1912, more than 1,000 Black residents of the county were driven from it after one was lynched on accusations of rape and murder of a white woman. By 1987, the county remained 99 percent white. It was in that year that civil rights activist Hosea Williams led a “March Against Fear and Intimidation” by 90 demonstrators. They were met by 400 counterdemonstrators from the KKK and the local affiliate of the Nationalist Movement and greeted with thrown rocks, bottles, and racial slurs that quickly brought the march to an end. Undeterred, Williams returned the following weekend. This time, he brought 20,000 fellow marchers, along with civil rights leaders, Senators, presidential candidates, and an Assistant United States Attorney General. It was the “largest civil rights demonstration in the South since the 1960s.”[3] The march was protected by “3,000 state and local police and National Guardsmen,” rather than the small local police force that had been overwhelmed at the first march. The larger law enforcement contingent largely checked the 1,000 counterdemonstrators.[4]

The nub, however, was that police protection produced a bill of $670,000, though the county only paid a small part of it. The county then enacted an ordinance that imposed a variable fee on future marchers that would be set in the county’s discretion each time. A later ordinance capped the fee at $1,000 per day.[5]

In January 1989, the Nationalist Movement planned their own demonstration to voice opposition to the Martin Luther King, Jr. holiday, and Forsyth County imposed a $100 permit fee to cover the county administrator’s time in issuing the permit, but not for potential police protection. In the challenge to that fee, the Supreme Court, 5-4, held that the fee was an unconstitutional content-based burden on free speech with the fee set by the officials’ estimate of “the public’s reaction to the speech.”[6]

Proponents of treating certain speech as low-value or subject to regulation because of its emotional impact often assume that such regulations will protect the people and causes they like and only hurt speech that they condemn. History teaches otherwise. All who would change the status quo create discomfort and perhaps even cause emotional distress to those aligned with entrenched powers. Last week, in a New York Times op-ed in support of Judge Ketanji Brown Jackson’s nomination to the Supreme Court, Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, wrote: “This is how change begins — by destabilizing comfortable narratives, with the inclusion of those who have not been seen.”[7] In fact, free speech has its most urgent application when the ideas expressed do not have majority approval.

One need only look at the accusations made in many parts of the country that anything that smacks of racial justice or history constitutes critical race theory and must be suppressed to prevent white schoolchildren from feeling inferior. To that end, Tennessee enacted a law in June that prohibits lesson plans that cause a student to “feel discomfort, guilt, anguish, or another form of psychological distress solely because of the individual’s race or sex.”[8] The blatantly unconstitutional law was not enacted to protect minority students from emotional distress, but to protect the white majority from confronting racism. It, like any carve-out of an exception for low-value, emotionally distressing speech, simply gives those in power the authority to suppress dissent -- and, too often, progress.

[1] 505 U.S. 123 (1992).

[2] It turned out that his philosophy was his argument. Before the Supreme Court, he spoke about “the shiny sword of reason that ousts tyranny” and announced that he hoped his tombstone would read: “The road not taken, but not the speech not given.” Chief Justice Rehnquist responded, “How about the argument not made?” Tony Mauro, “Avowed Racist Flies Solo in Speech Case,” Legal Times, Apr. 13, 1992.

[3] Forsyth Cnty., 505 U.S. at 125-26.

[4] Id. at 126.

[5] Id. at 126-27.

[6] Id. at 134.

[7] Sherrilyn A. Ifill, “Who’s Afraid of Ketanji Brown Jackson?,” N.Y. Times (Mar. 2, 2022), available at  https://nyti.ms/3tAOkaC.

[8] Tenn. Code § 49-6-1019(a)(6).

The First Amendment and Low-Value Speech That Causes Substantial Emotional Distress

“God Hates Fags.”[1]

“Fags Doom Nations.”[2]

“Fag Troops.”[3]

“God hates you.”[4]

Should the First Amendment be interpreted to protect this nonsense?

No.

Some speech is so despicable – and so injurious – that it should not receive First Amendment protection. Indeed, individuals should be permitted to recover damages for emotional distress where speech:

• Intentionally targets a private and in some cases, a public figure;
• Has no social value (e.g., “God Hates Fags”); and
• Causes severe emotional distress.

Put simply, the First Amendment should not be construed to allow individuals to hurl vicious verbal assaults at citizens with impunity, particularly where such speech causes substantial harm.

***

By way of background, the First Amendment provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”[5]

Of course, protecting speech is essential to ensuring liberty, autonomy, and decentralized governance. Furthermore, the right to free expression promotes a “marketplace of ideas” that exposes citizens to diverse perspectives on matters of public and political significance, which is vital to ensuring an informed citizenry and a healthy democracy.

For that reason, offensive, distasteful, and unpopular speech – particularly on matters of public concern – should receive the strongest First Amendment protection. In Cohen v. California, for example, the United States Supreme Court correctly held that the First Amendment prohibited the prosecution of an individual who entered a courthouse wearing a shirt stating, “Fuck the Draft.”[6] Additionally, in Texas v. Johnson, the Court rightly held that the First Amendment protected flag burning.[7] Also, in Hustler v. Falwell, the Court held that the First Amendment protected the satirical depiction of a preacher having sex with his mother in an outhouse.[8] Likewise, in Matal v. Tam, the Court held that there is no hate speech exception to the First Amendment.[9] And in Snyder v. Phelps, the Court held that members of the Westboro Baptist Church had a  First Amendment right to display signs stating, among other things, “God Hates Fags” and “Thank God for 9/11” outside of a church where a family was grieving the loss of their son.[10] In most of these cases, the Court’s decisions rightfully affirmed that, in a free and democratic society, citizens must tolerate speech – and expressive conduct – that is offensive and unpopular. Otherwise, the right to speech would allow the government to censor speech that it subjectively deemed undesirable. That result would be to chill speech and render the First Amendment meaningless.  

But is there no limit on what citizens can say or express?

To be sure, the Court has placed some limits on the right to free speech. For example, in Miller v. California, the Court held that the First Amendment did not protect obscenity, which is defined as speech that had no “literary, scientific, or artistic value,” and that appeals to the “prurient (sexual) interest.”[11] One can legitimately question why speech must appeal to sexual matters to be obscene.  Also, in Brandenburg v. Ohio, the Court held that the First Amendment did not protect speech that incited others to commit imminent and unlawful violence.[12] And in numerous cases, including City of Renton v. Playtime Theatres, the Court held that states could place reasonable time, place, and manner restrictions on speech.[13]

But outside of these limited categories, should the First Amendment protect speech regardless of how vile or harmful?

In other words, is “Fuck the Draft” the same as “God Hates Fags?” And should the First Amendment permit a magazine to publish a satire of a preacher having sex with his mother in an outhouse?

No.

And should the First Amendment be construed to permit all speech, no matter how vile and harmful, if it targets private individuals, has no social value, and causes severe emotional distress?

No.

Put simply, Snyder v. Phelps was wrongly decided.

***

As stated above, in Snyder, the Court, in an 8-1 decision, held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a church where a family was mourning the loss of their son in the Iraq War with signs that said, among other things “God Hates Fags” and “Thank God for 9/11.” The Court’s decision emphasized, among other things, that the First Amendment requires that citizens tolerate offensive speech such as that expressed by the Westboro Baptist Church.

The Court got it wrong.

When, as in Snyder, speakers target private individuals with despicable speech that has no social value and that causes severe emotional distress, those individuals should be permitted to recover damages for the intentional infliction of emotional distress.[14]  

Importantly, Justice Samuel Alito agrees and, in a persuasive dissent, explained that the First Amendment’s underlying purposes are not frustrated by allowing individuals to sue for emotional distress resulting from zero-value – and harmful – speech:  

Our profound national commitment to free and open debate is not a license for the vicious verbal assault that occurred in this case. He [Petitioner] is simply a parent whose son, Marine Lance Corporal Matthew Snyder, was killed in Iraq. Mr. Snyder wanted what is surely the right of any parent who experiences such an incalculable loss: to bury his son in peace. But respondents, members of the Westboro Baptist Church, deprived him of that elementary right … They appeared at the church, approached as closely as they could without trespassing, and launched a malevolent verbal attack on Matthew and his family at a time of acute emotional vulnerability. As a result, Albert Snyder suffered severe and lasting emotional injury. ¹ The Court now holds that the First Amendment protected respondents’ right to brutalize Mr. Snyder. I cannot agree.[15]

I cannot agree either.

Moreover, as Justice Alito noted, the Westboro Baptist Church had alternative avenues by which to disseminate their hateful views. As Justice Alito stated:

Respondents and other members of their church … have almost limitless opportunities to express their views. They may write and distribute books, articles, and other texts; they may create and disseminate video and audio recordings; they may circulate petitions; they may speak to individuals and groups in public forums and in any private venue that wishes to accommodate them; they may picket peacefully in countless locations; they may appear on television and speak on the radio; they may post messages on the Internet and send out e-mails. And they may express their views in terms that are “uninhibited,” “vehement,” and “caustic.” It does not follow, however, that they may intentionally inflict severe emotional injury on private persons at a time of intense emotional sensitivity by launching vicious verbal attacks that make no contribution to public debate.[16]

Perhaps most importantly, Justice Alito recognized that speech can – and does – cause substantial injury, and when it does, the First Amendment should not bar recovery for the intentional infliction of emotional distress:

This Court has recognized that words may “by their very utterance inflict injury” and that the First Amendment does not shield utterances that form “no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”  When grave injury is intentionally inflicted by means of an attack like the one at issue here, the First Amendment should not interfere with recovery.[17]

Justice Alito got it right. There are numerous cases where young people, after vicious verbal attacks in-person and online, committed suicide.[18] There are countless cases of “revenge porn,” in which women discover their intimate photographs posted on the internet by a disgruntled ex-partner.[19]

The First Amendment should not be construed to protect this nonsense the law should not turn a blind eye to the harm it causes.

To be clear, this does not mean that state governments should be permitted to criminalize such speech. It does mean, however, that private, and, in some cases, public figures should be allowed to pursue a claim for the intentional infliction of emotional distress where they are intentionally targeted with speech of no social value that causes severe and lasting harm.

This argument should not be construed to support a hate speech exception to the First Amendment. After all, how would one define ‘hate speech?” Such an exception, due to its subjectivity and arbitrariness, would undermine significantly the First Amendment’s core purpose of promoting a marketplace of ideas in which unpopular, distasteful, and offensive ideas are tolerated.

But there is a limit.

As Justice Alito emphasized in Snyder, some speech is of such low value – and so harmful – that it supports a civil suit for the intentional infliction of emotional distress.  Statements such as “God Hates Fags” and “Fags Doom Nations” have no literary, scientific, or artistic value and, although not sexual, can be every bit as obscene as the most revolting sexual images. The speech at issue in Snyder and Hustler had no social value. It was utter garbage and contributed nothing to public debate or the “marketplace of ideas.” But it did cause severe – and lasting – emotional distress. Thus, in some instances, there should be a civil remedy for victims who are intentionally targeted with such speech.

Of course, some will make the slippery slope argument, arguing that any restrictions on speech other than the narrow categories already delineated will result in a chilling effect and give the government the power to restrict any speech that it deems offensive or unpopular. This argument is without merit because it assumes without any evidence that any failure to fully protect even the most injurious speech – such as “God Hates Fags” – will inevitably lead to a ban on other forms of traditionally protected speech. That view essentially prohibits restricting any speech no matter how valueless and no matter how injurious, and ignores the harm that such speech can – and does – cause.  

Ultimately, free speech is an essential component of ensuring liberty and an informed democracy. Accordingly, unpopular, offensive, and distasteful speech must be welcome in a society that values diversity. But that is not a “license for … vicious verbal assault[s]” upon citizens that serves no purpose other than to degrade and demean people, and that causes substantial and often irreparable harm, including suicide.[20]

 

[1] 562 U.S. 443 (2011).

[2] Id.

[3] Id.

[4] Id.

[5] U.S. Const., Amend. I.

[6] 403 U.S. 15 (1971).

[7] 491 U.S. 397 (1989).

[8] 485 U.S. 46 (1987).

[9] 137 S. Ct. 1744 (2016).

[10] 562 U.S. 443 (2011).

[11] 413 U.S. 15 (1973).

[12] 395 U.S. 444 (1969).

[13]  475 U.S. 41 (1986).

[14] See Adam Lamparello, ‘God Hates Fags’ Is Not the Same as ‘Fuck the Draft’: Introducing the Non-Sexual Obscenity Doctrine, 84 UMKC L. Rev. 61 (2015).

[15] 562 U.S. 443 (Alito, J. dissenting) (emphasis added).

[16] Id. (emphasis added).

[17] Id. (emphasis added) (quoting Chaplinsky v. New Hampshire, 315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut, 310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).

[18] See, e.g., Jane E. Allen, Rutgers Suicide: Internet Humiliation Trauma for Teen (September 30, 2010), available at: Rutgers Suicide: Internet Humiliation Trauma for Teen - ABC News (go.com).

[19] See, e.g., Mudasir Kamal and William J. Newman, Revenge Pornography: Mental Health Implications and Related Legislation (September 2016), available at: Revenge Pornography: Mental Health Implications and Related Legislation | Journal of the American Academy of Psychiatry and the Law (jaapl.org).

[20] See, e.g., Claypool Law Firm, Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (Dec. 18, 2017), available at:  Middle School Student Commits Suicide Following School’s Failure to Stop Bullying (claypoollawfirm.com).

Writing Truly Helpful Statements of the Case, with Assistance from Bryan Garner and Justice Rutledge

In my LRW II classes last week, we reviewed persuasive Statement of Fact headings.  I repeated my usual points on making the headings a bit catchy, but completely honest and logical.  I reminded the students of all the notes we have showing busy judges sometimes only get a chance to skim briefs’ tables of contents, and instructed them to always include Statement of the Case headings on their Tables of Contents.  See generally https://legalblogwatch.typepad.com/legal_blog_watch/2012/02/federal-judges-want-you-to-spare-them-the-rhetoric-and-get-to-the-point.html (noting a Bankruptcy Court judge’s complaint judges “don’t have time for rhetoric” as they are “really, really busy”). 

In sum, I suggested students use fact headings to tell a logically-organized and persuasive story consistent with their overall theory of the case, and to only include key facts and truly needed background facts.

Then, after class, I happened to read Bryan Garner’s February 1, 2022 ABA Journal piece, Bryan Garner shares brief-writing advice from the late Supreme Court Justice Wiley B. Rutledge,

https://www.abajournal.com/magazine/article/bryan-garner-shares-brief-writing-advice-from-the-late-supreme-court-justice-wiley-b-rutledge.  As Garner reminded readers he:  “occasionally interview[s] long-dead authors.  Another name for it is active reading.  Actually, we do it all the time—taking an author and interrogating the text for all the wisdom it might yield.”  In Garner’s February piece, he interviewed U.S. Supreme Court Justice Wiley B. Rutledge (1894–1949), who also served as a law school dean before sitting on the Court.  Id.  I highly recommend reading Garner’s whole article, but today, I am focusing on the statement of facts points.

Garner asked Justice Rutledge if he was “bothered when the opposing lawyers have widely divergent statements of the facts.”  The Justice’s hypothetical reply is especially helpful for all appellate writers to remember:  “The bulk of the evidence is not controversial” and thus counsel “can freely and truly summarize.”  Id.  As I told my students, a careful summary where parties agree can sometimes be helpful.  Garner notes Justice Rutledge might say: 

This [summary] often, and especially when well done, may be the most helpful, if not also the most important part of the brief.  It cuts the brush away from the forest; it lifts the judge’s vision over the foothills to the mountains.  It enables [the court] to read the record with an eye to the important things, intelligently, in true perspective.

Id.    

 In a similar vein, I often quote to my students a wise law firm founder and mentor, who regularly reminds young associates, “all we really have in law is our good name.”  Bryan Garner notes how this saying can be especially true when we present facts, as any murky or possibly untrue assertion can quickly convince the court our entire brief is suspect.  Id.  Garner explained Justice Rutledge’s point on dealing with adverse facts this way:  “Few things add strength to an argument as does candid and full admission” which “[w]hen made, judges know that the lawyer is worthy of full confidence, and every sentence he [or she] utters or writes carries force from the very fact that [counsel] makes it.”  Id. 

Finally, on the dreaded topic of citation, Justice Rutledge reminds us our fact sections must have careful and accurate citations, as a “great time-saver for judges” and a way to increase credibility.  Id.  Garner concludes his article asking for the Justice’s concluding thoughts.  The Justice’s hypothetical reply is:  “Make your briefs clear, concise, honest, balanced, buttressed, convincing and interesting. The last is not least. A dull brief may be good law. An interesting one will make the judge aware of this.”  One great way to add interest is to give your court clear, concise, and interesting facts.

I wish you happy drafting.

Disparity's Relationship to Discrimination

Anyone with a conscience (or a pulse) knows that discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity, is abhorrent and has no place in a civilized society. Indeed, inequality of opportunity and access is antithetical to the very freedom, liberty, and dignity that the Constitution requires and that every human being deserves.  

But disparate outcomes among groups do not always reflect discrimination.

In his book Discrimination and Disparities, Thomas Sowell, a senior fellow at Stanford University’s Hoover Institution, argues persuasively that disparate outcomes are often attributable to non-discriminatory factors. Indeed, as Sowell notes, even in the absence of discrimination, disparate outcomes among groups nonetheless result, thus undermining the conclusion that disparity reflects discrimination.[1]

I.    Disparity does not equal discrimination.

Disparities among groups do not always reflect discrimination because: (1) in many contexts, the disparity is attributable to other factors; (2) disparities exist within groups for reasons unrelated to discrimination; (3) disparity still results when objective and non-discriminatory measures are used to evaluate performance; and (4) disparities exist because individuals and groups self-select into different professions and make different life choices.

    A.    In many areas, disparity cannot be attributed to discrimination.

Disparities exist everywhere. For example:

The majority of law professors identify as liberal, and conservatives comprise a distinct minority on most law school faculties.[2]

The majority of legal writing professors are female.[3]

The overwhelming majority of individuals convicted of violent crimes are men.[4]

The majority of nurses are female.[5]

The majority of professional football and basketball players are African-American.[6]

The majority of professional baseball players are white.[7]

The majority of methamphetamine users are white.[8]

Let’s analyze just a few of these examples. Do these facts suggest that the National Football League and National Basketball Association are discriminating against whites? Of course not. Do they suggest that law enforcement officers are racially biased against white methamphetamine users? No. A more plausible explanation is that whites predominantly use and sell methamphetamines. Do they suggest that law schools discriminate against conservative faculty candidates? According to one study, the answer might be yes.[9] And this illustrates the broader point: academics, courts, and policymakers should distinguish between those instances where disparity results from discrimination and those where it does not. In other words, they should use empirical data to exclude other possible causes of disparate outcomes rather than assuming that such outcomes reflect discrimination.

Put simply, identifying a disparity in a particular context proves nothing.

    B.    Disparities exist within groups based on cultural and other factors unrelated to discrimination.

The disparity narrative disregards the fact that disparate outcomes occur within groups. For example, a study of individuals with an IQ in the top 1% discovered widely disparate levels of achievement within this group.[10] What did social scientists identify as the reason for the disparity?

The quality of a person’s family upbringing.

Likewise, income disparities exist within racial groups for reasons that discrimination cannot explain. Sowell explains as follows:

[I]n 2012 the US poverty rate for Jamaicans was reported as 14.8 percent, Ethiopians 19.7 percent, and Nigerians 12.8 percent. All the rates were significantly lower than the rate of 28 percent for blacks as a whole.[11]

Additionally, “these three ancestry groups had significantly lower rates of poverty and higher median incomes than the Hispanic population.” Sowell further states:

How were these people of color, often without the benefit of growing up in America, able to clear the “barriers” of a discriminatory “system” far better than other people of color? Culture unquestionably plays a role in income and poverty disparities, even in situations comparing people of color where “discrimination” can be ruled out.”[12]

Furthermore, regarding income inequality, “examining the average age differences among different demographics can explain away a portion of the income inequality that intellectuals proclaim exists due to discrimination.”[13] Indeed, “races and nationalities with older average ages would naturally boast higher average incomes due to being more experienced.”[14]

In other words, not all – or even most – disparities are reducible to racism

    C.    When objective and non-discriminatory measures are used, disparate outcomes still result.

In many instances where objective and non-discriminatory measures are used to evaluate performance, disparity still results. For example, from 2001 to 2012, the home run leader in the American League had a Hispanic surname.[15] From 2008-2014, the National Spelling Bee winner was a child whose parents were of Indian ancestry.[16] In 2012, sixty-eight of the top 100 marathon runners were Kenyan. The best-selling brands of beer are made by people of German ancestry.[17] And although African Americans are overrepresented in the National Football League, an overwhelming majority of NFL kickers are white.[18]

Does this mean that the NFL is discriminating against African American kickers? Of course not.

    D.    Disparities result because individuals self-select into different professions.

Within and among groups, disparities result because individuals self-select into different professions and, more broadly, make different life choices.[19] As Sowell explains:

There are many decisions wholly within the discretion of those concerned, where discrimination by others is not a factor—the choice of television programs to watch, opinions to express to poll takers, or the age at which to marry, for example. All these show pronounced patterns that differ from group to group.[20]

To be sure, “[a]mong the many reasons for gross disparities in many fields, and at different income levels, is that human beings differ in what they want to do, quite aside from any differences in what they are capable of doing, or what others permit them to do.”[21] 

Simply put, in many instances, disparate outcomes have nothing to do with discrimination.

II.    The solution – use empirical data to exclude non-discriminatory causes of disparity.

As stated above, discrimination based on, among other things, race, ethnicity, religion, sexual orientation, gender, or gender identity is reprehensible. But that doesn’t mean that disparate outcomes always reflect discrimination.

As Sowell notes, some disparities result from non-discriminatory factors and thus have no relationship to inequality or injustice. As such, scholars and policymakers should avoid assuming that disparity reflects discrimination. Instead, they should rely on empirical data to exclude other causal factors, thus more firmly supporting their arguments. In so doing, scholars will likely discover that some disparities reflect discrimination and some do not. This is the first step toward embracing an intellectually honest and fact-driven approach to solving the problems affecting the United States and to improving the nation’s discourse on matters of public policy.

[1] See Thomas Sowell, Discrimination and Disparities (Basic Books, 2019), available at: Amazon.com: Discrimination and Disparities: 9781541645639: Sowell, Thomas: Books; see also Coleman Hughes, The Empirical Problems With Systemic Racism, available at: Coleman Hughes: The Empirical Problems with Systemic Racism - YouTube

[2] See Bonica, et al., The Legal Academy’s Ideological Uniformity (2017) available at: The Legal Academy’s Ideological Uniformity (harvard.edu)

[3] See Legal Writing Professor Demographics and Statistics [2022]: Number Of Legal Writing Professors In The US (zippia.com)

[4] See Gender and Crime, Differences between Male and Female Offending Patterns, available at: Gender and Crime - Differences Between Male And Female Offending Patterns - Categories, Women, Crimes, and Arrests - JRank Articles

[5] See Registered Nurse Demographics and Statistics (2022), available at:  Registered Nurse Demographics and Statistics [2022]: Number Of Registered Nurses In The US (zippia.com)

[6] See 18 Fascinating NFL Demographics, available at: 18 Fascinating NFL Player Demographics - BrandonGaille.com; NBA players by ethnicity 2020 | Statista

[7]  See Professional  Baseball Statistics By Gender, available at: Professional Baseball Player Demographics and Statistics [2022]: Number Of Professional Baseball Players In The US (zippia.com)

[8] trends of meth use by ethnicity and gender by www.drug-rehabs.org

[9] See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. ILL. L. REV. ONLINE 178, 179 (2020) (emphasis added)

[10] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

[11] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[12] See id.

[13] See id.

[14] See id.

[15] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[16] See id.

[17] See id.

[18] See id.

[19] See Bradley Thomas, Statistical Disparities Among Groups Are Not Proof of Discrimination, (May 21, 2019), available at: Statistical Disparities Among Groups Are Not Proof of Discrimination - Foundation for Economic Education (fee.org)

[20] See id.

[21] See Thomas Sowell, Disparate Outcomes Do Not Imply Discrimination (October 5, 2015), available at: Disparate Outcomes Do Not Imply Discrimination | National Review

[22] See Discrimination and Disparities With Thomas Sowell, available at: Discrimination and Disparities with Thomas Sowell - YouTube

Unconventional Writing Tips

The best writers know when to break the rules. They know when to forget everything they learned in legal writing and disregard conventional grammar and style rules. Simply put, they know when to be unique and original. Below are ten unconventional writing tips that can enhance the quality and persuasive value of a brief (or any type of writing) and highlight your authentic voice as a writer.

1.    Don’t write.

The best way to write an excellent brief, story, or script is to not write at all. Yes, you heard that correctly. Stay away from your computer. Avoid the temptation to write a revolting and blood-pressure-raising first draft simply because you want to “get something on paper.” That “something” will be the equivalent of nothing. Instead, spend time reading great writing.

Most importantly, think before you write. Brainstorm. Carry a small notepad with you and, among other things, write down ideas as they come to you and create an outline of your legal arguments. In so doing, be sure to reflect on your arguments and the likely counterarguments you will face. And remember that excellent thinking leads to excellent writing.

2.    Don’t let anyone read your first draft – or your final draft.

Some people believe that, after spending many hours on, for example, writing and rewriting an appellate brief, they cannot “see the forest for the trees” and need a set of “fresh eyes” to critique their work. The best writers know that this belief is often mistaken. Allowing others to review your writing can often do more harm than good; many suggested revisions reflect differences in style, not quality.

Additionally, many comments will be irrelevant or unhelpful, such as “did you cite the correct cases and check to make sure that they are still good law?” or “are there other counterarguments that you should consider?”

Yeah, whatever. Go away.

Others will offer annoying comments, such as “you should consider using the Oxford comma, and I also saw areas where maybe an em dash would have been appropriate” or “sentences should generally be no longer than twenty-five words but on page twenty, one of your sentences had twenty-seven words,” or “at least for me when I see a sentence with the passive voice, I hit the delete button immediately,”

Yes, and your comments about my writing have just been deleted.

The worst are the ones who offer ambiguous comments, such as “have you thought of restructuring the argument section?” or “in some instances, I thought your arguments were repetitive, but I could see where that might be effective,” or “in my opinion, the question presented doesn’t work because it seemed a bit wordy to me. But if you like it, keep it.”

None of this is helpful. If anything, it could cause you to overthink and doubt yourself. Worse, it could cause you to make changes that worsen your brief and weaken your voice.[1]

The moral of the story is that sometimes, too many cooks will spoil the broth. But if, for whatever reason, you must have someone review your writing, make sure you choose the reviewer carefully. In so doing, remember that one aspect of great writing is developing your unique style and voice as a writer, and not letting that style be compromised by others.

3. “Write drunk. Edit sober.”[2]

To be clear, this does not mean that you should consume a handle of Tito’s vodka when writing a first draft (a couple of glasses of Duckhorn sauvignon blanc should suffice). Rather, it means that you should be in a mindset where you can think freely and creatively without inhibition or reservation, and where you can coherently and concisely communicate your ideas.

If you aren’t in this mindset, your first draft may be gobbledygook. It may turn some people to stone. It may evoke images of the burning gym in the 1976 movie Carrie after Carrie finished exacting her revenge at the prom. And it may require you to delete everything on your computer screen and write another first draft. That may make you open that handle of Tito’s vodka, which is not advisable.

4.    Invent words.

Don’t be constrained by dictionaries. And don’t confine yourself to conventional or boring words. Rather, invent words – most commonly eponyms – that convey important ideas.

Think Obamacare.

Think Bushisms.

Think Californication.

What do these words do? The enhance the persuasive value of your argument. Indeed, a single invented word can implicitly convey arguments that so many attorneys feel the need to express explicitly. Think about it: when you hear Bushisms, it immediately brings to mind words that the former president invented, such as strategery. We all know the point that makes.

5.    Sometimes, throw IRAC/CRAC in the proverbial garbage.

In law school, particularly legal writing classes, students are taught to use the IRAC/CRAC (or CREAC) structure when drafting a brief. This is excellent advice and certainly helpful in many contexts.

Sometimes, however, the IRAC/CRAC formula can be, well, too formulaic. And it can undermine the persuasiveness of your legal analysis. This is particularly true where the facts are favorable to you and suggest strongly a ruling in your favor.

Consider the following examples of an introductory statement in a brief in a case where a defendant shot and killed another person with an AR-15 after the person, who was one foot shorter than the defendant, shoved the defendant and immediately thereafter began walking away. The defendant claimed that he was acting in self-defense.

Based on the relevant law and facts, the defendant’s self-defense claim lacks merit. It is well settled that a self-defense claim requires defendants to demonstrate that they subjectively believed that they were in fear of imminent grave bodily harm or death. Additionally, that belief must be objectively reasonable, meaning that a reasonable person would have feared that grave bodily harm or death was imminent. As such, disproportionate responses to a fear of harm do not constitute self-defense. Lastly, the claim of imperfect self-defense is not recognized in this jurisdiction. In this case, the defendant cannot…

Blah, blah, blah.

Why should a court have to endure this paragraph when: (1) the law of self-defense is well-settled in this jurisdiction, and (2) the facts show indisputably that the self-defense claim is utter nonsense? It shouldn’t. Blame CRAC. Then toss it out the window, get to the point, and write this:

The defendant is 6’7”. The victim was 5’7”. The victim shoved the defendant to the ground and immediately walked away, posing no direct or indirect threat to the defendant. The defendant could have – and should have – walked away too. Instead, the defendant decided to retaliate against the victim. Not by contacting law enforcement. Not by shoving the victim. Not by punching the victim. But by retrieving a semi-automatic weapon – an AR-15 – and shooting the victim twice in the head, killing him instantly. Now, the defendant claims that he was acting in self-defense. But that defense requires the defendant to show that the deadly force he used was objectively reasonable – and thus proportionate – to a threat of grave bodily harm or death. That threat never existed – except when the defendant decided to kill the victim with an AR-15. End of story.

Of course, this isn’t a perfect example, but you get the point. Sometimes, start with the facts. Then, include a very brief statement of the law. In some instances, it is more persuasive than adhering to a conventional formula.

6.    If it sounds good to the ear, write it and keep it.

When drafting a brief, a book, or a movie script, the worst thing that you can do is adhere unquestionably to formulaic writing or comply rigidly with strict grammar and style rules such as:

Don’t use passive voice.

Don’t end sentences with a preposition.

Don’t mix verb tenses.

This approach essentially turns you into a robot, not a writer. It means you aren’t thinking creatively based on the specific facts of your case – or thinking at all. This is not to say, of course, that grammar and style rules don’t matter. In many instances, they enhance the quality and the readability of your brief. The most important rules, however, are these:

Use common sense.

Trust your judgment.

Rely on your instincts.

After all, you want the reader to see you as a relatable and likable human being and, sometimes, that means breaking the rules. But how do you know when to break the rules? It’s simple: if it sounds good to the ear, write it and keep it.  Be sure, however, that what you hear – and write – is grammatically correct.

7.    Get a little nasty sometimes.

People like those who aren’t afraid to be edgy. To be witty. To be controversial. That type of writing shows that you are authentic – and that’s a great quality to have as a writer and person. Put simply, your writing should reflect your passion and your conviction.

To be sure, getting a little nasty doesn’t mean being an unprofessional jerk. But it does mean calling out bullshit when you see it. It does mean forcefully attacking arguments (not adversaries) in a raw and unapologetic manner.

Imagine, for example, that you are representing a defendant accused of murdering his wife. The evidence is largely circumstantial and based on the testimony of two eyewitnesses. On the eve of closing arguments, the prosecution discloses to you a document summarizing a DNA test that was performed on blood found on the murder weapon six weeks before the trial started. The DNA did not match the defendant’s DNA. You immediately move for a mistrial but the court denies it after the prosecution claims that the document had been lost and was found only an hour before it was disclosed to the defense. Your client is convicted and sentenced to life in prison. You appeal.

In your appellate brief, you should dispense with the niceties and professional courtesies, and call out the bullshit.  Consider the following:

Once again, we have a prosecutor who, at the eleventh hour of a murder trial, claims the equivalent of a student alleging that ‘the dog ate my homework.’ Specifically, the prosecution stated that it somehow “lost” evidence that exonerated my client, only to “find” it after the defense had rested its case and just before the jury began deliberations. The prosecution’s excuse is about as authentic as the tooth fairy and reflects a brazen disregard for the facts, the law, and my client’s life. In short, it’s bullshit. The result is that an innocent man is in prison, and if the conviction is affirmed, this court will essentially be saying that the dog did eat the student’s homework.

Yes, this paragraph is quite strong and, some would argue, over the top. Who cares? Stop worrying so much about how the reader will react – and what the reader might prefer – and focus on expressing your authentic voice.

After all, the prosecution’s behavior suggests strongly that misconduct occurred and that an innocent man is in prison for the rest of his life. How would most people, including the defendant and his family, react to such unethical behavior? They’d be furious. Your writing should, within reason, reflect the rightful indignation that should result from that injustice.

8.    Don’t edit too much.

Some writers just can’t stop editing. They just can’t stop rethinking, rewriting, and revising their work. Most of us have encountered these types. They say things like, “Do you think we can make an argument that cease has a slightly different meaning than desist?” or “This sentence is twenty-six words and sentences should only be twenty-five words, so what word should I take out?” or “I decided to delete the revisions to the revisions to the revisions because I don’t think they convey the point clearly” or “The Supreme Court case I cited about the summary judgment standard was from four years ago. We need to find a more recent case.”

These people are so annoying and truly don’t see the forest for the trees.

The problem with excessive editing is that it rarely improves to any substantial degree the quality of a brief. Rather, it often reflects a lawyer’s insecurities and addiction to perfection, which results in devoting every possible second before a deadline to editing. It’s a waste of time. What’s more, excessive revisions can weaken the authenticity and passion of your writing.

Accordingly, don’t overthink or overwrite. Trust in yourself. Let your authentic voice and passion show and remember that the reader isn’t focused on whether your sentence is twenty-five or twenty-six words. The reader is focused on the substance and persuasiveness of your arguments.

9.    Write like a human being.

Readers form perceptions of both the quality of writing and the writer. For that reason, it’s critical to write in a style that shows you to be credible, likable, and relatable. What are some ways that you do that?

Be conversational.

Be humorous (in appropriate circumstances).

Be straightforward.

In other words, lighten up on the formalities and resist the temptation to portray yourself as a master of the verbal section on the SAT. Do not, for example, write statements like “It is axiomatic that the First Amendment protects the right to free speech.”

Huh? Have you ever heard anyone use the word axiomatic during a conversation?

Imagine if you were on a date and your date said, “It is axiomatic that we have a great connection.” Um, that would be weird. And the connection would probably be gone.

People don’t talk like that. You shouldn’t write like that.

Justice Elena Kagan is a perfect example of what it means to speak and write like a human being. Kagan’s opinions display a conversational, authentic, and relatable tone that connects with the reader. Consider the following passage from one of Kagan’s opinions:

Pretend you are financing your campaign through private donations. Would you prefer that your opponent receive a guaranteed, upfront payment of $150,000, or that he receive only $50,000, with the possibility that you mostly get to control - of collecting another $100,000 somewhere down the road? Me too. That’s the first reason the burden on speech cannot command a different result in this case than in Buckley.[3]

The key here is “me too.” It relates and develops a connection to the reader. And few can forget one of Kagan’s humorous responses during her confirmation hearing. In response to the question of where she was on Christmas day, she replied “You know, like all Jews, I was probably at a Chinese restaurant.”[4] The questioner’s response? “Great answer.”[5]

Indeed, it was.

10.    Ask questions.

Don’t be afraid to ask questions in your brief; doing so can enhance your argument’s narrative force. For example, in Obergefell v. Hodges, Chief Justice John Roberts dissented from the Court’s decision holding that the Fourteenth Amendment’s Due Process Clause encompassed a right to same-sex marriage.[6] In so doing, Roberts wrote as follows:

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”… As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are?”[7]

Roberts’ question at the end underscores his point that the Court’s decision was predicated on the justices’ policy preferences, and not on the Constitution.

So, again, don’t be afraid to ask questions or be different in other respects. Excellent writing isn’t always about checking all the boxes to ensure that you’ve followed all the rules. It’s about telling the best possible story. It’s about writing with your heart and your authentic voice. Sometimes, that means making your own rules.

 

[1] Also, remember that most people who read your writing are cognizant of your effort and investment in your work. Thus, they will likely be reluctant to offer a blunt and candid assessment of your writing for fear of hurting you.

[2] Joe Berkowitz, “Write Drunk. Edit Sober. According to Science, Ernest Hemingway Was Actually Right (Jan. 4, 2017), available at: “Write Drunk. Edit Sober.” According To Science, Ernest Hemingway Was (fastcompany.com). (Note: This quote has been wrongfully attributed to Hemingway. It was said by Peter De Vries).

[3]  Laura K. Ray, Doctrinal Conversation: Justice Kagan's Supreme Court Opinions, 89 Ind. L. J. 1, 3 (2014), available at: Doctrinal Conversation: Justice Kagan's Supreme Court Opinions (indiana.edu)

[4] Id. at 1.

[5] Id.

[6] 576 U.S. 644 (2015).

[7] Obergefell v. Hodges, Excerpts from the Dissenting Opinions, available at: decision_excerpts_from_dissents_obergefell_student.pdf (landmarkcases.org) (emphasis added)

Welcome to 2022

            Writers of blog posts and newspaper columns often can’t resist predicting what the new year might bring. And, for the most part, they are bad at this harmless exercise. I don’t claim to be better at it, but found it equally enticing to try. For appellate advocates, some predictions are easy to make. They are on a schedule. The coming six months, for example, will bring some blockbuster decisions from the Supreme Court. On its agenda for decision is the future of Roe v. Wade[1] and the legal status of abortion, state authority to limit access to guns, the validity of congressional subpoenas for documents from a former president, and a potentially far-reaching decision on whether a State can deny religious-school participation in a student aid program.

            A harder undertaking for an armchair Nostradamus is predicting the outcome of those cases, even though we have some strong clues in some instances. From the arguments, it appears that Mississippi’s 15-week limit on abortions will survive constitutional challenge.[2] The Court need not overturn Roe and Planned Parenthood v. Casey[3] entirely to reach that result, even if the result may allow those prior decisions to exist more in name than in precedential value. While Chief Justice Roberts could conceivably attempt to control the opinion by assigning it to himself and take the incremental approach he often favors to make the break with Roe less abrupt, I predict he will not be able to corral enough justices to that approach. Instead, his best hope is likely to pen a controlling plurality decision. I also predict that such an approach will not quell the political firestorm that will grow out of the decision, as well as others from the term.

            It does not take a fortune-teller to know that New York’s 1911 Sullivan law will be overturned in the gun case argued in November.[4] There, a clear majority seems likely to strike it down as incompatible with the Second Amendment. A strong concurring opinion will provide a blueprint for further challenges to state regulation of firearms, but it will not command five votes. Instead, I predict that the majority decision will look somewhat like last Term’s decision in Fulton v. City of Philadelphia,[5] which held invalidated a city program that refused to make foster-care referrals to a Catholic social service agency because its religious beliefs prevented it from considering gay couples as foster parents. The decision provided no guidance for future cases, only agreement that the hypothetical discretion the city retained to make exemptions to its policy was fatal. That part of the decision was unanimous. However, a 6-3 line-up refused to go further and overturn Employment Division v. Smith.[6] I predict a similar line-up will prevail to show a split in how far the justices are willing to go on guns, at least in this case.

            Fulton will not provide a model in this Term’s religion case on student aid. In Carson v. Makin,[7] a split decision will invalidate Maine’s program of paying secondary-school tuition at a private where no public school exists but excluding religious or sectarian schools. Though the immediate decision will affect very few students, the criteria the Court adopts is likely to expand the types of claims that can be made under the rubric of religious discrimination.

            I also predict that the Court will act with unanimity in holding that former President Trump must turn over the subpoenaed documents sought by the House committee investigating the January 6 attack on the Capitol.[8] The petition stage received expedited briefing and seems likely to be granted. The case recalls United States v. Nixon,[9] in that the Court will similarly deem it critical to speak in one voice on the issue. To get there in Nixon, however, the Court recognized “a presumptive privilege for Presidential communications” that was “fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.”[10] It was lodging the privilege in the Constitution that was new in the decision and unnecessary to its result. I predict that an equally unnecessary discourse that adopts an expansive view of executive privilege, overcome in this case, to be articulated in the forthcoming opinion that will open the door future arguments not made or applicable to this case.

            In addition, the hot-button issue of affirmative action seems destined to add to this very important term’s agenda based on a long-pending petition.[11] Here, I predict a less diffident decision, holding it to be discriminatory in a sharply split decision. Finally, the year, even if not the current Term, is likely to also see important election law decisions, as I expect the upcoming state and congressional elections to generate an unprecedented amount of litigation.

            And, if I’m wrong on any or all of this, there’s always next year! Happy new year.

 

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

[2] Dobbs v. Jackson Women’s Health Org., No. 19-1392 (Argued Dec. 1, 2021).

[3] Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833 (1992).

[4] New York State Rifle & Pistol Ass’n Inc. v. Bruen, No. 20-843 (Argued Nov. 3, 2021).

[5] Fulton v. City of Philadelphia, 141 S.Ct. 1868 (2021).

[6] Employment Div. v. Smith, 494 U.S. 872 (1990).

[7] Carson v. Makin, No. 20-1088 (Argued Dec. 8.2021).

[8] Trump v. Thompson, No. 21-932.

[9] United States v. Nixon, 418 U.S. 683 (1974).

[10] Id. at 708.

[11] Students for Fair Admissions Inc. v. President & Fellows of Harvard College, No. 20-1199.

Prediction: Dobbs v. Jackson Women’s Health

On December 1, 2021, the United States Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health, where the Court will decide the constitutionality of a law in Mississippi that bans all abortions after fifteen weeks of pregnancy.

A.    Background

By way of background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s Due Process Clause, which prevents states from depriving citizens of “life, liberty, or property … without due process of law,” encompassed the right of a woman to terminate a pregnancy.[1] In so doing, the Court adopted a trimester framework: during the first trimester, women had an unfettered right to terminate a pregnancy.[2]  During the second trimester, states could regulate abortion access, provided that such regulations were reasonable and narrowly tailored to protect a woman’s health. In the third trimester, states were permitted to ban all abortions, except those necessary to protect the mother’s health.[3]

Nearly two decades later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed the central holding in Roe but rejected the trimester approach.[4] In so doing, the Court adopted a viability framework, stating that, before viability (i.e., the state at which a fetus can survive outside the womb, which occurs at approximately twenty-four weeks of pregnancy), states could not place an undue burden on a woman’s right to have an abortion. After viability, states could regulate, and perhaps ban abortions except where necessary to protect the health and life of the mother.[5]

Not surprisingly, the Court’s decisions in Roe and Planned Parenthood were heavily criticized by both conservative and liberal scholars. Indeed, scholars noted that the Constitution’s text – particularly the Fourteenth Amendment – could not be interpreted to include a right to abortion. As Harvard Law professor Lawrence Tribe stated, “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found."[6] Likewise, late Justice Ruther Bader Ginsburg characterized Roe as “heavy-handed judicial intervention,” a matter of constitutional interpretation.[7] And Edward Lazarus, a former clerk to Justice Harry Blackmun, stated that “even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible."[8]

Regardless, in Planned Parenthood, the Court reaffirmed Roe’s central holding, and for nearly fifty years, women have had the fundamental right to access abortion services, particularly during the first trimester. Thus, principles of stare decisis, and concerns for the Court’s institutional legitimacy, counsel in favor of protecting this right even though Roe is indefensible as a matter of constitutional law. After all, if in Dobbs the Court overturns Roe, it would only be because a majority of current justices are more conservative than their predecessors. Thus, overturning Roe would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. In other words, it would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is a recipe for destroying the Court’s legitimacy.

B.    Dobbs v. Jackson Women’s Health

So how is the Court likely to rule in Dobbs? Below is a summary of the justices’ positions during oral argument, and a prediction of how the Court will ultimately rule.

Justices Elena Kagan and Sonya Sotomayor. Justices Kagan and Sotomayor appeared concerned that a decision overturning Roe would severely undermine the Court’s institutional legitimacy. It’s fair to say that Kagan and Sotomayor will vote to invalidate the Mississippi law.

Justices Clarence Thomas and Samuel Alito. Justices Thomas and Alito will almost certainly vote to overturn Roe and return the abortion debate to the states. Thomas, for example, questioned whether Roe was based on the right to privacy, liberty, or autonomy; his questions suggested that he believes (rightfully so) that there is no textual basis to support the right to abortion. Justice Alito appeared to disagree that stare decisis principles supporting upholding Roe and suggested that Roe could be overturned if the Court believed it was wrongly decided.

Justice Brett Kavanaugh. Justice Kavanaugh appeared poised to overturn Roe or limit abortion rights. For example, Kavanaugh suggested that overturning Roe and returning the abortion debate to the states would simply return the Court to a position of neutrality on the abortion issue. Given the Court’s decisions in Roe and Planned Parenthood, however, coupled with the fact that the Court’s more conservative membership, not any new constitutional or scientific developments, would arguably underlie a decision to overturn Roe, it can hardly be argued that such a decision would return the Court to a position of neutrality. Instead, it would be perceived – rightfully so – as a blatantly partisan decision. It is difficult to believe that Justice Kavanaugh is not aware of this fact. Additionally, Kavanaugh did not appear receptive to the stare decisis argument, noting that the Court had, in many instances, overturned precedent, most notably in Brown v. Board of Education (overturning Plessy v. Ferguson). What Kavanaugh failed to acknowledge, however, was that in most of these decisions, the Court’s decisions overturning precedent expanded, rather than limited, constitutional protections. Ultimately, Kavanaugh’s questions revealed a willingness to overturn Roe, although it is certainly possible that he will adopt a middle-ground approach that marginally upholds Roe but limits the time within which women may access abortion services.

Chief Justice John Roberts. Not surprisingly, Chief Justice Roberts, who is concerned primarily with preserving the Court’s institutional legitimacy rather than developing a coherent jurisprudence, sought to find a middle ground that would limit, but not eliminate, abortion rights. From his questions, it appears that Roberts supports upholding the Mississippi law yet also reaffirming (albeit limiting) the abortion right. Specifically, Roberts may reject the viability framework and hold that women have the right to access abortion services within a reasonable time after becoming pregnant.

Justice Amy Coney Barrett. Justice Barrett’s questions were quite surprising, to say the least. Most significantly, Barrett implicitly distinguished between the burdens of pregnancy and parenthood and, in so doing, minimized the burden of pregnancy. Specifically, Justice Barrett suggested that, because states have “safe haven laws” allowing women to surrender newborn babies to a medical facility without fear of criminal prosecution, a law outlawing abortion would not materially burden women’s ability to participate equally in society. This question was quite troubling because it reflected ignorance of the physical, emotional, and psychological burdens that a pregnancy engenders, including the deleterious consequences that carrying a pregnancy to term can have on a woman’s personal and professional life. Based on this question alone, it appears that Justice Barrett will uphold Mississippi’s law and, in so doing likely to either vote to overturn Roe and return the abortion issue to the states or vote to limit the time within which women may access abortions.

Justice Stephen Breyer. Justice Breyer’s questions left no doubt that he will vote to invalidate Mississippi’s law and uphold Roe and Planned Parenthood. During the oral argument, Breyer emphasized that Roe was a watershed decision and that principles of stare decisis thus required special and compelling justifications to overturn Roe, which could not be satisfied simply because the Court believed Roe was wrongly decided.

Justice Neil Gorsuch. Justice Gorsuch’s questions suggested that he was deeply skeptical of Roe and the viability framework, but that he was searching for a middle ground that would uphold yet limit the right to abortion.

Of course, the justices’ questions at oral argument are not necessarily indicative of how they might rule. In Dobbs, however, the justices’ questions appeared to reflect fairly entrenched positions regarding the right to abortion and the validity of the Court’s precedents.

Prediction: A majority (five or six votes) will vote to uphold the central holding of Roe. However, the Court will reject the viability framework and hold that women have a right to access abortion services within a reasonable time after becoming pregnant. During this time, the Court will hold that states may not unduly burden a woman’s right to access abortion services.

 

[1] 410 U.S. 113 (1973).

[2] See id.

[3] See id.

[4] 505 U.S. 833 (1992).

[5] See id.

[6] Carrie Severino, Dobbs: The Court’s Historic Moment (Part 2) (Nov. 26, 2021), available at: Dobbs: The Court’s Historic Moment (Part 2) | National Review

[7] Id.

[8] Timothy P. Carney, The Pervading Dishonest of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner