Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Saturday, January 15, 2022

Using E-Prime to Add Clarity and Save Words

    I hope you are all enjoying 2022 so far.  As you look for ways to refresh your writing in the new year, consider using E-Prime.  Christopher Wren first introduced me to E-Prime, which “’refers to a subset of English that shuns any form of the verb ‘to be.’”  See Christopher Wren, E-Prime Briefly:  A Lawyer Writes in E-Prime, Mich. Bar J. 52, http://www.michbar.org/file/barjournal/article/documents/pdf4article1187.pdf (July 2007). In other words, to write in E-Prime, a drafter should avoid most “to be” verbs.

    While removing all forms of “to be” might sound daunting, I promise you will like the resulting clear, concise writing.  For attorneys and students who struggle with word limits, tightening sentences through E-Prime will usually save words.  Moreover, E-Prime requires writers to focus on the actor without using “is” as a definition, and thus increases precision.   

    As Mark Cohen explained:  “Would you like to clarify your thinking? Construct more persuasive arguments? Improve your writing? Reduce misunderstandings? You can. Just avoid using the verb to be.”  Mark Cohen, To Be or Not to Be--Using E-Prime to Improve Thinking and Writing,  https://blogs.lawyers.com/attorney/contracts/to-be-or-not-to-be-using-e-prime-to-improve-thinking-and-writing-65489/ (Nov. 2020).   Cohen listed many examples of how E-Prime adds clarity, including by revealing the observer and forcing us to avoid “passing off our opinions as facts.”  Id. 

    Wren also provides great examples of E-Prime removing passive voice and shortening clauses.  Wren, A Lawyer Writes in E-Prime, at 52.  Here are two of Wren’s examples:

Before:   Doe’s assertion that he was prejudiced by the joint trial is without merit.

After E-Prime:  Doe’s assertion that the joint trial prejudiced him lacks merit.

Before:  Generally, an order denying a motion for reconsideration is not an appealable order where the only issues raised by the motion were disposed of by the original judgment or order.

After E-Prime:  Generally, the party moving for reconsideration may not appeal an order denying the motion if the original judgment or order disposed of the only issues raised by the motion.

Id. 

    As a legal writing professor, I especially like the way E-Prime adds clarity and removes passive voice.  Since passive voice requires “to be” verbs, students who remove those verbs will also remove passives.  Thus, I now teach my students struggling with passive writing to look for all “to be” verbs followed by other verbs in their drafts.   Students who initially did not recognize passives tell me they now write more concisely by editing out “is,” “was,” and other “be” verbs.

    In his Michigan Bar Journal article, Wren shared that moving to E-Prime was not simple, in part “[b]ecause English­language communication relies so heavily on ‘to be’ constructions, removing them from the written form struck me as requiring more time and dedication than I thought I could muster, then or in the foreseeable future.”  Id.  When Wren first told me about E-Prime, I too found the idea of rewriting so many sentences impractical.  But after letting the idea percolate for a bit, I reached the same conclusion as Wren, who explained that in the end, “E­Prime helped me improve my writing” and “made my writing clearer by forcing me to pay more attention than usual to ensuring the reader will not have to guess who did what.”  Id.

    Thus, I urge you to give E-Prime a try.  With just a bit of practice, you can employ E-Prime to remove words from and add clarity to your appellate briefs, memos, and even emails.

January 15, 2022 in Appellate Advocacy, Appellate Practice, Law School, Legal Profession, Legal Writing, Rhetoric | Permalink | Comments (0)

Sunday, January 9, 2022

Book Review: The . . . Guide to Doing Well and Being Well (Lawyers, it applies to you too!)

I finished my first[1] book of the year this weekend—The Law Student’s Guide to Doing Well and Being Well by Professor Shailini Jandial George.[2]  Although it is geared toward law students, as I will explain below, it is a book that most lawyers would greatly benefit from reading. And, with the new year upon us, what better time to focus on wellness?

Let’s face it, we are part of a stressed-out profession. The result—high levels of depression and substance abuse. For most of us, the pandemic has exacerbated our stress. I have certainly seen it in my own life, especially surrounding attempts to balance caretaking duties with work.[3]  Appellate practitioners are fortunate in that they often have more day-to-day flexibility in their schedules as opposed to litigators. My husband, for example, recently moved from a litigation position to an appellate position in part because his court schedule offered little flexibility, which added to our family’s stress.[4] And while there are other books out there on lawyer stress and wellbeing, I really appreciate, and learned much from, Professor George’s recent book.

Professor George’s book tackles the wellbeing crisis among lawyers from an interesting perspective. She focuses primarily on the topic of cognitive well-being, or maximizing the potential of one’s brain, which relates to the “do well” part of the book’s title. As she explains, there is a “deep connection between brain health and wellness,” so by “doing well” we can “be well.”

Early in the book, Professor George sets up the importance of the brain as a tool of the lawyer’s trade—a image she returns to throughout the book. Just like a musician would care for her instrument, lawyers should care for their brains. Stress, distraction, poor exercise and diet, and a lack of sleep do a number on our brain. I certainly see that in my own life.[5]  Professor George devotes a chapter to each of these topics and offers self-reflection exercises and practical tips to improve our brain health.

So much of what she wrote resonated deeply with me, but let me share just a few points that especially stood out. First, I learned a lot in the chapter on focus and distractions.  Did you know that “[t]he more we us the part of our brain activated by distractions, the more we weaken the part of our brain needed for deep focus”? Or that a group of researchers compared the cognitive ability of multi-taskers and persons who “had just smoked marijuana,” and the marijuana smokers “came out on top.” Yikes. I have certainly seen my ability to focus reduced in recent years, and I do think that the constant distractions of 24/7 connectivity and social media play a role.  Professor George offers some excellent tips for improving focus and reducing distractions. One that I might put into practice more this new year is turning off distracting notifications on my computer and putting away my phone for a period of time each week to allow me to focus on some big projects both at work and at home, which with the pandemic are increasingly blended.

Second, I was struck by the connection between diet and exercise and brain health. I know that exercise and diet are good for physical health, but I never really thought about how diet and exercise impact my ability to think.[6] Professor George offers specific foods to eat (and avoid) to improve brain health. She also describes how different types of exercise impact cognitive ability and offers different types of exercise to improve different aspects problems you might be facing. Perhaps the most personally striking statement she made was to encourage her readers to find their own “internal motivation” for exercise, noting those who exercise for the “internal benefits” tend to enjoy it more and stick with it better than those who do it for a special event.[7] Now that I have hit a certain (undisclosed) age, the thought of keeping my mind and body in great shape to keep up with my active children is very important.

The last point that I want to share is the general applicability of Professor George’s book. While she did write it for law students, nearly all of it can be directly applied to lawyers, even the self-reflection exercises. It isn’t hard to take an exercise that has you look at a successful study session and apply it instead to a successful brief writing session or trial prep.  Most of the self-reflection exercises are even more general than that (for example, the reflections on sleep, exercise, and diet are very general, with only one easily deletable reference to law school). And before you try to argue that you don’t have time for a self-care book, Professor George’s book is an easy, short read. Her style is delightful and funny, and the book weighs in at only 134 pages (excluding notes and the index).

Not only can the book be directly applied to practicing lawyers, but I believe that we have as much, if not more, to gain from it as law students. I did a good job practicing wellness as a law student. I find it harder now, with both work and family demands, to keep it up wellness practices.[8]

I am usually not one for New Year’s resolutions or a word to apply to one’s year, but reading Professor George’s book has made me think about adopting “self-care” as my 2022 theme. She ends her book with a final self-reflection that asks readers to come up with concrete things from the book that they can implement this day, this week, and this month. I still need to sit down and do that exercise (there is no quiet in my house on the weekends), but it is certainly something that I need to do. I know that focusing on self-care and “doing well” will make me a better professor, mom, and spouse.

I would encourage any reader who wants to “do well” and “be well” to pick up this book. In full disclosure, I received a complimentary copy to review, but the book is well worth its low sticker price. I would encourage law firms and law schools to make this book available to employees and students. It would also make an excellent text for a law school class or CLE on wellness.

 

[1] Technically, I have finished a few masterpieces like Jamberry, The Snowy Day, and Don’t Let the Pigeon Drive the Bus, but I usually leave those out of any end of the year book counts.

[2] I am also reading Ron Chernow’s Grant, which is amazing! But, at over 1000 meaty pages, it is going to take me some time to finish.

[3] I have two young children ages 3.5 and 1.5.

[4] When he applied for his new job late last year he calculated the last day he had been working but not in court. It was in June…of 2020.

[5] The number of times I have “lost” my cell phone since my 3.5 year old was born is pretty astounding.

[6] I do know the importance of sleep on my ability to think, but that is largely because my kids are still really young so good sleep is rare in our house.

[7] Good thing too. It seems like all the special events are canceled these days…

[8] Especially on the diet part—feeding four people, one of whom would live solely on dino nuggets (not on the approved food list) and yogurt, is a challenge.

January 9, 2022 in Appellate Practice, Books, Current Affairs, Law School, Legal Profession | Permalink | Comments (0)

Sunday, December 26, 2021

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

December 26, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, December 19, 2021

What Do You Do When a Superior Court Misses a Conflicting Precedent in a Decision that Affects Your Case?

            Assume as you conduct your legal research that you come up with a decision that says exactly what you are hoping for and that the precedent, though rarely cited, remains good law. As you write, confident that the holding puts you in a strong position to prevail, the very court you are writing for comes out with a decision that states that the court has never endorsed the very proposition your newly discovered precedent establishes. You scour the new opinion to see how they distinguished the case you found, because, even upon a re-reading, it plainly conflicts with the court’s new holding. You find it is absent from the incompatible opinion – and went uncited in the briefs the court relied upon. How do you respectfully tell the court it is wrong?

            I thought about those circumstances when I read the majority opinion in Whole Women’s Health v. Jackson,[1] the case concerning the new “Texas Heartbeat Act,” which authorizes bounties for private litigants who sue those who perform or assist in abortions. In the decision, Justice Gorsuch wrote, “[t]his Court has never recognized an unqualified right to pre-enforcement review of constitutional claims in federal court.”[2]

            The statement made me stop as I read. I realized that the key word to prevent a conflict might be “unqualified.” Still, the thrust of the statement seemed at odds with an older precedent that I have relied upon in the past and recently invoked in a brief. In England v. Louisiana State Bd. of Med. Examiners,[3] the Court wrote that “[t]here are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.” England, then, stands for the proposition that federal rights can be vindicated in federal court, and not be limited to state-court determinations, if federal jurisdictional requirements are satisfied.

            Jackson plainly focused on standing as an obstacle to subject-matter jurisdiction, at least as to some defendants. For that reason, Jackson and England can be reconciled. However, in my hypothetical version of these events, what if the Supreme Court rejected federal jurisdiction because it decided that state court disposition of the case should be sufficient and relied on the absence of a decision like England to reach that conclusion when further research would have shown there was existing precedent?

            An advocate in those circumstances will have several options to consider. First, you may conclude that a state-court decision may indeed be adequate or even preferable. State courts have authority to determine federal questions and are not bound by federal decisions by courts other than the Supreme Court.[4] Still, any federal decisions that are contrary to your position may still have persuasive value or produce some deference in state court where the federal decisions are “numerous and consistent.”[5]

            Another option is to seek to harmonize the two decisions by finding a way to argue that the new decision represented an exceptional situation, an outlier, that can coexist with or be distinguished from the general principle established by your earlier precedent.

            Another option is to argue that the older decision is good law, that the newer decision did not take it into account, and that the court should retain the older precedent. In my hypothetical version of what Jackson could have said, England not only provides an answer to the assumption made in “alternative Jackson” and thereby casts doubt on its reasoning for failing to address existing precedent as though it did not exist. Such an argument would need to point out that other doctrines depend on allowing vindication of federal rights in federal courts, so that more than one rarely cited precedent is at stake. If the court meets in panels, en banc reconsideration may be necessary.

            The bottom line, then, is that an advocate needs to explore options carefully, but still may be able to use that dusty but useful precedent that others forgot existed.

 

[1] No. 21-463, 2021 WL 5855551 (U.S. Dec. 10, 2021).

[2] Id. at *10.

[3] 375 U.S. 411, 415 (1964).

[4] Johnson v. Williams, 568 U.S. 289, 305 (2013). See also, e.g., U.S., ex rel. U.S. Att'ys ex rel. E., W. Districts of Kentucky v. Kentucky Bar Ass’n, 439 S.W.3d 136, 146 (Ky. 2014).

[5] Etcheverry v. Tri–Ag Service, Inc., 993 P.2d 366, 368 (Cal. 2000).

December 19, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, December 5, 2021

Can an Oral Advocate Learn Anything from Last Week’s Supreme Court Hearing on Abortion?

             In a New York Times column, Linda Greenhouse, who covered the Supreme Court for that venerable newspaper for many years, took off her gloves to call out some of the justices for the questions they posed during oral argument in Dobbs v. Jackson Women’s Health Org.[1] The justices’ queries suggested not only that Mississippi’s ban on abortion after 15 weeks the challenge but could, as many predicted, also overturn Roe v. Wade[2] rather than simply further whittle it down. She called many of the questions as “gaslighting” because they struck her as disingenuous for what struck her as pretextually innocent varnish that belied the justices’ hardened positions.

            Two of the exchanges Greenhouse discussed have implications for oral advocacy that bear further examination. Greenhouse gave her “gaslighting prize” to Justice Kavanaugh for asking what would be wrong if the Court took a position of neutrality on abortion, so that there could be “different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”

            Solicitor General Elizabeth Prelogar answered by noting fundamental rights are not left up to state legislatures to decide whether to honor them or not.” The question and answer suggest that the two participants in that conversation were operating from very different assumptions. Prelogar’s answer is grounded in a belief that Roe declared a fundamental constitutional right that the courts must uphold, while Justice Kavanaugh’s question presupposes that there is no basis for Prelogar’s position – or the foundations upon which Roe was built.

            The Supreme Court’s new argument format meant that that answer had to do because it was not Justice Barrett’s turn to ask questions and she moved the conversation back to another topic. Still, what’s an advocate to do when a judge asks a question that telegraphs rejection of the fundamental premise of your argument? In some arguments, a Plan B might be possible, arguing a different and potentially more acceptable alternative legal theory. A Plan B, however, did not seem possible in Dobbs.

            Another alternative is to abandon hope that the questioner could be the linchpin to victory and concentrate on others on the panel who might vote your way. However, with Justice Kavanaugh occupying the Court’s center and often considered the weather vane for a majority view, that hope seems remote. A further tactic is to go down with guns blazing, understanding that you are unlikely to prevail, but making a full-throated defense of the foundation for your argument that the judge has put into doubt. The danger of such an approach, regardless of how self-satisfying it might be, is that it often leads to a comprehensive defeat. In the end, however, questions of that sort, particularly when similar skepticism is expressed by others, likely foretell defeat.

            Interestingly, Greenhouse made the connection between Justice Kavanaugh’s questions in Dobbs about adopting a position of neutrality so States could regulate abortion as the wish to the very different attitude he and other justices seemed to display in the recent argument in New York State Rifle & Pistol Ass’n, Inc. v. Bruen.[3] There, New York advocated, on the basis of history and tradition, that states and localities had long adopted quite different approaches to gun regulations and licensing that should be allowed to continue without offending the Second Amendment. The challengers to the state licensing law argued that the Constitution did not allow as much leeway as New York had taken in the 1916 law under review.

Linkage between guns and abortion may have first been expressed by Judge J. Harvey Wilkinson III of the Fourth Circuit in a 2009 Virginia Law Review article.[4] He found that both foundational decisions, Roe and District of Columbia v. Heller, criticized and celebrated differently based on ideological preferences, suffered from the same flaws: a failure to utilize textualism to achieve a result, disregard for the complexities that the decision would engender so that much litigation would be spawned, indifference to legislative judgments, and a lack of concern for federalism. Key to his approach is a rejection of the constitutional foundations of both decisions.

In the end, the answer in both cases, Dobbs and Bruen, turn on the justices’ acceptance or rejection of the underlying rights at issue – and even the most brilliant oral argument is unlikely to transform ingrained perspectives.

A second exchange also teaches a fundamental lesson on oral argument. It exemplifies a rule that judges can do what they want, but advocates are more limited. Chief Justice Roberts asked whether viability was briefed and argued in Roe as a line of demarcation, referring to a statement in Justice Blackmun’s papers about a draft of the Roe opinion that he was struggling to produce at the time. In it, he referred to the trimester approach the opinion took as arbitrary and a form of dicta but said that so would tying the right to quickening or viability.

Chief Justice Roberts referred to the Blackmun papers as an “unfortunate source,” but nonetheless posed the question. As Greenhouse points out, the paper the chief justice cited was superseded after conversations with Justices Marshall and Powell. Justice Blackmun’s new memo after called viability justified on “logical and biological” grounds that few could argue with.

            The oral advocacy question is whether counsel, in a case where a judge did not raise the question, could fruitfully raise private papers – or remarks from the bench, for that matter – to make that type of point the chief justice did, when it is not reflected in the opinion that was issued. It is one thing to recall a point made by one of the judges during that oral argument. However, it would seem inappropriate for an advocate to use an “unfortunate source” the way the chief justice did.

 

[1] 19-1392.

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

[3] No. 20-843.

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

December 5, 2021 in Appellate Advocacy, Appellate Practice, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, November 28, 2021

Guest Post: Drug Courts: A Well-Intended but Misguided Approach to Treating Drug Addiction

This post was written by Daria Brown, a graduating senior at Georgia College and State University and the President of Georgia College's Mock Trial team. Daria will begin her first year of law school in the fall of 2022.

     Addicts don’t belong in prison. And drug courts are not a proper solution. 

     In recent years, drug courts have proliferated in many states as an alternative to incarceration for low-level drug offenders. Ostensibly predicated on a rehabilitative rather than punitive paradigm, drug courts strive to provide low-level drug offenders with treatment in lieu of incarceration. 

     But upon closer examination, drug courts aren’t the solution. In fact, they are part of the problem because they retain a punitive approach to treating drug offenders and perpetuate precisely the type of moral blameworthiness—and lack of empathy—that often plagues those who struggle with addiction, and makes it difficult, if not impossible, for such individuals to lead fully recovered lives. 

     This article proposes a new approach that advocates for a truly rehabilitative, rather than retributive model, and that attempts to replace condemnation with compassion.

     By way of background, as a response to the overwhelming number of arrests for minor drug law violations in the 1980s and 1990s, drug courts were created to serve as an alternative correctional -- and rehabilitative -- approach for defendants charged with low-level drug crimes, such as possession of marijuana. And these courts have experienced some degree of success, as many individuals -- who would have otherwise been incarcerated -- have recovered from their addictions and proceeded to live productive lives. 

     The truth, however, is that these stories are the exception, not the rule. And the inconvenient truth is that drug courts, while well-intended, are fundamentally flawed for several reasons. Most prominent among them is that drug court programs misunderstand the nature of addiction, unjustifiably retain punitive elements that reflect stigmatization of addicted offenders and fail to provide the type of treatment protocols that are essential to maximizing positive outcomes for offenders. Those flaws are detailed below, followed by principled solutions that will enhance the efficacy and fairness with which we treat individuals who struggle with addiction. 

I.    The Problems

    A.    The individuals responsible for implementing and overseeing treatment of addicted offenders have a limited understanding of addiction. 

     Prosecutors and judges are given complete discretion over who is referred to drug court and which treatment is most appropriate for each individual. For example, prosecutors are given the power to “cherry-pick” participants who they believe will be successful in the program, and often intentionally exclude precisely those defendants who need the most help, namely, those with a history of addiction.[1] As such, offenders who are in dire need of treatment often receive no treatment at all and are instead relegated to a prison where they routinely decompensate. 

     This should come as no surprise. After all, why should prosecutors and judges, who have no education and experience in addiction or psychology, have the power to determine which defendants receive treatments, and the authority to set the parameters of that treatment? It is equivalent to permitting a cardiologist to determine whether a patient suffers from bipolar disorder. If drug courts are serious about providing efficacious and meaningful treatment to those offenders who need it, they should not entrust decision-making authority with individuals who know nothing of the problem that drug courts are designed to treat.

    B.    Drug courts strive to rehabilitate yet retain a punitive model that decreases the likelihood of successful treatment.  

     You can’t scare people into recovery. It’s like a parent telling a child that, if they continue to listen to a certain type of music, they will be grounded for six months. That might work in the short term. It utterly fails in the long term. Drug courts suffer from this problem. Put differently, if you are committing to a rehabilitative model, you have to be truly committed to that model. 

     Indeed, drug courts have adopted two intrinsically contradictory models which undermine their efficacy: the disease model (rehabilitative) and the rational actor model (punitive). The disease model recognizes that drug use for addicted individuals is compulsory and not morally blameworthy. Conversely, the rational actor model states that any given decision-maker is a rational person who is able to evaluate positive and negative outcomes to make the most rational decision—and thus would attach moral culpability to drug addiction. 

     Unfortunately, drug court programs embrace these contradictory models and, in so doing, impede treatment efficacy and, ultimately, an offender’s prospects for a full recovery. To be sure, in a drug court treatment program, an individual is given treatment based on the underlying assumption that they have an addiction, but if they fail to comply with all treatment protocols, they are threatened with punishment, including incarceration. 

     These models cannot function together because the rational actor model misunderstands the nature of addiction and the road to a successful recovery. Indeed, recovery is a difficult path, where setbacks and relapses are often common. Failing to understand the turbulent road to recovery forces addicts to attempt recovery under the shadow of shame and condemnation, and when a setback occurs, treatment is withdrawn and punishment, including incarceration, implemented. This is a prescription for failure.

    C.    For the participants who could benefit most from treatment, failure is far too common.

     For individuals who struggle with addiction—and are selected to participate in a drug court program—in most cases, they must plead guilty to their charges as a condition of their referral. And if an individual fails to complete the program, a person may not amend their guilty plea. Therefore, these people lose both the opportunity to plead guilty to a lesser offense and receive support services essential to their recovery. Furthermore, in some instances, a person struggling with addiction may face a longer sentence than they otherwise would have if they hadn’t been referred to drug court in the first instance when considering the days or weeks of incarceration they endured during the program as punishment for relapse or other minor infractions plus their full sentence decided by the judge upon removal from the program. 

     This troubling dynamic begs the question: what is the purpose of drug courts? Do they reflect a principled commitment to treating the issues underlying addiction? Do they focus on maximizing positive outcomes for offenders, many of whom are from marginalized communities—which requires tolerance of and treatment for setbacks, including relapses? Or do they reflect a half-hearted attempt to provide treatment that, upon the first hint of non-compliance, leads to incarceration and cessation of all treatment efforts? In many instances, it is the latter. And that makes drug courts rehabilitative in name only and restorative in theory but not in fact. 

     These are only a few of the major issues involved in drug court programs, but they demonstrate a fundamental need for a more suitable solution to address addiction, remove stigmatization, and provide meaningful rehabilitation. Below are three policy recommendations that would improve the efficacy and fairness and drug treatment in the criminal justice system.

II.    The Solutions   

    A.    Trained psychologists and psychiatrists -- not prosecutors and judges -- should evaluate all criminal defendants who struggle with drug addiction. 

     Many drug users struggle with serious and life-threatening addictions. And many of these people also suffer from mental health issues, such as depression or bipolar disorder, potentially using illegal drugs to self-medicate. For this and other reasons, trained psychologists and psychiatrists should evaluate and recommend the proper course of treatment for all defendants charged with drug crimes. These experts, unlike prosecutors and judges, understand addiction and mental illness, and thus can recommend and implement individualized treatment that will have the highest likelihood of success. In many instances, such treatment will likely include administering medication and providing cognitive behavioral therapy, as both psychiatric and psychological treatment increase substantially the likelihood of recovery.

     Furthermore, rather than being forced to plead guilty to a charged offense, the person should be granted a continuance for their case for a period of time deemed appropriate for treatment based on a psychiatrist’s and psychologist’s recommendations. Additionally, if a person is financially disadvantaged and unable to afford the medication prescribed and treatment recommended, the government should supply aid necessary to cover these costs. After all, if the criminal justice system is truly committed to rehabilitation, then it should put its money where its mouth is—figuratively and literally. 

     Now, if an offender struggling with addiction or mental illness is charged with a violent crime, the offender’s psychiatrist and psychologist should include in their assessment what effect, if any, the underlying disorders may have on the defendant’s culpability. Furthermore, if a defendant pleads or is adjudged guilty, the court should consider these assessments as mitigating factors at the sentencing stage. This will result in truly individualized sentences that reflect moral blameworthiness more accurately and result in less severe sentences more frequently. 

     Finally, this approach would prevent prosecutors—who have no expertise in understanding or treating addiction or mental illness—from cherry-picking which defendants are worthy of treatment, from imposing arbitrary barriers to accessing such treatment, and judges from implementing treatment programs that have minimal, if any, likelihood of success. 

    B.    The stigma and discrimination directed to individuals struggling with addiction and/or mental illness must end now. 

     Individuals who struggle with addiction or mental illness should never be stigmatized or marginalized. These people are forced to carry around society’s label of “otherness,” and that “otherness” leads to being denied admission to universities, rejected from employers, and ostracized by community members. This is wrong.  Giving people a second chance reflects empathy and understanding, which is often lacking from even the most passionate advocates of social justice. 

     Indeed, when jobs and education opportunities are gate-kept from individuals simply because they have a past, it perpetuates the cycle of recidivism and relapse that is so common in cases of substance abuse. Most importantly, it dehumanizes people who have fought valiantly to overcome addiction and adversity and disregards the inherent human dignity that all humans possess. Simply stated, we need to recognize that all humans are flawed and that, ultimately, we all share similar struggles. Treating people with compassion is essential to achieving justice in a meaningful and transformative manner. 

     C.    Implement community-based solutions that place individuals in the best position to achieve permanent recovery. 

     One of the major issues with drug court programs and incarceration is the lack of support upon reentry into society, which often prevents individuals from achieving the level of financial and social stability necessary to avoid reoffending. 

     Community-based solutions can help to facilitate an individual’s transition into society and provide the support necessary to prevent relapse or recidivism. And these solutions can encompass a wide range of possibilities. For example, volunteers in the community may be granted tax breaks if they agree to mentor these individuals and help them adjust to their new life and assist their mentees in signing up for or getting involved in other community-based solutions.

     Other community-based solutions may include granting the recently recovered person a lifetime membership to a community center such as the YMCA and contracting with local businesses to offer employment to individuals after successful completion of treatment. These businesses could receive tax breaks for their cooperation and continued dedication to affording opportunities to individuals who suffered from—and overcame—addiction or mental illness. Such an approach can help individuals to achieve stability and autonomy and to take responsibility for their lives and happiness. It also reflects the belief that giving people an opportunity to start anew is a chance worth taking. 

     Ultimately, current drug court programs, while well-intentioned, are not well-designed. The problem is that addiction and mental illness are largely misunderstood, often mistreated, and unnecessarily maligned. Dispensing with these stereotypes, which result in marginalization and discrimination, is the predicate to implementing meaningful and principled treatment programs. Most importantly, recognizing that people deserve a second chance, that morality has no place in addiction discourse, and that punishment is frequently devoid of purpose, is the first step to enacting reforms that respect human dignity and that reflect empathy for those that the criminal justice system has unjustly relegated to inconvenient enigmas. 

 

[1] See Drug Policy Alliance, Drug Courts Are Not The Answer: Toward A Health-Centered Approach to Drug Use, (March 2011), available at: https://drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf 

November 28, 2021 in Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, Science | Permalink | Comments (0)

Thursday, November 25, 2021

An Appellate Practitioner Gives Thanks

To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:

  • Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
  • Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
  • The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
  • American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
  • Dashes, colons, and semi-colons. They are way undervalued and underutilized.
  • Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
  • The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
  • The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
  • The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
  • Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
  • People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
  • Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).

Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!

November 25, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (2)

Tuesday, November 23, 2021

A (Cleaned Up) Dust Up

Two recent posts on this blog ((Clean[] Up) Your House, Your Car, Your Life--Not Your Citations, Counterpoint: Use {cleaned up) or something like it) and my first post (Cleaned Up) Citations, discussed the citation parenthetical (cleaned up) and its use and potential for misuse. In a recent decision, the Eleventh Circuit cited an example of misuse that I thought it important to highlight.

Callahan v. United Network for Organ Sharing presented the question of whether documents attached to a brief were judicial records and thus, open to the public.[1] The court dropped this footnote:

A “cleaned up” parenthetical has limited utility at most. And whatever utility that innovation may have will vanish entirely if it is used to obscure relevant information. Here, UNOS quoted Advance Local Media as saying that “[u]nlike ‘materials that invoke judicial resolution of the merits,’ the public interest is not furthered by documents that are ‘irrelevant to the underlying issues,’ like ‘the overwhelming majority of documents disclosed during discovery.’ ” But the text UNOS “cleaned up” comes from an explanatory “cf.” parenthetical summarizing AbbVie Products and therefore does not constitute a holding in Advance Local Media itself. See Advance Loc. Media, 918 F.3d at 1168. Even more troubling, UNOS omitted the end of the sentence it quoted, which reiterated that “public access is presumed for materials that invoke judicial resolution of the merits.” Id. (quotations omitted).[2]

And here is the referenced portion of the appellant’s brief:

At the same time, this Court explained that “[t]he mere filing of a document does not transform it into a judicial record.” Id. at 1167. Unlike “materials that invoke judicial resolution of the merits,” the public interest is not furthered by documents that are “irrelevant to the underlying issues,” like “the overwhelming majority of documents disclosed during discovery.” Id. at 1168 (quoting AbbVie Products, 713 F.3d at 63) (cleaned up).[3]

Finally, here is the referenced passage of Advanced Local Media:

FTC v. AbbVie Prods. LLC, 713 F.3d 54, 63 (11th Cir. 2013) (explaining that “[t]he overwhelming majority of documents disclosed during discovery are likely irrelevant to the underlying issues and will not be ‘heard or read by counsel’ or ‘by the court or other judicial officer,’” but public access is presumed for “materials that invoke ‘judicial resolution of the merits’” (citations omitted)).[4]

So, this is an example where (cleaned up) was misused and misused in a way that the court found misleading. But, the potential for misuse is not unique to, and thus not attributable to, (cleaned up). Other ways of noting alterations or omissions in quoted material, such as brackets or ellipses, may be misused.

Whatever approach we take to quoting authorities it is our responsibility as advocates to ensure that we are scrupulously accurate in doing so.

 

[1] No. 20-13932, 2021 WL 5351863 (11th Cir., Nov. 17, 2021).

[2] Id. at *4.

[3] Randall CALLAHAN, et al., Plaintiffs-Appellees, v. UNITED NETWORK FOR ORGAN SHARING, Defendant-Appellant., 2020 WL 7641873 (C.A.11), 34.

[4] Commr., Alabama Dept. of Corrections v. Adv. Loc. Media, LLC, 918 F.3d 1161, 1168 (11th Cir. 2019).

November 23, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, November 21, 2021

Answer the Question

            At the 2021 Summit of the Appellate Judges Education Institute on November 13, Judge James Earl Graves, Jr. of the Fifth Circuit made a plaintive plea: answer the question. After serving for a decade on the Mississippi Supreme Court before assuming his position on the federal appellate court, Graves said that too many advocates fail to follow that simple command. Justice Beth Watkins, who serves on a Texas Court of Appeals, moderated the panel and agreed wholeheartedly that answering the question posed seemed to be a stumbling point for lawyers.

            Graves made his remarks during a discussion of “Top Tips for Top-Notch Oral Argument Answers.” The judge said that counsel will often be so focused on the message crafted in preparation for the argument that they fail to pay sufficient attention to the question or plow over it in order to advance their point. However, it is entirely possible that the framework that the advocate seeks to advance may be secondary to satisfying members of the court on something that struck them as critically important. Satisfying the judge by answering the question and either relating it to the pre-planned argument or pivoting to another topic deemed important to address ought to be counsel’s focus.

            Reading the briefs, Graves said, will likely raise some questions for the judge, including issues that may have arisen in other cases that had come before the judge. Perhaps counsel had not considered the issues raised by the question before – or the judge may be mistaken about its relevance to this case. In either event, the question should be answered.

            In dealing with a mistaken question, panelist Joshua B. Carpenter of Federal Defenders of Western North Carolina suggested a humble approach. He recalled a time when a judge insisted that Carpenter’s point could not be correct given the record evidence about mailboxes. Carpenter responded by gently suggesting that he could not recall mailboxes figuring in the record. The judge, however, continued to insist that the mailbox evidence definitively refuted Carpenter’s claim – until the judge received a note from a law clerk, informing him that the mailbox case was being argued the following week.

            During oral argument earlier this month before the U.S. Supreme Court in New York St. Rifle & Pistol Ass’n, Inc. v. Bruen, a case I covered during my Summit panel on the current Supreme Court term, Deputy Solicitor General Brian Fletcher parried the questions he was asked with impressive aplomb, providing a number of examples of how to answer questions while turning to your own point. The case involved New York’s restrictions on gun licenses, one that most observers believe will be declared unconstitutional and that Fletcher was defending. The case appeared to turn on a combination of the Second Amendment’s text, history, and traditions in the States.

            Early on, Justice Clarence Thomas asked Fletcher how to decide which States’ history and traditions should inform the Court on the proper approach to gun rights, adding “you focus a lot on western states, but the west is different.” Fletcher immediately agreed that the west is different, but indicated that the Court should be “skeptical about a tradition that’s only  reflected in one state, indicating that that was a flaw in his opponent’s argument which relied on “some of the cases exclusively from the antebellum south.” His cases, he added, spanned the country.

            Chief Justice John Roberts questioned Fletcher about why a license to bear arms is justifiable when other Bill of Rights guarantees were not subject to licensure. Fletcher agreed with the initial proposition that most rights do not permit licensing schemes, but then recognized that his opponent, in answer to a question from Justice Brett Kavanaugh, said that the challengers had no quarrel with licensing regimes for guns generally. That stance, Fletcher explained, illustrates that the “Second Amendment has a distinct history and tradition and that the way to be faithful . . . to that history and tradition [is] not to draw analogies to other rights with -- with their own histories and traditions.”

            What makes these answers admirable is that they answered the question but made a point that was consistent with the arguments made in the briefs and even incorporated opponents’ statements made during the oral argument. It took questions from justices likely vote against Fletcher’s position and used them to make a point consistent with the concern voiced by the questioner but turned to the advocate’s advantage. While the New York gun law may not survive this constitutional challenge, Fletcher’s performance provided a classic example of what answering the question should mean.

November 21, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts | Permalink | Comments (0)

Saturday, November 20, 2021

A Great Summary of Argument Can Make Your Brief

Our Federal Rules of Appellate Procedure require a brief’s Summary of Argument to “contain a succinct, clear, and accurate statement of the arguments made in the body of the brief, . . . which must not merely repeat the argument headings.”  Fed. R. App. P. 28(a)(7).  As a judicial clerk, I saw brief after brief where the authors ignored this rule.  Far too many attorneys essentially listed their point headings in sentence form, leaving the court with the impression counsel realized just before filing that they needed to add some sort of Summary of Argument.

Counsel who ignore the Summary of Argument lose a great opportunity to persuade busy judges, who might otherwise only skim the brief, and to set the tone for the entire case.   The Summary gives an attorney the chance to introduce, persuasively, and to expressly set out the theory of the case.   Moreover, using an interest-creating “hook” or very direct statement of the argument’s overall main points can also set the stage for later oral argument.  Additionally, in large litigation, the Summaries of Argument might be the only thing many stakeholders read. 

Recently, I read a fantastic Summary of Argument which really proves these points.  In the pending Supreme Court cases on the Texas and Mississippi abortion bans, the Court received a record number of amicus briefs.  As NPR reported, as of mid-September, the Court had an astonishing number--over 1,125--friend-of-the-Court briefs in the Mississippi case, Dobbs v. Jackson Women’s Health OrgSee https://www.npr.org/2021/09/20/1038972266/supreme-court-date-roe-wade-dobbs-jackson-womens; see generally https://www.law.com/nationallawjournal/2021/05/24/avalanche-of-amicus-briefs-will-hit-justices-in-new-abortion-rights-case/?slreturn=20211020144237.

You can find the briefs in Dobbs at SCOTUSblog here:  https://www.scotusblog.com/case-files/cases/whole-womans-health-v-jackson/.  But how do you choose which briefs to read?  I wanted to read a selection of amicus briefs from multiple sides of the issues, but I did not want to read 1,125 briefs.  In selecting briefs to give my attention, I scanned the names of the authors, and then I read the Summaries of Argument from groups who intrigued me.  One brief, filed by The Lawyers’ Committee for Civil Rights Under Law and seventeen other civil rights organizations, has a beautiful Summary of Argument that persuaded me to download and read the entire amicus brief.  

The Lawyers’ Committee brief uses a strong statement of its overall argument on stare decisis to hook in the reader, beginning:  “Because Mississippi H.B. 1510 . . . bans abortions beginning at 15 weeks’ gestation, it directly conflicts with this Court’s unambiguous precedent that pre-viability abortion bans are unconstitutional.”  See https://www.supremecourt.gov/DocketPDF/19/19-1392/193123/20210921090114082_19-1392bsacLawyersCommitteeForCivilRightsUnderLaw1.pdf.  Then, the brief sets up its argument there is no reason to ignore stare decisis here, stating, “[p]etitioners acknowledge this conflict by requesting that this Court overrule these landmark cases, which pregnant people have now relied upon for almost half a century.”  Id. at 2.  Next, the Summary of Argument gives a nice explanation of the analysis the Court should use to “take the extraordinary step of rejecting stare decisis,” noting “this Court must determine, among other things, whether a “special justification” exists” by examining the “legitimate expectations of those who have reasonably relied” on the precedent and the “real-world effects on the citizenry.”  Id. at 2-3.

Thus, in just a few sentences, the Lawyers’ Committee brief states its position clearly and encourages the reader to continue.  The entire Summary is only seven short paragraphs, and follows the approach of stating the Lawyers’ Committee’s conclusions directly, and then giving compelling, but brief, points supporting each conclusion.

In a field of more than 1,125 briefs, the Lawyers’ Committee helped its amicus brief stand out with a short, persuasive Summary of Argument which perfectly followed the Court’s rules and masterfully engaged the reader.  The next time you draft a Summary of Argument, you might want to follow this wonderful example.

November 20, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Writing, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, November 14, 2021

Why Confidence in the United States Supreme Court is Declining

In a recent poll, only 40% of respondents expressed confidence in the United States Supreme Court.[1] The public’s declining confidence in the Court, and the resulting threat to the Court’s institutional legitimacy, is attributable in substantial part to several factors.

1.    The Court’s decisions are perceived as political and outcome-driven.

In several landmark decisions involving divisive social issues, the Court has disregarded or manipulated the Constitution’s text to achieve outcomes that arguably reflect the justices’ policy predilections. In Griswold v. Connecticut, for example, the Court held that the Fourteenth Amendment’s Due Process Clause, which prohibits the government from depriving citizens of “life, liberty, or property without due process of law,” encompasses a substantive – and unenumerated – right to privacy.[2] In so holding, the Court stated that, although a literal interpretation of the Due Process Clause did not support creating this right,  the Constitution nonetheless contained invisible “penumbras,” that are “formed by emanations from those guarantees [in the Bill of Rights] that help give them life and substance.”[3] It was within these penumbras that the Court discovered a right to privacy.

In other words, the Court singlehandedly created an unenumerated right to privacy out of thin air.

To make matters worse, in Roe v. Wade, the Court held that the unenumerated right to privacy encompassed a right to terminate a pregnancy.[4] Regardless of one’s view on abortion,  the Court’s decision, as in Griswold, entirely disregarded the text of the Due Process Clause and instead discovered this right in the invisible penumbras that Griswold created. The result reflected a troubling reality: the Court, consisting of nine unelected and life-tenured judges, was giving itself the unchecked authority to invent whatever rights it subjectively deemed necessary to ensure liberty for all citizens. These and other decisions were rightly perceived as fundamentally undemocratic and inconsistent with the judiciary’s obligation to say what the law is, not what it should be.

Additionally, in Planned Parenthood v. Casey, the Court, in a 5-4 decision, reaffirmed Roe, although the Court acknowledged again that the Due Process Clause’s text  did not support recognizing a right to abortion.[5] Undeterred by the text, however, the Court supported its decision by emphasizing that “[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."[6] Apart from being based on no reasonable interpretation of the Due Process Clause, the Court’s decision – and this passage – indicated that the Court would in the future unapologetically create whatever unenumerated rights it deemed essential to liberty – and impose that judgment on all fifty states.

The Court’s decisions were intellectually dishonest, constitutionally indefensible, and outcome-driven. This is a recipe for undermining public confidence in the Court.

Furthermore, some of the Court’s 5-4 decisions often conveniently align with the justices’ political views. For example, in its abortion and affirmative action jurisprudence, the ‘liberal’ justices often, if not always, vote to invalidate abortion restrictions and uphold affirmative action policies, while the ‘conservative’ justices predictably disagree. The impression, of course, is that politics, not law, underlies the Court’s decisions.

2.    The Court gets involved in disputes that the democratic process should resolve.

The Constitution says nothing about abortion.

It says nothing about same-sex marriage.

It says nothing about whether money constitutes speech.

It says nothing about whether imposing the death penalty for child rape is cruel and unusual.

Yet, the Court has repeatedly injected itself into these disputes – and determined for all fifty states – what the Constitution means and requires. In so doing, the Court’s decisions, which in the above areas are almost always decided by a 5-4 vote, undermine democratic choice.

3.    The Court fails to defer to the democratic process when the Constitution is ambiguous.

The Constitution’s text is often broadly worded and subject to different interpretations. In these circumstances, the Court should defer to the democratic and political process, not intervene and impose its interpretation on an entire country.

For example, in Kennedy v. Louisiana, the Court considered whether a Louisiana law, which authorized the death penalty for the rape of a child, violated the Eighth Amendment’s Cruel and Unusual Punishment Clause.[7] Based on the Eighth Amendment’s text and original purpose, reasonable jurists could reach different conclusions on this question. Put differently, the Eighth Amendment provided no definitive answer regarding the law’s constitutionality. Given this fact, the Court should have deferred to Louisiana’s democratic process and refused to grant certiorari. Instead, the Court intervened and, in a controversial 5-4 decision, invalidated the law.

Likewise, in Clinton v. New York, the Court addressed whether the Line Item Veto Act, which both houses of Congress passed, and which allowed the President to amend or repeal portions of duly-enacted laws (primarily to reduce excessive spending), violated the Constitution’s Presentment Clause.[8] The Presentment Clause was broadly worded and, thus, subject to different interpretations concerning the line-item veto’s constitutionality. Nonetheless, the Court intervened and, in a 6-3 decision, invalidated the Act.

Why?

Who is to say that the Court’s interpretation of a broadly-worded provision is any more correct than that of federal or state legislatures? Indeed, as Justice Stephen Breyer argued in his dissent, the Act did “not violate any specific textual constitutional command, nor does it violate any implicit Separation of Powers principle.”[9]

4.    The justices’ reasoning in many cases is inconsistent and suggests that politics, not law, drive their decisions.

Inconsistent and uneven application of doctrine and precedent is certain to undermine public confidence in the Court. Yet, that is precisely what some of the Court’s decisions reflect.

For example, in National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts provided the fifth vote to uphold the Affordable Care Act.[10]  In his opinion, Chief Justice Roberts held that the Affordable Care Act’s individual mandate could reasonably be construed as a tax and was thus justified under Congress’s taxing powers.[11] Roberts also emphasized that, where a law does not clearly violate the Constitution’s text, deference to the coordinate branches is appropriate.[12]

Fair enough. That approach is reasonable – if applied consistently.

Unfortunately, however, that is not the case. In Shelby County v. Holder, for example, Roberts joined a five-member majority to invalidate portions of the Voting Rights Act that had been re-authorized by a unanimous 99-0 vote in the Senate.[13]

Now, there may certainly be justifiable reasons that could explain Roberts’ different approach in both cases. But those reasons, particularly when not apparent from the Court’s decisions, do little, if anything, to affect the perception that politics, not law, motivates the Court’s decisions. And perception is reality.

Additionally, the Court’s toxic, on-again, off-again relationship with stare decisis raises similar concerns. For example, in June Medical Services v. Russo, Chief Justice Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges. [14] In so doing, Roberts emphasized that his decision rested on stare decisis principles, as the Court in Whole Woman’s Health v. Hellerstadt had recently invalidated a nearly identical law in Texas. [15]

Yet, Roberts has not been shy about disregarding stare decisis when he disagrees with a prior decision. For example, in Janus v. AFSCME, Roberts voted with the majority to overrule Abood v. Detroit Bd. of Ed., and hold that labor unions could not collect fees from non-union members.[16] Of course, there may be an understandable reason for Roberts’ inconsistent application of stare decisis. But to the public, it appears that stare decisis is a doctrine of convenience rather than conviction.

***

The public’s confidence in the Court – and the Court’s institutional legitimacy – depends on whether its decisions reflect an honest interpretation of the law and fidelity to constitutional and statutory text. The Court’s recent jurisprudence suggests that other factors are influencing its decisions, including a desire to reach outcomes that the Court believes will maintain its legitimacy. But that concern is precisely what leads the Court to make decisions based on political calculations, the effect of which is to undermine the very legitimacy the Court seeks to preserve. The path to restoring public confidence in the Court is through intellectual honesty, reasonable interpretations of the Constitution, and consistent application of legal doctrines.

 

 

[1] See Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (Sept. 23, 2001), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

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

[3] Id. (emphasis added) (brackets added).

[4] 410 U.S. 113 (1973).

[5]  505 U.S. 833 (1992).

[6] See id.

[7] 554 U.S. 407 (2008).

[8] 524 U.S. 417 (1998).

[9] Id.

[10] 567 U.S. 519 (2012).

[11] See id.

[12] See id.

[13] 570 U.S. 529 (2013).

[14] 591 U.S.           , 2020 WL 3492640 (2020).

[15] 579 U.S. 582 (2016).

[16] 138 S. Ct. 2448 (2018).

November 14, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Saturday, October 30, 2021

The U.S. Supreme Court’s Institutional Legitimacy is At Stake in Whole Women’s Health v. Jackson

Like a bad dream (or a toxic ex-partner), abortion has made yet another unwelcome visit to the United States Supreme Court, thanks to the State of Texas.

Texas is up to its old tricks again in its never-ending quest to find some way – any way – to disregard Roe v. Wade and Planned Parenthood v. Casey, and eviscerate abortion access in the Lone Star State. By way of background, in 2013, Texas passed a law requiring abortion providers to have hospital admitting privileges and claimed that the law’s purpose was to protect women’s health.[1] But the stated purpose was as meritless as it was disingenuous: complications from abortions are quite rare and less frequent than, for example, complications resulting from tonsillectomies and tooth extractions – neither of which were subject to such a requirement.[2] The law was challenged and, in Whole Women’s Health v. Hellerstedt, the Court, by a vote of 5-4, rightfully invalidated the law and implicitly recognized that its purpose was, in the words of former Governor Rick Perry, “to make abortion, at any stage, a thing of the past.”[3]

Sadly, Texas didn’t learn its lesson.

The legislature recently passed – and Governor Gregory Abbott signed – a “fetal heartbeat” law (“SB 2”)  that prohibits abortions after six weeks. But there’s more: ostensibly aware that the law unquestionably violates Roe and Planned Parenthood, which held that women have the right to terminate a pregancy before viability (approximately twenty-four weeks), Texas designed a ridiculous scheme to evade review by the federal courts. Specifically, SB 2 authorizes private citizens, not state officials, to enforce the law by giving all citizens the right to sue abortion providers who perform abortions after six weeks.[4] And to incentivize such lawsuits, Texas is offering private citizens at least $10,000 if they succeed in a lawsuit against an abortion provider. Put simply, SB 2 creates private bounty hunters.

Not surprisingly, SB 2’s constitutionality was immediately challenged. Initially, the Court refused to grant injunctive relief, holding that, although the law raised serious constitutional questions, it also raised “novel antecedent procedural questions," such as whether the Court had the power to issue an injunction against “state judges asked to decide a lawsuit under Texas’s law,” and whether an injunction was proper given that the named defendants lacked the power to enforce the law.[5] As a result, the law is now in effect and abortions in Texas are, as a practical matter, a thing of the past.

So here we are again.

Like in Hellerstedt, where Texas unsuccessfully argued that a hospital admitting privileges requirement was necessary to protect women’s health – a justification the Court rightfully rejected – it  now argues that it can effectively eliminate the right to abortion by adopting a private enforcement scheme that uses citizens as proverbial human shields to evade federal review and preclude injunctive relief . As in Hellerstedt, the Court should invalidate this ridiculous law, which thumbs its nose at the Court, its abortion precedent, and judicial review. The law unquestionably violates Roe and Planned Parenthood, and is an unconstitutional assault on the viability threshold. The Court should recognize the obvious.

If the Court fails to do so, it will severely, if not irreparably, undermine its institutional legitimacy. Indeed, at a time when forty percent of the public has confidence in the Court, doing the right thing – regardless of ideology – is critical.[6]

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 Whole Woman’s Health 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 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 the point – and the problem.

Yet, this is precisely what the public may believe if the Court refuses to grant Petitioners relief and, instead, focuses on the “novel antecedent procedural questions," such as those mentioned above. Doing so will likely be viewed for what it is: conservative justices hiding behind Texas’s legislative shenanigans to all but outlaw abortion in Texas and, concomitantly, give states carte blanche to eviscerate any constitutional right simply by enacting a private enforcement scheme. If the Court countenances such nonsense, constitutional rights will be worth the equivalent of Monopoly money.

The Court should grant Petitioners relief.  Regardless of whether one is pro-life or pro-choice, what matters is recognizing this charade for what it is: a sophomoric and transparent attempt to disregard Roe and eliminate abortion. 

Ultimately, the mess that is abortion jurisprudence reflects three problems with the Court's decisions in this and other areas.

  1. Living Constitutionalism. The Court is in this mess primarily because Roe v. Wade was a constitutionally indefensible decision. Decided less than a decade after Griswold v. Connecticut, an equally indefensible decision, the Court created a right to privacy (and abortion) out of thin air, as no reasonable interpretation of the Fourteenth Amendment’s Due Process Clause could support recognizing these rights. The backlash among states that Roe and, later, Planned Parenthood engendered, and that has thrust the abortion right into uncertainty for decades, reflects the flawed reasoning in these decisions. 
  2. An ambiguous legal standard. In Planned Parenthood, the Court reaffirmed the central holding in Roe but created a new standard by which to assess the validity of abortion restrictions. Specifically, the Court held that laws regulating abortion cannot place an “undue burden” on a woman’s right to terminate a pregnancy. But what exactly constitutes an “undue burden"? No one knows. Adopting this vague standard created uncertainty and unpredictability regarding the right to abortion and only guaranteed that states like Texas would continually attempt to limit, if not eliminate, abortion access.
  3. Incrementalism. The Court, particularly under Chief Justice John Roberts, has adopted an incremental approach to deciding cases, in which the Court only decides the narrow legal issue before it, thus eschewing broad rulings or the adoption of categorical legal rules. This approach has many benefits. Sometimes, however, clear – and categorical – rules are necessary to bring clarity to the law, guide lower courts, and bring stability to the law.

The Court’s abortion jurisprudence suffers from all three flaws. As such, it should not be surprising that the right to abortion has for decades led to countless legal challenges and continued uncertainty.

Hopefully, the Court will recognize – and rectify – the problem. Its institutional legitimacy depends on it.

 

[1] 579 U.S. 582 (2016).

[2] See id.

[3] Press Release, Governor Rick Perry, Tex., Governor Perry Announces Initiative to Protect Life (Dec. 11, 2012), http://perma.cc/CWN2-KLDD.

[4] See Brief of Professors Adam Lamparello, Charles E. MacLean, and Brian Owsley in Support of Petitioner, available at: Microsoft Word - Amicus Brief In Support of Petitioners (supremecourt.gov).

[5] See Whole Woman’s Health v. Jackson, 594 U.S.        (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).

[6] Se Jeffrey M. Jones, Approval of U.S. Supreme Court Down to 40%, a New Low (September 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

October 30, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, October 24, 2021

Qualifying for Qualifying Immunity

Last week, in two per curiam opinions, the Supreme Court reversed decisions of the Ninth and Tenth Circuits by holding that the police officers accused of exercising excessive force were entitled to qualified immunity. In both decisions, the Court found that no clearly established precedent put the officers on notice that their actions violated the suspect’s rights. Many commentators described the decisions as a blow to police reform and asserted that the Court displayed a tin ear about roiling concerns about racial justice and criticisms of qualified immunity.

That dissatisfaction was poignantly expressed at the end of summer by U.S. district court judge Carlton Reeves where he reluctantly applied qualified immunity to dismiss an action against a Mississippi police officer, who pulled over a Mercedes driven by a black man on the assumption by the officer that the driver had to be involved with drugs to be operating the luxury car. He detained the man for nearly two hours while the car was disassembled (and then left that way) in a fruitless search for contraband. Through simple declarative sentences recalling other similarly wrongheaded incidents,[1] many of which resulted in tragic deaths, Judge Reeves made clear how qualified immunity has served as a “shield” for police abuse and misconduct, even as he followed controlling precedent.

To be sure, the judge-made doctrine of qualified immunity has its most urgent and controversial application in the context of police actions. Even critics of qualified immunity acknowledge that some split-second decisions do not allow the type of reflection necessary to understand why certain conduct crosses a line. Yet, qualified immunity applies not only to pressing life or death situations, but also to circumstances where deliberation is possible and where the offender is not a police officer, but people knowledgeable in the law. Two cases in which I have been involved demonstrate the uneven application of qualified immunity and why the doctrine is overdue for an overhaul.

In Stamps v. Town of Framingham,[2] the First Circuit denied qualified immunity to a police officer, who as a member of a SWAT team, was asked to watch an elderly black man while other members of the team searched the man’s apartment for a stepson wanted in connection with selling crack. SWAT had been briefed that Eurie Stamps, Sr., a 68-year-old retired Metro worker, was no threat. Shortly after midnight, the team executed a raid by throwing a flashbang grenade through the kitchen window as others battered down the front door. When they met Stamps, he complied with an order to get down on the floor on his stomach with his hands and feet in the air. The officer asked to watch Stamps as the search continued, pointed his assault rifle at Stamps’s head with the safety off and his finger on the trigger. Then, the officer unintentionally pulled the trigger, killing Stamps. The stepson was not in the apartment.

 Framingham defended by claiming that qualified immunity should require dismissal of the subsequent lawsuit because it was not “clearly established” that the unintentional discharge of the rifle violated the decedent’s rights. The First Circuit made short work of the claim. Pointing the rifle at a person’s head when he posed no threat and was suspected of no criminal act was the intentional act that put in motion the weapon’s discharge and that type of recklessness was comparable to past precedents, making it clearly established and putting police officers on notice. The “clearly established” requirement was satisfied, largely by reference to federal appellate decisions in other circuits.

 However, in Echols v. Lawton,[3] the “clearly-established” requirement defeated the lawsuit. In Echols, the plaintiff had served seven years in prison for a crime he did not commit and that DNA evidence, examined as a result of work by the Innocence Project, finally exonerated him. Echols lost his family, his military career, and his health as a result of his long, imprisonment. He was released, after the State entered a nolle prosequi on the charges. A bill was introduced in the legislature to compensate him, and the Georgia Claims Advisory Board voted unanimously twice to support the bill. However, the bill was derailed when the prosecutor sent letters to key legislators, asserting the conviction was proper and, falsely, that Echols remained under indictment for the original charges of rape and kidnapping. The bill then died.

Echols sued the prosecutor for violations of his First and Fourteenth Amendment rights. The Eleventh Circuit, while finding the prosecutor’s actions, undertaken with deliberation, highly detestable and likely libel per se, nonetheless found that the violations were not “clearly established” in that circuit. Even if other circuits would have found no qualified immunity based on existing precedent, the Eleventh Circuit requires an on-point in-circuit precedent before qualified immunity can be denied. Echols now serves as a precedent for a future case, clearly establishing that a prosecutor cannot misrepresent to other government officials the case’s status. It is now “clearly established” that the same misconduct would not be immunized in the future. It did not matter that rules of ethics and rules specifically applicable to prosecutors plainly prohibited what occurred here; the court required a precedential decision from within the circuit, something that other circuits do not. Oddly, Supreme Court precedent does not even require a prior ruling on the issue.

Interestingly, the panel included a judge sitting by designation from the Sixth Circuit. He concurred in the decision, only because of the Eleventh Circuit requirement of a prior in-circuit decision, stating that his circuit would have denied qualified immunity.

The many decisions that provide qualified immunity insensibly to a host of situations where the violation is patent and the different standards applied by the circuits at this late date in the doctrine’s existence calls for its reexamination. Reconsideration of the doctrine is coming – sooner is much better than later.

 

[1] See Jameson v. McClendon, No. 3:16-cv-595, https://www.documentcloud.org/documents/7013933-Jamison-v-McClendon.html.

[2] Stamps v. Town of Framingham, 813 F.3d 27, 29 (1st Cir. 2016).

[3] Echols v. Lawton, 913 F.3d 1313 (11th Cir.), cert denied, 139 S.Ct. 2678 (2019).

October 24, 2021 in Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, October 18, 2021

(Clean[] Up) Your House, Your Car, Your Life--Not Your Citations

Unpopular opinion--Lawyers should not use (cleaned up) citations in their briefs. 

Two years ago Charles Oldfield blogged on this very blog about (cleaned up) citations. As Charlie explained it, in legal writing we often "alter or omit inconsequential parts of the quotation to make the quotation more readable."  All of those alterations and omissions can make a quote difficult to read between the ellipses, the [sic], and the brackets.  The solution, as proposed by Jack Metzler of @SCOTUSPlaces, is to omit these changes and use a parenthetical (cleaned up) to signal to our readers that we have not indicated those changes. 

Metzler published an essay in The Journal of Appellate Practice and Process on (cleaned up) citations a few years ago. Apparently, Bryan Garner has endorsed the practice too--but he also supports the dreaded practice of footnoting citations. The most prominent (cleaned up) user is Justice Thomas, who included it in a February 25 opinion. According to information that Metzler gave the ABA Journal in March 2021, (cleaned up) has appeared in 5000 judicial opinions.

So, now for my unpopular opinion--Judges can use (cleaned up) all they want.  But attorneys should not unless the court rules expressly allow for it.

I have no issue with Justice Thomas or any other judge using (cleaned up). I consider that a benefit of being on the bench.  The truth is that judicial opinions are rarely models of exemplary citation form. And, to be honest, they don't have to be. If the briefing was done well, there shouldn't be many sources in the opinion that come as a surprise to the advocates. Attorneys, on the other hand, write to inform the court about the issues and the law. Citations and explanations of caselaw are a key part of that responsibility. Perhaps one of the best explanations of the role of citations that I have read came from Eugene Volokh.  He wrote:

I remember asking a federal appellate judge once why courts don't shift more to the citations-in-footnotes style, which I had thought looked cleaner and made it easier to follow the flow of the argument. He laughed, and said something like, "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

If judges do view citations and quotations to caselaw as "the most important part of the argument," then they might be wary of efforts to clean those sources up.  As I explained in this blog post, one of judges' most common complaints about briefs is that attorneys misstate the law and record. That post, in fact, discussed a Ninth Circuit opinion where the court chastised attorneys for misrepresenting precedent by altering quotations from cases.

If I were a judge, a brief full of (cleaned up) citations would just annoy me (and my clerks), since we would have to carefully check each cite. Sure, one would hope that the opposing party would help out, but you never know.  And, while I am aware that misrepresenting quotations isn't the spirit of the (cleaned up) citation, I am also aware that regardless of its purpose it would be misused as a citation device.

So, my advice for attorneys (and students) is to avoid (cleaned up) citations for the present. If court rules eventually adopt the practice, then you can use it correctly (and hopefully sparingly).

 

October 18, 2021 in Appellate Practice, Legal Writing | Permalink | Comments (0)

Saturday, October 16, 2021

Why We Should Use Proper Apostrophes, Even on Facebook

Like many, I use “Weird Al” Yankovic’s “Word Crimes” in my legal writing classes.   See    https://www.youtube.com/watch?v=8Gv0H-vPoDc.  In the past few years, I have added a note about not calling each other “morons” when I play the video.  Nonetheless, the song and lyrics still have great examples about why we need Oxford commas, correct apostrophes, and other basic punctuation, all to a catchy tune.  Often, I pair this discussion with an analysis of the 2018 Maine dairy delivery drivers’ dispute about a missing comma and overtime pay.  See https://www.cnn.com/2017/03/15/health/oxford-comma-maine-court-case-trnd/index.html.  I’ve blogged about the Maine case before, as it leads to great teaching discussions.  See also Kelly Gurnett, A Win for the Oxford Comma: This Lawsuit Shows Why It’s So Important (updated Nov. 2, 2020), https://thewritelife.com/is-the-oxford-comma-necessary/ (“For anyone who’s ever wondered what all the fuss is about over Oxford commas, the circuit judge’s [dairy drivers’ pay] opinion says it all: ‘For want of a comma, we have this case.’”).

This month, the District Court of New South Wales in Australia gave us another ruling on punctuation, this time involving defamation and a Facebook post.  See https://www.theguardian.com/law/2021/oct/10/missing-apostrophe-in-facebook-post-lands-nsw-real-estate-agent-in-legal-hot-water.  As New York Times writer Livia Albeck-Ripka explained in her article on the case, “a missing apostrophe in a Facebook post could cost a real estate agent in Australia tens of thousands of dollars after a court ruled a defamation case against him could proceed.”  https://www.nytimes.com/2021/10/11/world/australia/facebook-post-missing-apostrophe-defamation.html#:~:text=Missing%20Apostrophe%20in%20Facebook%20Post%20Lands%20a%20Man%20in%20Defamation,mark%20may%20cost%20him%20thousands.

In his Facebook post, real estate agent Anthony Zadravic appeared to accuse Stuart Gan, his former employer at a real estate agency, of not paying into the Australian government retirement fund for all of the agency’s employees, and not just for one employee.   Zadravic’s Facebook post stated:

Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation [for the Australian retirement system].  Shame on you Stuart!!! 2 yrs and still waiting!!!

Id.  Gan filed a defamation claim against Zadravic, alleging the Facebook post improperly stated Gan had not paid his contributions for any of his employees, since Zadravic did not use an apostrophe in “employees.”

Although Zadravic explained he meant the singular “employee’s” contributions for his own account, the court refused to dismiss Gan’s case.  The court ruled the plural “employees” without an apostrophe could “be read to suggest a ‘systematic pattern of conduct’ by Mr. Gan’s agency rather than an accusation involving one employee.”  Id.  Thus, the judge allowed the defamation case to move forward.

While there are lower standards for defamation in Australia than in the United States, for example, the punctuation point is well-taken.  Just as we teach our students to be cautious in their work texts and avoid imprecise language, emojis, and the like, we should also caution them be careful not only in content, but also in language on social media. 

My teen/twenty-something sons will roll their eyes (via emojis, no doubt) at my suggestion we use proper grammar on social media.  However, when our students and newer associates are posting about professional matters, they should err on the side of caution.  Many employers, in fact, have strict guidelines on social media posts, and using proper punctuation helps ensure compliance.  

Thus, whether we use the dairy drivers, “Weird Al’s” YouTube videos, or now the Facebook apostrophe case, we have several fun sources to encourage discussion and create teaching moments on commas, apostrophes, and more.  

October 16, 2021 in Appellate Practice, Current Affairs, Legal Writing | Permalink | Comments (0)

Sunday, October 10, 2021

Becket is Hiring

I received word this week that Becket is hiring. For those who are not familiar with Becket, it is a leading religious liberty public interest law firm with a superb record before the U.S. Supreme Court.  It would be an excellent place to get some appellate experience. The details on the positions are below:

First, Becket is seeking to hire 1-2 new attorneys as Counsel. Ideal candidates will have an appellate clerkship, 1-5 years of post-law-school experience, and excellent litigation skills. You can find more details on the position here: https://www.becketlaw.org/counsel-position/.

Second, Becket is seeking 2-3 new attorneys for its 2022-23 Constitutional Law Fellowship. The fellowship is a one-year position that is open to exceptional recent judicial clerks. It provides immediate, hands-on experience litigating cutting-edge constitutional cases under the mentorship of experienced Becket attorneys. It is also an excellent stepping stone to an additional judicial clerkship, government service, private practice, or public interest law. Fellowships start in fall 2022 and offer a competitive salary and benefits. You can find more details here: https://www.becketlaw.org/constitutional-law-fellow-posting/.

October 10, 2021 in Appellate Practice, Federal Appeals Courts, Legal Profession | Permalink | Comments (0)

Saturday, October 9, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, October 9, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

Appellate Court Opinions and News

  • The controversial Texas abortion ban was blocked and then reinstated this week. The Texas law bans most abortions after about 6-weeks, making abortion virtually impossible in Texas. Judge Pitman of the District Court for the Western District of Texas blocked the ban, recognizing the deprivation of a constitutionally protected right. Judge Pitman wrote: “[T]here can be no question that [the law] operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and ‘equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.’”  He ends the opinion by finding that “[f]rom the moment [the Texas law] went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” See Judge Pitman’s decision and reports on the decision from NPR, Reuters, The New York Times, APNews, the Austin American Statesman, and The Washington Post.

  • Late Friday, the Fifth Circuit stayed Judge Pitman’s order.

Appellate Practice

The Advocate’s Society, Appellate Advocacy Practice Group: Networking Launch, is offering an online program titled “Dirty Tricks of Appellate Advocacy?” on October 26.

October 9, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, October 2, 2021

A Six-Vote Supermajority Requirement is the Solution to De-Politicizing the United States Supreme Court

The United States Supreme Court is struggling to maintain its institutional legitimacy. A recent poll showed that only 40% of Americans approved of the Court.[1] Three factors arguably explain the reasons underlying the public’s negative perception of the Court.

1.    Chief Justice John Roberts

Chief Justice John Roberts is a brilliant and accomplished jurist, and by all accounts a good person. But Roberts has contributed substantially to the Court’s compromised legitimacy. This might appear surprising at first glance, considering that Roberts cares deeply about preserving the Court’s legitimacy and is dedicated to ensuring that the Court is not viewed as a political institution.

Sadly, that very concern is precisely what has politicized the Court. The reason is that, in many cases, Roberts decides cases not based on a reasonable interpretation of a constitutional or statutory provision, but on what he believes will preserve the Court’s legitimacy, which essentially means that Roberts decides cases based on how he subjectively believes the public will react.

The problem with that approach should be obvious. It completely divorces the justices from the law, and from their obligation to reach outcomes based on a reasonable interpretation of constitutional and statutory text. In so doing, it enables nine unelected, life-tenured justices to reach outcomes based on their subjective views regarding what outcomes will be viewed as politically “legitimate.” The result is that the Court’s decisions are ipso facto political.

Roberts has been a disappointment on the Court. His approach betrays the rule of law and the judicial role. Put differently, when the justices base decisions on the desire to appear apolitical, they inherently politicize the Court. And Chief Justice Roberts is the Court’s most political actor.   

2.    The Shadow Docket

The Court’s shadow docket, in which it decides cases and important legal issues without oral argument. For example, in Whole Women’s Health, et al. v. Jackson, the petitioners applied for an order enjoining enforcement of a law in Texas that banned all abortions after six weeks, and that gave private citizens, not the government, the power to enforce the law. The Court denied the application, holding that it did not satisfy the standards required for granting a preliminary injunction. Although this interpretation was not incorrect, it showed that the Court couldn’t see the forest from the trees.

Any person with a pulse would recognize that, whatever one’s views on abortion, the law obviously violated the Court’s poorly-reasoned decisions in Roe v. Wade and Planned Parenthood v. Casey, both of which manipulated the Fourteenth Amendment's Due Process Clause to hold that a woman has the right to terminate a pregnancy before viability (i.e., approximately twenty-four weeks). Thus, because Texas’s law was so ridiculous, the Court should have voted unanimously to invalidate the law. Had the Court done so, it would have sent the message that the justices are not motivated by their policy preferences.  Instead, five members of the Court held that the Petitioner failed to satisfy the standards required for granting injunctive relief and allowed the law to go into effect. It should come as no surprise that the usual suspects – those who are almost certainly pro-life – signed onto this decision (Alito, Barrett, Kavanaugh, Thomas, Gorsuch).

So, when the justices express surprise and indignation that the Court is viewed as a political institution and claim that decisions are not based on the policy predilections, it is hard not to laugh.

3.    The Justices’ Political Views

If you believe that the justices don’t base their decisions on personal policy predilections, then you probably believe that the United States faked the moon landing or that most law schools are deeply committed to ideological diversity.

Think about it: could you imagine Justice Sotomayor ever invalidating an affirmative action program? Could you ever imagine Justice Thomas or Justice Alito relying on stare decisis to uphold Roe and Planned Parenthood? Could you ever imagine Justice Kagan supporting restrictions on same-sex marriage? No.

And don’t be fooled when the justices claim that their decisions reflect differences in interpretive philosophies. Uh-huh. It’s interesting – and amazingly convenient – that the justices’ interpretive philosophies so often comport with their policy preferences. That isn’t an accident.

This fact does not make the justices bad people. It just means that they are human. It means that their personal views impact their decisions, which is precisely why it is so critical for the Court to base their decisions on a reasonable interpretation of constitutional or statutory text. It is why the Court should refuse to hear most cases where the Constitution is silent or ambiguous, and instead defer to the democratic and political process. Doing so minimizes the risk that personal preferences will triumph over the law, and decreases the likelihood that constitutional meaning will depend on whether the Court’s majority is comprised of liberals or conservatives.  

Otherwise, justices will feel free to roam unconstrained in the Constitution’s penumbras,  seeking to discover new rights that reflect the “heady days of the here and now.”[2] That approach, which the Court has embraced at times, explains in substantial part why the public doesn’t view the Court favorably.

The Solution

Chief Justice Roberts is not the solution. Expanding the Court, for obvious reasons, is not the solution. The solution is to require a six-vote supermajority to affirm or reverse a lower court decision.

This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. Specifically, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues divisive, controversial – and politicized – decisions.

Furthermore, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would likely be minimized.

Finally, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. 

Without principled reforms, the public perception of the Court will likely remain negative, and with several controversial issues on its current docket, the Court’s legitimacy is likely to go anywhere but up.

 

[1] See Jeffrey M. Jones, Approval of Supreme Court Down to 40%, A New Low (Sep. 23, 2021), available at: Approval of U.S. Supreme Court Down to 40%, a New Low (gallup.com)

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

October 2, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 28, 2021

If the public’s opinion of the Supreme Court falls in the woods, does anyone hear it?

    Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.

    A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.

    Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.

    Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.

    Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.

    Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.

    Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.

September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, September 26, 2021

New Supreme Court Procedures Likely to Change Argument Dynamics

            In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”

            The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.

            That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.

            As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.

            Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.

            In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.

            Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.

            Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses,  may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.

September 26, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Oral Argument, United States Supreme Court | Permalink | Comments (0)