Appellate Advocacy Blog

Advice for Law Students on Oral Argument

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

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

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

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

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

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

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

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

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

The 2023 Justice Donald L. Corbin Appellate Symposium

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

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

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

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

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

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

Should Courts Dispense With the Table of Authorities?

Pending before the Arizona Supreme Court is a petition to change court rules and dispense with the table of citations in state briefs. According to the full petition,

The Table of Citations is no longer needed to help a reader navigate to a particular cited source because most briefs are filed in electronic format with searchable text. Cumulatively, appellate litigants spend an unjustifiable amount of time and resources creating Tables of Citations.

The authors claim that readers now use "searchable text and hyperlinks to navigate the brief and locate cited authorities," rather than the table. The tables, are incredibly time-consuming to create:

Petitioners have found no data-driven analyses on the average length of time it takes to build a Table of Citations. Anecdotal estimations, however, abound. For example, the company ClearBrief—which sells AI software that formats and edits appellate briefs—claims that its “conversations with hundreds of attorneys, paralegals, and legal assistants across the country, indicate that manually creating a perfectly formatted and accurate Table of Authorities can take anywhere from 3 hours to a full week, depending on how complicated the document is.” See Clearbrief, How to Create a Table of Authorities in One Click in Microsoft Word, https://clearbrief.com/blog/authorities (last accessed Jan. 8, 2023). Considering that this source is selling a tool that builds Tables of Citations, Petitioners take the high end of that range with a grain of salt. 

Still, U.S. Supreme Court Justice Antonin Scalia and noted legal writing scholar Bryan Garner warn advocates to “[a]llow a full day” to prepare a Table of Citations, and to “[n]ever trust computers to prepare the tables automatically.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 90 (2008). Experienced advocates working for a firm or company willing to pay for assistive software might manage to generate a perfectly formatted and accurate Table of Citations in less than 45 minutes. Meanwhile, a litigant without access to these programs may spend considerably more time using Word’s built-in citation-marking tool. The tool is not intuitive, and an average-length brief requires anywhere from a couple of hours to a full day to manually mark the citations, depending on the user’s familiarity with the tool. And, many self-represented litigants, particularly inmates, write out their Table of Citations by hand. 

. . . .

Even accounting for time savings from modern technology, the time it takes to compile the Table of Citations, confirm its accuracy, and correct any errors is not insignificant. And all this work must be performed after the substantive briefing is complete, meaning parties are often running up against their deadlines by the time they are ready to build the table. This leaves no room for last-minute adjustments, which creates its own challenges in cases where the drafting attorney needs to seek feedback from a supervisor, trial counsel, or a client. And in both criminal and civil litigation, “the time it takes” translates into actual dollars—either billed to a client at hundreds of dollars an hour or in salary paid to State-funded employees. It is the litigants and taxpayers who ultimately bear these costs.

Petitioners claim that, given the fact that most Arizona courts have now moved to electronic briefs, the "court's infrequent use of the table of citations as a navigational tool renders the cost unjustifiable." They likewise dismiss the non-navigational uses of the table:

Although few people use the Table of Citations as a navigational tool, some have found non-navigational uses, including: (1) to get a “feel” for the case before reading the brief; (2) to check whether a draft decision addresses the main authorities cited by parties; (3) to prepare for conferences or oral argument; and (4) as an aide for finding the correct citation when the citation in the body of the brief is incomplete or inaccurate. See Ball, Jancaitis & Butzine, Streamlining Briefs, at 33–34. None of these uses justify the continued requirement that briefs contain a Table of Citations.

First, readers can “get a feel” for the case by reading the introduction, summary of the argument, and the table of contents. Separately, while first impressions are inevitable when reading any brief, “feeling out” the argument serves little purpose for the end result. Appellate courts base their decisions on the law and facts of the case, not initial impressions. The substance of the arguments should be far more persuasive than a mere list of authorities.

Second, while the Table of Citations may make the brief more formal and emphasize the need to support arguments with legal authorities, other procedural rules and formatting requirements compensate for the loss of the Table of Citations. See, e.g., ARCAP 13(a)(7)(A) (requiring appellate argument contain the litigant’s “contentions concerning each issue presented for review, with supporting reasons for each contention, and with citations of legal authorities . . . .”). Moreover, formatting rules are meant to “promote succinct, orderly briefs that judges can readily follow.” Judith D. Fischer, Pleasing the Court: Writing Ethical and Effective Briefs, 51 (2d ed. 2011). That purpose is not served if the Table of Citations is being used merely to test an advocate’s ability to follow directions. Other aspects of the brief can provide that signal while also improving readability.

Third, while some use the Table of Citations to gather sources to download or refer to at oral argument, it is not a necessary tool to complete either task. More practitioners are hyperlinking their briefs so courts can easily access the cited material as they read the brief. And relatively few cases have oral argument, further diminishing the value of the Table of Citations for this particular purpose.

Finally, the use of the Table of Citations as a “backup” for locating correct citations when they are missing in the body of the brief is unlikely to occur with sufficient frequency to justify the time and resources spent creating the tables. From a logical standpoint, if a litigant has not spent the time ensuring their citations in the body of the brief are accurate, it is unlikely they will have a reliable Table of Citations, or in some cases, any table at all. See State v. Haggard, 2 CACR 2010-0307-PR, 2011 WL 315537, at *2, ¶ 8 (Ariz. App. Feb. 1, 2011) (mem. decision) (attempting to identify cases vaguely referred to in a pro-per brief and noting that no Table of Citations had been provided).

I agree with much of what the Petitioners say. The tables do take a lot of time to prepare, and there are not a lot of great, free, resources for making the tables. I see this with student briefs all the time. I always warn my students to leave time to prepare the tables, and they don't. They then usually comment that they had no idea how time-consuming the tables were to create (despite my prior warning).

Still, I hope that the Supreme Court keeps the table. First, although most briefs are now filed electronically, my research for Winning on Appeal revealed that many judges still like to read briefs in paper form. This means that the table does still play a navigational role. I also find tables useful to identify what cases the parties relied upon. This is more than just getting the "feel" of a brief. It tells me the strength of the reasoning and points me to where in the brief I need to look if I am concerned about a particular case. I think that we often forget how important citations are to the courts. I blogged on this several years ago when talking about citations in footnotes:

Last week, over at The Volokh Conspiracy, Eugene Volokh blogged on this very topic, quoting a district court opinion that stated, 

The Court strongly disfavors footnoted legal citations. Footnoted citations serve as an end-run around page limits and formatting requirements dictated by the Local Rules. Moreover, several courts have observed that "citations are highly relevant in a legal brief" and including them in footnotes "makes brief-reading difficult." The Court strongly discourages the parties from footnoting their legal citations in any future submissions.

Eugene also mentioned a federal appellate judge who told him "You view citations to authority as support for the argument. I view them as often the most important part of the argument."

I do agree that we need more technology tools to make efficient tables, and I would be happy to highlight any such tools in this blog (just shoot me an email!).

Concrete Economics on the Supreme Court

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

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

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

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

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

 

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

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

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

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

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

Appellate Advocacy Blog Weekly Roundup Friday, January 20, 2023

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

• The Supreme Court has issued a statement about the leaked draft of the controversial abortion decision in Dobbs v. Jackson Women’s Health Org., stating that it has been unable to identify the source of the leak. The Court’s statement included the report from the Marshal of the Supreme Court, who has been tasked with investigating the leak. The statement also included a statement of Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey.  The Court asked Mr. Chertoff to assess the Marshall’s investigation. See a sampling of reports on the statement and the status of the investigation: The Wall Street Journal, The Washington Post, The New York Times, CNN, SCOTUSBlog, Associated Press

• In Supreme Court news this week is the potential impact of cases that consider the rules regulating online speech and social network platforms. One case, Gonzalez v. Google, to be heard next month, will determine whether social media platforms may be sued notwithstanding a 1996 law that shields online companies from liability for users’ posts. See an October 2022 report from The New York Times. This week, The New York Times reported that the Court will discuss whether to consider two other online speech cases; these cases challenge state laws that bar online platforms from removing political content, one in Florida and one in Texas. This week, the ACLU and the Electronic Frontier Foundation (EFF) filed amicus briefs in Gonzalez, warning of the potential for harm to users’ free speech from changes in the power and responsibility of social networks. 

• The Court agreed to hear a case asking it to strengthen protections for workers seeking accommodation for religious beliefs and practices. The petitioner, an evangelical Christian, sued after he was forced to resign from the US Postal Service when his job began to require working on Sunday, his Sabbath. The petitioner lost in the federal district court and in the Third Circuit. Federal law requires that an employer permit the religious observance of workers unless doing so would impose an “undue hardship.” Courts currently rely on the rule established by a 1977 Supreme Court case, Trans World Airlines v. Hardison, which found that, to qualify as being subject to undue hardship, an employer need show only a “more than a de minimis cost.” See the case docket, a report from The Washington Post, and a Reuters report at the time of the appeal. Vox and Slate posted essays on the topic as well.

Appellate Court Opinions and News

• President Biden released the first slate of judicial nominees for 2023 this week. See the White House statement and a report from CNN.

• The Third Circuit has proposed a change to its local rules that would move its filing deadline from midnight to 5 pm in an effort to improve practitioners’ work life balance. The proposal has generated some debate among attorneys in the circuit. See the proposed amendment and reports from Law.com and Reuters. See also a poll created by Howard Bashman (creator of HowAppealing) asking for comment on whether the proposed change would actually improve work-life balance.

Other News

• The Federalist Society posted recordings of some the programs from its January 5-6 faculty conference. Recorded topics include “Politicization of the Economy,” “Dobbs & the Rule of Law,” “Election Law in Flux,” and a debate titled “Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation.

• Here's an informative and sometimes amusing thread on what signals a good brief. Writers take note!
  Joe Fore posed the following question, which generated a short thread with the kind of advice I give students and practitioners every day:

What's something in #legalwriting that's the *opposite* of a Brown M&M? Is there a small detail--usage, style, formatting--that if you see/saw it in a piece of writing, immediately signals that it's going to be good?

Why Judicial Deference Matters Now More Than Ever

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

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

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

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

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

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

Thankfully, Professor David Bernstein has called out this nonsense:

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

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

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

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

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

1.    National Federation of Independent Investors v. Sebelius

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

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

2.    Kennedy v. Louisiana

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

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

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

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

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

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

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

4.    Roe v. Wade

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

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

5.    Clinton v. New York

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

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

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

6.    Shelby County v. Holder

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

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

***

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

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

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

 

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

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

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

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

[5] Id.

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

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

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

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

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

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

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

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

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

The Hallmarks of a Great Appellate Brief

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

1.    Start strong and get to the point quickly.

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

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

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

2.    Focus on the facts.

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

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

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

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

3.    Adopt a more objective tone.

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

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

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

4.    Break the rules – sometimes.

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

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

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

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

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

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

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

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

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

Avoid making these and other mistakes at all costs.

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

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

Miranda Warnings Are A Right Without A Remedy

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 2-3. 

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

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

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

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

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

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

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

Id. at 33-34.

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

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part Two

Last month, I noted two April 8, 2022 federal Court of Appeal decisions on attorney sanctions where the courts reminded us claims of experience are no excuse for improper behavior.  I focused on the Fifth Circuit’s reminder:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  This month, I’ll discuss the Seventh Circuit’s order upholding $17,000 of sanctions against a “seasoned litigator” who balked at being required to complete “demeaning” CLE classes.  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022). 

Like the Fifth Circuit, the Seventh Circuit rejected an appeal of a sanctions order despite counsel’s claims of competence and experience.  Bovinett (7th Cir. Apr. 8 2022); see Debra Cassens Weiss, “Seasoned Litigator” Fails to Persuade 7th Circuit that Sanction Was Demeaning and Too Harsh, ABA Journal (Apr. 14, 2022).  In a Northern District of Illinois case involving use of an actor’s photo by advertisers, the district court initially dismissed many claims against the out-of-state advertisers for lack of personal jurisdiction.  Bovinett at 2.  Attorney Mark Barinholtz, representing the actor, then asserted the defendants had several contacts with Chicago, and the court “allowed the parties to take limited discovery about personal jurisdiction.”  Id. at 2-3.  The court “soon granted [a defendant’s] motion to compel discovery because [the actor’s] responses were vague and evasive.”  Id. at 3.  For example, Barinholtz “answered every request for admission by stating [the actor] was ‘not in possession of sufficient knowledge or information to admit or deny.’”  Id.  After the court entered an order compelling discovery, the actor, through Barinholtz, replied “only that [the actor] lacked ‘direct, in person knowledge’ of the subjects.“  Id.  In response, the court dismissed much of the complaint and eventually granted the defendants’ motions for sanctions.  Id. 

The district court found several grounds for sanctions, noting “Barinholtz appeared to have made false assertions to establish personal jurisdiction, [and e]ven if he did not do so in bad faith, . . .  Barinholtz inexcusably failed to investigate the jurisdictional facts.”  Id.  The court  “ordered Barinholtz to pay about $17,000 (much less than the defendants’ [$661,000] request) to compensate the defendants for time spent on the motions to compel and for sanctions.”  Id.  As the Seventh Circuit explained, the district court “also ordered Barinholtz to attend 40 hours of continuing legal education: half ‘on federal civil procedure, including at least one course related to personal jurisdiction,’ and half on “professional conduct, . . . such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.’”  Id. 

In response, Barinholtz moved for what he styled an extension of time either “to file notice of appeal and/or to request other post-order relief,” and the district court granted the motion in part, extending the time to appeal until October 13, 2020.  Id. at 3-4.  Barinholtz did not immediately file a notice of appeal, but filed an October 13, 2020 “motion to reconsider in which he focused on the merits of the lawsuit and his already-raised objections to sanctions.”  Id. at 4.   He again argued that the court had personal jurisdiction and claimed “Rules 11 and 37 did not permit sanctions in this context, [plus] sanctions were ‘unfair’ because the defendants and Bovinett had teamed up to get Barinholtz to pay costs and fees.”  Id. 

Notably, Barinholtz “also insisted that the defendants deserved sanctions,” based on the alleged “teaming up” against him, “and that requiring him, a seasoned litigator, to attend legal-education courses [was] demeaning.”  Id.  As the Seventh Circuit explained, he “requested a reduced monetary sanction (or none at all) and fewer hours of continuing education.”  Id.  The district court denied the motion to reconsider, finding “Barinholtz failed to identify any legal or factual error in the sanctions ruling and instead repeated previously rejected arguments.”  Id.  The court declined to address what it called “these ‘disheartening’ arguments” again, “and repeated that sanctions were warranted for his ‘egregious’ conduct.”  Id.  Barinholtz filed a notice of appeal within thirty days of the reconsideration order, but after October 13, 2020.

The Seventh Circuit opened its order by explaining Barinholtz “incurred sanctions for repeatedly asserting baseless claims and disregarding a court order. He moved, unsuccessfully, for reconsideration and then filed a notice of appeal . . . timely only with respect to the denial of the motion to reconsider.”  Id. at 1-2.  According to the court:  “[b]ecause [Barinholtz] timely sought and received an extension of time, his appeal was due October 13. But Barinholtz missed this deadline. And his motion to reconsider had no effect on his time to appeal sanctions.  Id. Accordingly, the notice of appeal filed after October 13 was only timely for the denial of the motion for reconsideration.  Id.

The court then reviewed “whether the judge unreasonably denied Barinholtz’s motion to reconsider sanctioning him,” finding no abuse of discretion.  Id. at 5-6.  The Seventh Circuit stressed “Barinholtz lacked a good reason for vacating the sanctions,” “did not cogently explain why his conduct was not sanctionable,” “did not demonstrate any mistake of law or fact in the sanctions order,” and also “provided no excuse or explanation—or apology—for his actions.”  Id. at 5.  For example, “he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against [a defendant] after it showed that it had no ties to Illinois.”  Id. 

According to the court, the trial “judge also did not err in rejecting Barinholtz’s argument that [the actor] ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs” because the “parties’ settlement agreement states that they must bear their own costs and fees.”  Id. at 6.  Instead, the “amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct.”  Id.

Finally, Barinholtz contended the court should have imposed “fewer than 40 hours of continuing legal education” based on his “decades of experience.”  Id.  However, the court reasoned “the requirement directly addresses the sanctionable conduct:  Barinholtz raised baseless allegations about [defendant’s Chicago] involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.”  Id.

Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.”  Cassens Weiss, “Seasoned Litigator.”  He explained he will probably seek rehearing and stated:  “In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances.”  Id.

I will keep you posted on any updates in this matter, and in the Fifth Circuit’s ruling in Scott.  In the meantime, both cases give us all excellent reminders about competent representation and  sanctions.

Will Dobbs (and Janus) Overrule Stare Decisis?

    Justice Alito’s draft opinion in Dobbs v. Jackson Women’s Health Organization has vast cultural implications for a country mired in starkly divisive political rhetoric. The leak of that opinion also undermines the Supreme Court’s institutional integrity at a time when the public’s trust in the Court was already at an all-time low. But there is another crucial and often overlooked way in which the draft opinion undercuts the Court’s prestige and the public’s reliance upon its opinions: the approach it takes to stare decisis.

    Justice Alito’s draft opinion devotes nearly 30 pages to a discussion of whether the doctrine of stare decisis—the concept that courts should generally uphold prior decisions rather than overrule them—requires following the Court’s 1973 decision in Roe v. Wade and it’s 1992 decision in Planned Parenthood v. Casey reaffirming Roe. Alito begins by offering a few platitudes on the importance of precedent and a list of examples where the Court has previously overruled despite the force of stare decisis. Alito then identifies the “factors” in the stare decisis analysis by relying upon his own recent opinion in Janus v. AFSCME. Just as I have previously predicted, Alito’s draft opinion demonstrates that Janus is now the new loadstar for a version of stare decisis so weak as to be practically meaningless.

    In his Janus opinion, Justice Alito created a new zenith in the “weak” stare decisis tradition. The weak tradition posits that “poor reasoning” in a prior decision is not merely a condition precedent to stare decisis analysis, but is also a substantive consideration in that analysis that may itself justify a reversal. That view stands in stark contrast with the strong version of stare decisis that led the Court to reaffirm Roe in Casey. Under that “strong” stare decisis tradition, a precedent, regardless of the quality of its reasoning, should stand unless there is some “special justification” to overrule it—including whether the precedent defies practical workability, is subject to special reliance interests, is a mere remnant of abandoned doctrine, or is based upon facts that have changed so significantly that the precedent’s rule is no longer applicable.

    Just the Janus opinion did, the draft opinion in Dobbs placed the substantive accuracy of the precedents—the “nature of the Court’s error” and the “quality of the reasoning”—as the first consideration for justices unsatisfied with a precedent. The draft Dobbs opinion then spends eleven pages decrying the reasoning of Roe and Casey, saving far shorter passages for discussions of traditional stare decisis factors like workability. Poor reasoning in a prior decision is thus more than just a reason to turn to stare decisis analysis; it is instead a sufficient condition to overturn decisions.

    The draft Dobbs opinion confirms that a precedent’s reasoning is the only factor that matters when it dismisses, in a little over two pages, society’s reliance interests in a half-century-old opinion. The opinion claimed there was a lack of concrete evidence of societal reliance on Doe and Casey, despite their decades-old vintage. Reliance interests, long the acme of stare decisis concern, thus play almost no role in determining whether to uphold a precedent.

    This elevation of the Janus approach to stare decisis is a grave danger to the stability of our legal system and the reliability of our courts. As I have argued before, poor reasoning provides an ever-present justification for overturning decisions. Conversations about stare decisis only arise, after all, when current Justices believe that a prior decision was substantively incorrect and might warrant a change of direction. Janus and the draft Dobbs opinion, however, tout a version of stare decisis that would be unable to settle disputes independent of the Justices’ views about the substantive correctness of a decision. This significantly undermines doctrinal stability, making it harder for the public to know and understand the law. It also undermines judicial legitimacy in a hyper-polarized society. And it may also undermine legal consistency as lower courts freely deviate from Supreme Court precedent that appears substantively incorrect.

    Arguably, this form of weakened stare decisis is itself so incoherent and unworkable that it could hardly be considered a doctrine at all. That lack of coherence may allow Justices to change their approach to stare decisis over time. A new Justice can begin her career by claiming fidelity to a weak stare decisis tradition that allows her to rapidly overrule cases with which she substantively disagrees, only to transition to a strong stare decisis tradition later in her career in an effort to protect her perceived gains from overrule by subsequent judicial generations. Such waves in stare decisis are intellectually inconsistent, as the Justice who ascribes to changing conceptions of stare decisis over time in fact ascribes to no real, binding version at all. Furthermore, the constant churn in legal doctrine would render stare decisis so malleable as to become meaningless, rendering all precedents vulnerable to overrule at any time.

    In the Dobbs draft opinion, Justice Alito is careful to note that the ruling does not threaten precedents that do not concern abortion. But the draft opinion suggests far more malleability in all forms of precedent than Alito’s assurances. The draft opinion perpetuates a weakened version of stare decisis that undermines the finality of any decision, at great risk to a politically divided nation.

May the record reflect...

On appeal, the record is your world. If it's not in there, it didn't happen in the appellate universe--even if it did happen in real life. Be sure you know when you start whose responsibility it is to ensure an adequate record on appeal (in federal court, both parties and the trial court have record-related duties; in some state courts, the appellant alone bears the burden). Knowing this can make the difference between winning and losing, because a presumption of regularity is going to attach--basically, an assumption that all went according to the law absent a record to the contrary--and fall on the party bearing the burden of ensuring record adequacy.

Often times, things happen in court that for some reason or other do not make it into the record--a sidebar conference is too muddled for the reporter or recording equipment to pick up; the exhibits are returned to the parties for some reason; a chambers conference doesn't get recorded or summarized on the record; etc. An unsophisticated practitioner will refer to those things in his brief without ensuring they are part of the record. Be aware that there are rules to help complete the record in situations like this (like Federal Rule of Appellate Procedure 10(c)-(e) or comparable state rules, see, e.g., Utah Rule of Appellate Procedure 11(h)). Some states also allow supplementing the record with facts that never happened in court, but bear on a discrete appellate issue like an ineffective assistance of counsel claim. But however your jurisdiction allows for it, be sure to follow the procedures rather than (as I've seen from time to time) attaching things as addenda to a brief and expecting that the court will consider them.

Appealing TROs: Some “Practical” Advice

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

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

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

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

Why Judicial Deference Matters

Public confidence in the United States Supreme Court is declining because many citizens believe that politics, not law, motivate the Court’s decisions.[1] That belief is not likely to improve, particularly as the Court prepares to issue decisions on abortion, the right to bear arms, and religious liberty, which may be decided by a single vote.

Part of the problem, aside from the fact that, on divisive social issues, the justices’ decisions so conveniently align with their policy predilections, is that the Court often gets involved when it should defer to the legislative and executive branches. Indeed, judicial deference can – and should – play a key role in preserving the Court’s legitimacy and in demonstrating that the Court is not a political institution.

A.    Cases where judicial deference was appropriate

Below are several examples of where the Court should have deferred to federal and state legislatures.

        1.    Clinton v. New York

In Clinton v. New York, Congress passed, and President George H. W. Bush signed, the Line Item Veto Act, which authorized the president to veto specific spending provisions in duly-enacted legislation to reduce unnecessary government spending.[2] The Act also gave Congress the authority to override by a majority vote the president’s line-item vetoes.

The question before the Court was whether the Act violated the Constitution’s Presentment Clause, which states in part as follows:

Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law.[3]

Based on this broad language, was the Line Item Veto Act unconstitutional? Well, it depends. Reasonable jurists can certainly study the historical record and the founders’ original understanding of the Presentment Clause and arrive at different conclusions. Given this fact, why did the Court get involved and, by a 6-3 vote, invalidate a law that both the legislative and executive branches agreed would reduce wasteful government spending and promote fiscal responsibility?[4]

            2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court considered whether a Louisiana law authorizing the death penalty for raping a child under the age of twelve violated the Eighth Amendment, which states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”[5]  Is it “cruel and unusual” to execute a person for raping a child under the age of twelve? Again, it depends – not on the Constitution’s text, but on a jurist’s subjective values. As with the Presentment Clause, you can certainly study the historical record and the founders’ original understanding of “cruel and unusual” and arrive at different conclusions. As such, why are nine unelected and life-tenured judges in a better position to make this determination than legislators in Louisiana? They aren’t – and that is the point.

But that didn’t stop the Court from intervening and, in a 5-4 decision, invalidating the law. Writing for the majority, Justice Anthony Kennedy stated that the determination of whether a punishment is “cruel and unusual” depended on “evolving standards of decency that mark the progress of a maturing society,” and on the Court’s “reasoned judgment.”[6] In other words, the Court can reach whatever decisions it wants, based on whatever its members feel at the time.

            3.    Citizens United v. FEC

In Citizens United v. FEC, the Court invalidated legislation that restricted corporations, labor unions, and other associations – within sixty days of a general election and thirty days of a primary – from making an “electioneering communication.”[7] The legislation’s purpose was to prohibit corporations and other entities from using money to influence federal elections (and primaries) and thereby gain unfair access to elected officials.[8]

The question before the Court was whether this legislation violated the First Amendment, which provides in relevant part that Congress “shall make no law … abridging the freedom of speech.”[9] Based on this broad language, was the legislation unconstitutional? The answer certainly doesn’t depend on the Constitution’s text.

Indeed, equally persuasive arguments can be made for and against the legislation’s constitutionality. As such, why did the Court get involved and, in a divisive, 5-4 decision, invalidate legislation that had the salutary objective of reducing undue influence in the electoral process? Put differently, why should the Court intervene to invalidate duly enacted legislation when the Constitution does not compel such a result, and where, as in Citizens United, doing so undermines equal participation in the democratic process?

To make matters worse, in reaching this decision, the Court overturned its decision only twenty-three years earlier in Austin v. Michigan Chamber of Commerce, where the Court held that Congress may restrict corporate expenditures to reduce the distorting effects of corporate wealth on the marketplace of ideas.[10] The Court’s decision to overrule Austin suggested that the Constitution’s meaning depends on the ideological and policy predilections of its current members and that constitutional meaning reflects those predilections.

The Court should have minded its own business and never intervened.

            4.    Shelby County v. Holder

In Shelby County v. Holder – another 5-4 decision – the Court invalidated two provisions of the Voting Rights Act even though: (1) the Senate had voted unanimously to re-authorize these provisions; (2) neither the Constitution’s text (in Shelby, the Tenth, Fourteenth, and Fifteenth Amendments) nor the Court’s “congruence and proportionality” test arguably compelled this result.[11] Once again, why did the Court get involved?

            5.    National Federation of Independent Investors v. Sebelius – Chief Justice John Roberts Gets It Right (albeit in a disingenuous                            way)

In National Federation of Independent Investors v. Sebelius, Chief Justice John Roberts embraced judicial deference when voting to uphold the Affordable Care Act’s constitutionality.[12] Let’s be honest: Chief Justice Roberts’ reliance on Congress’s taxing power probably wasn’t due to his sincere belief that the individual mandate penalty was a proper use of that power. Rather, Chief Justice Roberts likely believed that invalidating the Act would tarnish the Court’s institutional legitimacy.

As a result, Justice Roberts deferred to the coordinate branches, stating that “[p]roper respect for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”[13] Chief Justice Roberts’ decision is somewhat ironic because his desire to preserve the Court’s institutional legitimacy – and avoid the perception that politics motivate the Court’s decisions – has arguably led Roberts to reach decisions based on his subjective view of how the public will react to a decision rather than on a principled interpretation of the law. Put simply, it appears that Chief Justice Roberts is no longer an umpire.[14]

            6.    Roe v. Wade – and the ugliness of substantive due process

Nowhere is deference more appropriate than where the Constitution is only subject to one interpretation. This was precisely the case in Roe v. Wade, a decision so untethered to the Constitution’s text that even Justice Ruther Bader Ginsburg could not bring herself to support the Court’s reasoning.[15]

The Fourteenth Amendment to the United States Constitution provides in relevant part that “No state shall … deprive any person of life, liberty, or property, without due process of law.”[16] Thus, the Due Process Clause is a procedural guarantee; it ensures that the state cannot arbitrarily and unfairly deprive citizens of life, liberty, or property.

Where in this language can a right to abortion be found? Nowhere – no matter how hard you look. As such, the Court should have left the decision of whether to permit abortion to the states – and the democratic process.

But that didn’t happen. And the path that the Court took to create a right to abortion made no sense whatsoever.

Specifically, in Griswold v. Connecticut, the Court held that the Constitution contained invisible “penumbras” that enabled the Court to unilaterally identify unenumerated rights – regardless of whether the Constitution’s text could support creating these rights.[17] This approach, known as “substantive due process,” states that the word “liberty” in the Due Process Clause encompasses certain unenumerated rights that are so essential to liberty that no process could justify their deprivation. In other words, the Court held that it could create whatever rights it wanted, even if the Constitution’s text provided no support for the creation of these rights.

Based on that flawed reasoning, the Court in Griswold held that the Fourteenth Amendment’s text miraculously contained an unenumerated right to privacy. And the Court in Roe – in a “raw exercise of judicial power,” – held that the so-called right to privacy was “broad enough” to encompass a right to abortion.

This isn’t a joke.

It actually happened.

It’s not surprising that conservative and liberal scholars have almost uniformly condemned the reasoning on which Roe was based. As Professor John Hart Ely stated:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers’ thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation’s governmental structure. . . . And that, I believe . . . is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.[18]

Indeed, even Justice Ruth Bader Ginsburg believed that Roe was far too sweeping, such that “it seemed to have stopped the momentum on the side of change.”[19] Likewise,  Harvard Law Professor Laurence Tribe stated that “one of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[20]

If there was ever an issue where the Court should have deferred to democratic choice, it was on abortion. The fact that it didn’t should trouble citizens of all political persuasions. When you look to the Court, rather than the democratic process, to create new unenumerated rights, you give the Court the power to impose its will on an entire nation regardless of constitutional constraints. The risk in doing so is that, when the Court’s members change, so too may the rights that the Court previously deemed fundamental. A perfect example is Dobbs v. Jackson Women’s Health Organization, where a conservative majority may limit, if not eliminate, the right to abortion. As they say, the chickens have come home to roost.

That’s what happens when you ask the Court to decide unilaterally what should be decided democratically.

B.    Basing decisions on underlying purposes is an invitation to subjectivity and arbitrariness

It makes no sense to argue that, in the face of constitutional ambiguity, the Court should examine the underlying purposes of a particular provision to discern constitutional meaning. A purpose-driven analysis is an invitation to subjectivity, bias, and arbitrariness. To be sure, most constitutional provisions have multiple – and broad – purposes that judges can construe differently. As Justice Scalia stated, basing a decision on the broad (and often multiple and conflicting) purposes of a constitutional provision leaves judges “out to sea” where nothing but subjectivity reins – as it does in those “penumbras” that the Court in Griswold invented to create an unenumerated right out of thin air.[21]

Of course, the Court does have the power to say “what the law is,” and in some instances, the Court should not defer when faced with constitutional ambiguity, particularly where rights are inferable from the Constitution’s text.[22] For example, it’s certainly reasonable to conclude that the right to counsel implies the right to effective assistance of counsel, and that the right to free speech implies the right to association.[23] However, there are also instances where unenumerated rights are not readily inferable from the text, or where different but equally plausible interpretations of the text are possible.  That was the case in Clinton, Citizens United, and Kennedy (and a host of other cases). And in Griswold and Roe, no honest jurist could claim that the right to privacy and abortion, respectively, were inferable from the Due Process Clause. What’s more, in Washington v. Glucksberg, the Court held that the Fourteenth Amendment’s Due Process Clause did not encompass a right to assisted suicide.[24] So the Fourteenth Amendment protects the right to terminate a pregnancy but not the right to terminate your own life when, for example, you have Stage Four pancreatic cancer. This is what happens when judges base their decisions on little more than subjective values and gift wrap their policy preferences in dishonest legal analysis.

The Court should remember, as Chief Justice Roberts emphasized, that “[p]roper respect for a coordinate branch of the government requires that we strike down an Act of Congress only if the lack of constitutional authority to pass [the] act in question is clearly demonstrated.”[25] The Court should adopt the same approach when interpreting the Constitution’s text. To be sure, human beings do have natural rights that exist independently of and should not be limited by governments or constitutions. That doesn’t mean, however, that the Court should have the power to identify those rights. If it did, there would be no limits on the Court’s power.

We live in a democracy. That gives the people, not philosopher kings, the right to participate in the democratic process and create laws from the bottom up. When the Court interferes with these processes and makes decisions that lack any reasonable basis in the Constitution’s text, it undermines democracy and liberty, and erodes the Court’s institutional legitimacy.

Simply put, the Constitution does not give nine unelected and life-tenured judges the right to define “one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” or to define “liberty in its spatial and in its more transcendent dimensions.”[26] That right belongs to the people.

 

[1] See Hannah Fingerhut, Low Public Confidence in the Supreme Court as Breyer Retires (January 27, 2022), available at: Low public confidence in Supreme Court as Breyer retires - ABC News (go.com)

[2] 524 U.S. 417 (1996).

[3] U.S. Const., Art. I, Sec. 7, Cl. 2 and 3.

[4] 524 U.S. 417.

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

[6] 554 U.S. 407 (2008); Trop v. Dulles, 356 U.S. 86 (1958).

[7] An “electioneering communication” was defined as a “broadcast, cable, or satellite communication that mentioned a candidate within 60 days of a general election or 30 days of a primary.”

[8] 524 U.S. 417.

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

[10] 494 U.S. 652 (1990).

[11] 570 U.S. 529 (2013).

[12] 567 U.S. 519 (2012).

[13] Id. (emphasis added).

[14] See Katarina Mantell, The Umpire of the Court – Biography and Judicial Philosophy of Chief Justice John G. Roberts, available at: The Umpire of the Court - Biography and Judicial Philosophy of Chief Justice John G. Roberts, Jr. (shu.edu)

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

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

[17] 381 U.S. 479 (1965); Steven H. Aden, Roe v. Wade Was An Abuse of Discretion, Exercise in Raw Judicial Power (October 30, 2013), available at: Roe v. Wade Was an "Abuse of Discretion," Exercise in Raw Judicial Power - LifeNews.com

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

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

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

[21] 381 U.S. 479 (1965).

[22] Marbury v. Madison, 5 U.S. 137 (1803).

[23] See Strickland v. Washington, 466 U.S. 668 (1984).

[24] 521 U.S. 702 (1997).

[25] 567 U.S. 519 (2012) (emphasis added).

[26] Planned Parenthood v. Casey, 505 U.S. 833 (1992); Lawrence v. Texas,  539 U.S. 558 (2003).

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One

As a legal writing professor, I often blog about appellate work for new attorneys or law students.  For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience.  On April 8, 2022, the Fifth Circuit reminded an experienced attorney:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.”  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).  Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts.  This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.

In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time.  Scott (5th Cir. Apr. 8, 2022).  Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022).  Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims.  He failed to do so, “assum[ing]” permission to file equaled filing.  Scott at 2.  Scott then missed the deadline for any additional amended complaints.  Id. at 3.  Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims.  Id.  When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues.  Id.  “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.”  Id.  Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.”  Id. at 4.

Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating:  “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.”  Id.  Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys.  Id.; see Cassens Weiss, 5th Circuit.  Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.”  Id. at 5.

The Fifth Circuit began its opinion:  “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.”  Id. at 1.  The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.”  Id. at 2.  The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be.  Id. at 4, 6.  The court concluded:  “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.”  Id. at 6.

I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time.   Until then, happy drafting. 

A Few Thoughts on Ketanji Brown Jackson

The United States Senate should confirm Ketanji Brown Jackson to the United States Supreme Court. Judge Jackson unquestionably possesses the requisite qualifications, experience, and character.

Robert Bork should have been confirmed too.

And Brett Kavanaugh was rightly confirmed.

The same is true for, among others, Sonya Sotomayor, Elena Kagan, Amy Coney Barrett, Neil Gorsuch, Samuel Alito, and John Roberts.

Why?

Because disagreement with a nominee’s interpretive philosophy (e.g., originalism or living constitutionalism) or disagreement concerning how a nominee might rule on specific legal issues (e.g., abortion) should never be a legitimate basis upon which to reject a nominee. Rather, the focus should be on a nominee’s qualifications, experience, and character, with particular emphasis on a nominee’s judicial temperament.

Sadly, however, the confirmation process has devolved into a political and ideologically-driven soap opera that bears little resemblance to reason, objectivity, or fairness, and that has politicized the Supreme Court and undermined its (and Congress’s) institutional legitimacy. And some legal scholars – and politicians – have contributed to the problem by often basing their support or opposition on whether a nominee’s perceived political views comport with their policy predilections.

How sad, and shameful.

***

Ketanji Brown Jackson’s hearings underscored how politicized, divisive, and, quite frankly, ridiculous the confirmation process has become. To be clear, Judge Jackson is eminently qualified to serve on the Court – and a person of great character and integrity. She graduated from Harvard University and Harvard Law School. She clerked for Justice Stephen Breyer. She is a respected judge on the United States Court of Appeals for the District of Columbia and the American Bar Association determined, as it did with Justices Kavanaugh and Barrett, that she was “well qualified” to serve on the Court.

But these facts didn’t stop the confirmation hearing from devolving into a political circus.

For example, Senator Marsha Blackburn asked Judge Jackson to define ‘woman.’[1] Senator Ted Cruz questioned Judge Jackson regarding her views on critical race theory, and whether she agreed with the views espoused in Ibram X. Kendi’s book, “Antiracist Baby.”[2] Whatever one’s views on critical race theory, questioning Judge Jackson on this issue was inappropriate – and entirely irrelevant. Also, Senators Tom Cotton and Lindsey Graham attempted to characterize Judge Jackson as too lenient on sex offenders (a claim that was quite misleading and inaccurate).[3] And Senator Cory Booker, who, while objecting to Brett Kavanaugh’s confirmation, declared that “this is the closest I’ll get to an ‘I am Spartacus’ moment,” delivered an impassioned speech that seemed a bit too contrived and inauthentic – a criticism that has plagued Booker for years.[4]  

Despite this nonsense, Judge Jackson performed admirably at the confirmation hearing and her testimony raised no issues concerning her qualifications, experience, or character, particularly her judicial temperament. As such, the Senate should confirm Judge Jackson.

Unfortunately, however, the hearings were only one component of this political soap opera.

***

What’s equally disheartening is the predictable behavior of some scholars who often support or oppose a nominee based solely on ideology.[5] Their support or opposition is not based upon the nominee’s qualifications, experience, or character, but on whether they believe that a particular nominee will reach outcomes that they support. As Ilya Shapiro explained when discussing Robert Bork’s failed nomination:

When Justice Lewis Powell unexpectedly announced his retirement in June 1987, it set the stage for what people already recognized was a pivotal moment in the fight for the Supreme Court. The Robert Bork nomination represents the moment when the scales fell from conservative eyes over what they perceived were unfair tactics in defeating a nominee who would finally, finally, start reversing the activism of the Warren and Burger Courts. And not because the nominee was perceived as unqualified, unethical, too much of a crony or assorted parochial concerns that had sunk nominees in the past. This was purely about ideology.[6]

Such an approach is intellectually dishonest and contributes to politicizing the rule of law and the Court, and to undermining these scholars’ credibility. Indeed, some law professors at Notre Dame (and approximately 5,000 lawyers) signed a letter opposing Amy Coney Barrett’s confirmation to the Court, citing reasons so flimsy and ideologically-driven (i.e., they didn’t like the outcomes that they speculated Barrett would reach on certain issues) that it begged the question of whether they truly embraced ideological diversity and eschewed the politicization of the confirmation process.[7] Unfortunately, when law students witness their professors supporting or opposing nominees based on ideology, it sends the message that ideology trumps intellectual honesty (and the rule of law), and that implicit (or explicit) biases trump impartiality. Put simply, disagreeing with a nominee’s political views or the outcomes that a nominee may reach in particular cases is no reason to oppose that nominee’s confirmation.

As they say, elections have consequences.

To be clear, it’s certainly appropriate to reject a nominee based on their judicial temperament, but not based on their judicial philosophy. I vehemently disagree, for example, with living constitutionalism, which I believe is a fundamentally dishonest and outcome-driven approach to constitutional interpretation. But that disagreement would never cause me to oppose a nominee. The real question should be whether a nominee’s rulings – particularly those with which you disagree – are based on a reasonable interpretation of a constitutional provision or statutory text (even if you disagree with that interpretation). In other words, are such rulings legally defensible? Do they reflect a good-faith effort to interpret text, precedent, and history, or do they evince a desire to reach outcomes that comport with a nominee’s policy predilections? If the latter, that would be a reason to oppose a nominee. But opposing a nominee because you disagree with their interpretive philosophy, opinion of Roe v. Wade, or support for “substantive due process” is unwarranted and unfair.

***

Finally, the confirmation process should be about the nominee as an individual, not as a member of a group. While increasing the Court’s diversity is a vital and laudable objective, President Biden made a mistake when he indicated that he would only consider nominating a Black woman. President Biden should have simply nominated Judge Jackson because she is eminently qualified and incredibly accomplished. She has impeccable character. In short, her qualifications, experience, and character are second to none.

And as stated above, Robert Bork, who was also incredibly accomplished, should have been confirmed.

Likewise, Brett Kavanaugh was rightly confirmed, as Senator Susan Collins argued in her speech supporting Kavanaugh’s confirmation.[8]  

The same is true for Justices Sonya Sotomayor Amy Coney Barrett, Neil Gorsuch, Elena Kagan, Samuel Alito, and John Roberts. What reasons – besides those reflecting ideology, bias, and politics – justified voting against any of these nominees? None.

Remember the days when the United States Senate confirmed Antonin Scalia by a vote of 98-0 and Ruth Bader Ginsburg by a vote of 96-3? Both were among the most outstanding justices in the Court’s history and their confirmation enjoyed bipartisan support. They were also friends, which shows that you can disagree with someone and still maintain a healthy relationship.

Judge Jackson deserves bipartisan support too. The time has come to stop politicizing the confirmation process and the Court. She should be confirmed.

 

[1] See Myah Ward, Blackburn to Jackson: Can You Define ‘The Word Woman’? (March 22, 2022), available at: Blackburn to Jackson: Can you define ‘the word woman’? - POLITICO.

[2] See Dani Di Placido, Ted Cruz’s Bizarre ‘Antiracism Baby’ Tirade Backfires (March 24, 2022), available at: https://www.forbes.com/sites/danidiplacido/2022/03/24/ted-cruzs-bizarre-antiracism-baby-tirade-backfires/.

[3] See Linda Qiu, Critics of Jackson’s Child Sex Abuse Sentences Backed Judges With Similar Records (March 25, 2022), available at: Critics of Jackson's child sex abuse sentences backed judges with similar records - The San Diego Union-Tribune (sandiegouniontribune.com).

[4] See, e.g., Chris Smith, He Seems So Hammed Up: Cory Booker Battles Rivals Who Say He Has An Authenticity Problem (January 25, 2019), available at: “He Seems So Hammed Up”: Cory Booker Battles Rivals Who Say He Has an Authenticity Problem | Vanity Fair.

[5] For example, 850 female law professors signed a letter supporting Justice Jackson’s nomination. But only a fraction of that number supported Amy Coney Barrett. Why? Ideology.

[6] Ilya Shapiro, The Original Sin of Robert Bork (September 9, 2020), available at: The Original Sin of Robert Bork | Cato Institute. (emphasis added).

[7] See, e.g., Susan Adams, Hundreds of Notre Dame Faculty Sign Letters Opposing Amy Coney Barrett Nomination (October 14, 2020), available at: Hundreds Of Notre Dame Faculty Sign Letters Opposing Amy Coney Barrett Nomination (forbes.com); Alliance for Justice, 5,000+ Lawyers Sign Open Letter Opposing Amy Coney Barrett SCOTUS Nomination, (October 9, 2020), available at: 5,000+ Lawyers Sign Open Letter Opposing Amy Coney Barrett SCOTUS Nomination — AFJ.

[8] See Brit McCandless Farmer, Why Susan Collins Votes “Yes” on Brett Kavanaugh (October 7, 2018), available at: Why Susan Collins voted “yes” on Brett Kavanaugh - 60 Minutes - CBS News.

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

Oral Argument Prep While Managing Life Too: Make a One-Sheet and Keep Your Sense of Humor

My first-year students participated in a traditional 1L moot court competition this week, making their first oral arguments.  As I helped guide the students through this rite of passage, I answered many anxious questions about content, presentation style, appropriate “court suit” fashion, and more.  In answer, I stressed the need to be prepared and flexible, and most of all, to enjoy the process.  My overall advice:  make a one-sheet, place the sheet in an organized binder to support a professional and successful argument, and don’t buy a new suit just for an argument.   

I stress the one-sheet because it worked for me.  Also, as a former state and federal appellate law clerk, and then an appellate specialist for years, I saw many oral arguments fail over lack of preparation and complicated podium notes.  Instead of fancy folders or notes, I suggest  students distill the argument to one piece of paper.  The process of making this one-sheet, in law school and practice, requires advocates to know their record and case law very well, and to create argument summaries taking no more than a sentence or two.  Plus, even if you drop one piece of paper, you can quickly pick it up and continue, unlike scattered index cards or multi-page notes. 

As part of my preparation to teach the one-sheet approach to oral argument this year, I once again read many blogs and articles to see if I could add any new advice.  I found a very helpful ABA Journal piece which perfectly summarized my appellate practice life before full-time teaching.  In A Working Mother's 32-Step Guide to Preparing for Oral Arguments, author, law professor, and former Dean Sarah Gerwig-Moore provides a humorous and helpful discussion of oral argument, especially the concerns of being an advocate, mother, and woman in an appellate court setting.  See ABA Journal, Nov. 18, 2019,

https://www.abajournal.com/voice/article/a-working-mother-prepares-for-oral-argument

I suggested my students read Gerwig-Moore’s piece, and many told me the humor helped them keep their argument preparation in perspective.   

Given how much my students enjoyed Gerwig-Moore’s 32-steps, I am also sharing them here.   Gerwig-Moore explained her preparation for a Spring 2019 law clinic oral argument in the Supreme Court of Georgia “that would decide an important question regarding the scope of issues cognizable in habeas corpus proceedings.”  See id.  As so often happens, her “oral argument coincided with a truly insane week or two of sports and other obligations for [her] sons.”  She explained, “[s]ometimes you just have to laugh to keep from crying. And—just as in baseball—there’s no crying in court.”  Id.

Here is Gerwig-Moore’s lighthearted summary of her oral argument preparation:

1. 1. 1. Reread all briefs and entire case record, making notes and highlighting.
      2. Reread all laws cited. Realize you might need the full 150-year history of the statute—ask team to track that down. As they’re researching this, realize the milk in your refrigerator might be 150 years old.
      3. Reread every case cited in all briefs and make notes. Ask your team to create charts of cases and facts so you can see each one at a glance. Make sure to ask very nicely.
      4. Slice up your brief for the first draft of an outline.
      5. Slicing up the brief reminds you to slice up food. Your children need to eat. Cook dinner! Leave dishes in the sink.
      6. Question absolutely everything—even your own name. Stay up too late.
      7. Wake up too early. Wonder if dark circles under your eyes make you look too shrill. Consider buying undereye concealer.
      8. Decide on a few key record items you will need to memorize. Make breakfast for children while reciting these. Scowl when sons remark that this isn’t fun. Consider smiling more with record recitations. Scowl again.
      9. Let at least three people down. (These are likely to be close friends or family members.)
      10. Anticipate questions from the bench. Arrange mock arguments with colleagues who don’t mind insulting you. Consider inviting archrivals, too. Or your teenage offspring. They’ll definitely insult you.
      11. Feed pets. Feed children. Eat leftovers. Deposit dishes in the sink.
      12. Moot the argument. Send follow-up assignments to team. Thank team! Donuts are a good way to thank people! Consider bringing some donuts to work but then forget.
      13. Consider wardrobe. Pantsuit? Skirt suit? Dress? Clothes should be flattering—but not too flattering. It should be comfortable—but not too comfortable. Assess work shoes to decide which will help you see over the podium but not actually tip you over in court. Don’t even get started on all the ways you can mess up your hairstyle strategy.
      14. Simultaneously wish you were both much, much taller and much, much smaller (see musing above re: shoes).
      15. Reread everything.
      16. Hem your suit—and I am not making this up—while on a conference call, while sitting in your car watching your son play lacrosse.
      17. As you are sewing, notice your nails haven’t been done in months. Wonder how many people will actually notice your hands. Resolve not to be too demonstrative with hands while in court.
      18. Do all your other work and errands and at least one ridiculous extra thing (can you say “homemade” cookies for your kid’s class, anyone?) you committed to months ago.
      19. Try to see the case from opposing counsel’s perspective. Consider adopting this tactic with your children, but then (metaphorically) hit them with the ol’ “Because I said so.”
      20. Check in with client.
      21. Buy the best lipstick your credit card can handle. This is unquestionably Pirate by Chanel. Case closed. (See what you did there?)
      22. Be serious but not too serious. Be confident but not too confident. Be yourself but not too much of that either (e.g., suit sleeves should cover your justice tattoos).
      23. Eat one vegetable. Make children eat two vegetables. Pat self on back for being health guru.
      24. Reread everything. Condense argument down to a one-pager.
      25. Ponder a twist on the Dorothy Parker classic: Justice makes spectacles of women in spectacles (which cause issues with limited peripheral vision). Decide to wear contact lenses.
      26. Read notes from team. Wax philosophical on the notion that all team members are working with the same richness of the experience of your work.
      27. Whiten teeth. Sharpen fangs. Consider optics of fangs. Stow them in a tiny pocket right next to your heart.
      28. Reread everything.
      29. Decide you hate your suit. Wish that suits of armor were still a thing.
      30. No—not sigh—breathe.
      31. Reread everything. Boil down outline to one word and the dancing woman emoji.
      32. Set four alarm clocks. Or is it alarms clock?

Id.  Gerwig-Moore added a fun postscript, and if you want to know how the argument ended, please check out her article. 

I wish you all great oral arguments, with one-sheets and humor as your guides. 

Appellate Oral Argument Tips

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

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

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

1.    Begin by addressing the weaknesses in your argument.

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

Appellate judges aren’t stupid.

They know the law.

They know the record.

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

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

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

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

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

Justice Scalia: That proves absolutely nothing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This needs no explanation.

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

 

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

Skipping the Intermediate Appellate Court

            Some states permit direct appellate review by the state’s highest court in cases where a matter presents a serious opportunity to develop, change, or clarify the law. Where an issue is unresolved, a state or federal statute was declared unconstitutional, or the applicable law is obsolete or unclear, the procedure permits a high court the discretion to take the case, bypassing the intermediate appellate court, and address the question presented. The same may be true for matters of great public significance or where the precedent that will be set will likely govern other cases percolating through the system.

            Despite the many bases for direct appeals, they remain rare and should be used by practitioners sparingly. Direct appeals often have different time requirements and different procedures. Counsel considering a direct appeal needs to pay close attention to the grounds and process when undertaking such an appeal. Counsel must also consider whether seeking review in the intermediate appellate court might provide a good opinion that might enhance the chances for success in the higher court.

            It also helps to have a good sense of the higher court. Unlike other courts that sit in panels, a state’s highest court will usually sit en banc, rather than in a random panel, particularly when the issue qualifies for direct appeal. Knowing who will consider the case allows counsel to review past relevant decisions by those very justices. Knowledge of the justices’ expressed views on the issue’s importance, preferences for what qualifies for direct appeal based on prior rulings, and their familiarity with the underlying issue can help determine when to undertake such a “Hail Mary” by aiming straight to the end zone.

            Also rare, but possible, are direct appeals from a district court to the U.S. Supreme Court. In a recent grant of certiorari in Students for Fair Admissions v. University of North Carolina, No. 21-707, the Court took that case directly from a district court decision, likely because it raised the same issues as the Court chose to hear in a similar action involving Harvard University. The grant of certiorari relied on 28 U.S.C. 1254(1), which allows the Court to grant a petition for a writ of certiorari to review any case that is in the court of appeals, even if that court has not entered a final judgment. See, e.g., United States v. Nixon, 418 U.S. 683, 692 (1974). Under the Supreme Court Rule 11, a petition seeking direct review of a district court decision “will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”

            Despite that warning that certiorari before judgment is available only sparingly, Professor Steven Vladeck found that the UNC case marked the fourteenth time since February 2019 that the Court has granted a “before judgment” petition. Before that date, it had been fourteen years since the Court last used the procedure. Does this mean that cert before judgment will become more commonplace? There is no reason to assume that that will be the case. Although the Court has shown a greater interest in taking hot-button issues quite recently, we have also had a slew of justices expressing a concern that they are being view as too political. The upshot of those observations, especially once some of these controversial decisions come down, is that the Court is likely to return to take a more low-profile approach to choosing its docket, even if decisions tend to encourage new doctrinal overlays on familiar controversies. On the other hand, the Court could offset its growing use of the “shadow docket” by relying more heavily on cert before judgment to obtain a fuller review of cases.

            If cert before judgment does become a more prominent approach to review in the Court, it may well spawn similar approaches in the states. Although skipping the intermediate court is a more normal procedure in many states, and it would go against the grain of West Virginia newly adopting an intermediate appellate court, it is likely that state supreme court will find the expanded use of the procedure worth a further look.