Saturday, January 28, 2023
In recent years, the concept of implicit bias – the belief that all individuals harbor unconscious biases that affect their choices and actions – has been embraced by many law schools and the American Bar Association. In fact, the ABA passed a resolution requiring law schools to provide some type of bias training. But there is one problem – implicit bias research is deeply flawed and, in fact, so flawed that its validity is now in question. Below is a summary of the flaws in implicit bias theory.
1. The Implicit Association Test (IAT) is deeply flawed.
The IAT, developed by researchers at Harvard University, purports to measure an individual's implicit biases. The problem is that there is little, if any, evidence that IAT scores actually measure unconscious bias. As one scholar states:
The IAT is impacted by explicit attitudes, not just implicit attitudes, . . . It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?
Furthermore, individuals who take the IAT are likely to achieve different scores if they take the IAT multiple times. One commentator explains as follows:
The IAT, it turns out, has serious issues on both the reliability and validity fronts, which is surprising given its popularity and the very exciting claims that have been made about its potential to address racism” … That’s what the research says, at least, and it raises serious questions about how the IAT became such a social-science darling in the first place.
Indeed, “much murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, [and] (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior.” To be sure, Tony Greenwald, who co-created the IAT, acknowledged that the IAT should not be used to predict biased behavior, stating that the IAT is only “good for predicting individual behavior in the aggregate, and the correlations are small.” Put simply, the “IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.”
2. There is insufficient evidence that implicit bias – or results on the IAT – predicts biased behavior.
Empirical studies suggest that implicit biases do not necessarily cause biased behavior. As one commentator explains:
Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, ‘produce a challenge for this area of research.’
Importantly, these researchers examined “63 studies that explicitly considered a link between changes in bias and changes in actions . . . [but] they found no evidence of a causal relationship.”
3. There is no way to quantify the impact of implicit bias on biased behavior, particularly given the presence of explicit biases.
Assuming arguendo that implicit bias exists, there is no reliable way to quantify its relationship to biased behavior, if such a relationship even exists. For example, how can one distinguish between explicit and implicit biases? And how can scholars quantify or measure the impact of implicit biases when explicit bias has a demonstrable relationship to biased behavior?
These and other issues have led some scholars to question the validity of implicit bias as a predictor of biased behavior: As one scholar states:
Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.
Resolving these issues in an intellectually honest manner is critical to determining whether implicit bias bears any relationship to biased behavior.
4. Implicit bias training is ineffective.
Not surprisingly, implicit bias training is not effective in reducing biased behavior. For example, a study in the United Kingdom concluded as follows:
[A] 2017 meta-analysis of 494 previous studies of racial sensitivity training programmes found that ‘changes in measured implicit bias are possible, but those changes do not necessarily translate into changes in explicit bias or behaviour’. The Equality and Human Rights Commission published its findings in 2018, stating that ‘the evidence for [unconscious bias training’s] ability effectively to change behaviour is limited’ and that it may cause a ‘backfiring’ effect, actually making people more biased. And last year the Chartered Institute of Personnel and Development (the UK’s main HR professional body) said ‘unconscious bias training has no sustained impact on behaviour’.
Indeed, “while implicit bias trainings are multiplying, few rigorous evaluations of these programs exist,” the fact remains that “to date, none of these interventions has been shown to result in permanent, long-term reductions of implicit bias scores or, more importantly, sustained and meaningful changes in behavior (i.e., narrowing of racial/ethnic clinical treatment disparities."
Of course, these facts have not stopped the American Bar Association from requiring law schools to conduct training on implicit bias, a proposal that was rightfully met with resistance from established scholars. Perhaps this is because most law faculties are so overwhelmingly liberal that groupthink, rather than critical thinking, precludes a principled assessment of implicit bias’s validity.
Without such an assessment, claims that implicit biases impact biased behavior will continue to lack empirical support. As such, the efficacy of implicit bias training remains dubious.
Ultimately, eradicating bias and discrimination from all facets of society is a legal and moral imperative, but scholars should question seriously whether a focus on alleged implicit biases is an effective way of doing so. And in so doing, scholars should be committed to intellectual honesty to ensure that their own biases do not influence their findings.
 Lee Jussim, 12 Reasons to be Skeptical of Common Claims About Implicit Bias (March 28, 2022), available at: 12 Reasons to Be Skeptical of Common Claims About Implicit Bias | Psychology Today
 See Adam Lamparello, The Flaws of Implicit Bias and the Need for Empirical Research in Legal Scholarship and in Legal Education, available at: The Flaws of Implicit Bias -- and the Need for Empirical Research in Legal Scholarship and in Legal Education by Adam Lamparello :: SSRN.
 See The Spectator, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator
 Harvard Embraces Debunked ‘Implicit Bias’ Test that Labels You a Racist, (Jan. 22, 2020), available at: Harvard Embraces Debunked 'Implicit Bias' Test that Labels You a Racist (mixedtimes.com)
 German Lopez, For Years, This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All, VOX (Mar. 7, 2017, 7:30 AM), https://www.vox.com/identities/2017/3/7/14637626/implicit-association-testracism (quoting New York University Professor James Jaccard).
 Tom Bartlett, Can We Really Measure Implicit Bias? Maybe Not, CHRON. OF HIGHER EDUC. (Jan. 5, 2017), https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.
 Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Not, WASH. UNIV. IN ST. LOUIS NEWSROOM (Aug. 1, 2019), https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/
 Lee Jussim, Mandatory Implicit Bias Training Is a Bad Idea, PSYCH. TODAY (Dec. 2, 2017), https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
 Lewis Feilder, The Dangers of Unconscious Bias Training (Aug. 15, 2020), available at: The dangers of unconscious bias training | The Spectator
 See Tiffany L. Green & Nao Hagiwara, The Problem with Implicit Bias Training Aug. 28, 2020), available at: The Problem with Implicit Bias Training - Scientific American
 See, e.g., Karen Sloan, U.S. Law Students to Receive Anti-Bias Training After ABA Passes New Rule (February 14, 2022), available at: U.S. law students to receive anti-bias training after ABA passes new rule | Reuters
 See Michael Conklin, Political Ideology and Law School Rankings: Measuring the Conservative Penalty and Liberal Bonus, 2020 U. Ill. L. Rev. Online 178, 179 (2020) As Professor Conklin explains:
It was not until 2015 that a robust analysis of law school ideological diversity was published (hereinafter “2015 study”). Before this, it was already well known that law school professors were disproportionately liberal—both when compared to the public at large and when compared to the overall legal profession. A study using 2013 data found that only 11% of law school professors were Republicans, compared to 82% who were Democrats. Not only do conservatives find it difficult to gain admittance into legal academia, but those who do find that they are effectively barred from the more prestigious topics, such as constitutional law and federal courts, and are instead relegated to topics such as law and economics.
 See Green and Hagiwara, supra note 12.
Saturday, January 14, 2023
One of the criticisms of law schools is that they do not adequately prepare students for law practice.
In law school, students learn legal doctrines, acquire critical thinking, argumentation, and persuasive writing skills, master IRAC/CRAC, and participate in clinics – all of which help students to obtain the knowledge and skills needed to successfully practice law. But for many years, lawyers and judges have criticized law schools for not producing practice-ready graduates, citing, among other things, graduates’ substandard persuasive writing skills, inexperience in drafting real-world legal documents, and lack of ‘soft’ skills. This criticism, as underscored by graduates at many schools, has some merit, although law schools certainly do their very best, within a limited time of three years, to provide students with the skills to practice law competently upon graduation.
Below are a few tips for students regarding what to expect – and the skills needed – when practicing law.
1. Learning to work with other people – including those you don’t like – is critical to your success.
In the legal profession – and in life – you are going to encounter people that you despise. Such individuals are not hard to identify and there are many of them in all facets of the legal profession. They typically display inflated egos, treat others disrespectfully, lack trustworthiness, have narcissistic tendencies, and are so self-absorbed that they cannot possibly appreciate an opposing argument or perspective. Nobody likes these people. Invariably, however, you will almost certainly have to work with them – or for them – in your legal career.
And when you do, the worst thing that you could do is become combative, disrespectful, or dismissive. Doing so will only hurt you – and empower them. Instead, focus on what you can control, such as your work product, your responses to their behavior, and your demeanor. If you do that and, as such, learn to work with difficult people, you will increase your value and reputation. So don’t focus on how others behave or be consumed with external circumstances over which you have no control. Focus on how you behave and conduct yourself.
2. Confidence and humility are critical to developing strong relationships with your colleagues.
Confidence matters in the legal profession.
But humility matters too.
Regardless of whether you graduate at the top of your class at Harvard, serve as your law review’s editor-in-chief, or publish in the Yale Law Journal, you will face a steep learning curve when you begin practicing law. Recognizing that – and being willing to learn from and listen to your more experienced colleagues – is essential to developing strong relationships with them and mastering the skills necessary to practice law at the highest levels. Thus, being courteous, respectful, and professional is vitally important if you want to cultivate a reputation as a good lawyer – and a good person.
In other words, personality matters. If you are a jerk who gossips about or criticizes your colleagues, boasts about your class ranking or LSAT score, or treats assistants like they are second-class citizens, you will not get very far. If you think that you are ‘right’ all the time or are overly opinionated, most people will despise you. Simply put, don’t be a jerk – the world is already saturated with them, and nobody wants to associate with those types of people. Rather, be authentic, humble, and respectful.
3. Your reputation and credibility – particularly with your colleagues and judges – are vital to your success.
Reputation and credibility are everything in the legal profession. If you lose your credibility, you lose your ability to garner the trust of your client, your colleagues, or judges. When your reputation or credibility is compromised, your career is likely irreparably damaged.
Accordingly, make sure, for example, that you work diligently to produce an outstanding work product. Always be honest, particularly when you make a mistake. Treat your clients, your adversaries, and judges with respect and civility. Be ethical and professional. And most importantly, be a nice, authentic, and decent person. As stated above, nobody likes jerks.
4. Excellent persuasive writing skills are essential.
If you cannot write persuasively, you cannot practice law effectively. Thus, at the beginning of and throughout your legal career (and life), focus on continually developing your persuasive writing skills. In so doing, read outstanding legal briefs and legal writing textbooks. Take the time to thoroughly rewrite and edit your work. Read great fiction books and apply literary techniques to your briefs where appropriate. Ask for feedback from more experienced colleagues about your writing. After all, two or three semesters in legal writing classes, while helpful, is not nearly enough to develop outstanding persuasive writing skills. Learning to write persuasively is a lifelong lesson and one that you should embrace if you want to be a great lawyer.
5. Outstanding communication skills are critically important.
Interpersonal communication, whether with a client, an adversary, or a court, is integral to your success as a lawyer. If you cannot, for example, clearly articulate arguments and explain complex legal concepts in an understandable way, you aren’t going to be successful.
Thus, you must know, among other things, how to present an argument concisely, clearly, and persuasively. You must understand that how you say something is just as important as what you say. You must actively listen to and respect others’ opinions. You have to show empathy and compassion for your client. You need to be skillful in negotiating with your adversary, present your argument in a way that convinces others to adopt your position, and have the judgment to know when compromise is appropriate.
6. Law practice is stressful and can be all-consuming.
The legal profession is often quite stressful. Indeed, at times, the pressure can be all-consuming, such as when preparing for a trial, writing motions and briefs, reviewing voluminous discovery documents, or preparing to argue before an appellate or supreme court. Indeed, practicing law is far from glamorous, as many days and hours are spent reviewing documents and filing motions. Put simply, there’s a reason why many lawyers struggle with alcohol or drug abuse, or mental health issues. The legal profession is difficult and there is no way around that fact. If you are working in a large or medium-sized firm, your billable hours matter. Whether you can attract clients matters. Whether you win matters.
But that doesn’t mean that you have to become the legal profession’s next alcoholic or drug addict. It does mean, however, that you have to prepare yourself for this reality. In so doing, learn how to cope with stress and adversity. Organize your day and prioritize your tasks. Take care of your physical and mental health, such as by exercising every day, eating healthy, and reserving some time – even if only for an hour – to do something that you enjoy. Spend time with family and friends. And realize that you’re probably not going to change the world, that justice is truly subjective, and that life is going to present far more adversity than you expected. But if you can help your clients to achieve positive results, live a meaningful life, and find happiness, then the law is a profession that can have a noble purpose.
 See, e.g., David Segal, What They Don’t Teach Law Students: Lawyering (Nov. 19, 2011), available at: After Law School, Associates Learn to Be Lawyers - The New York Times (nytimes.com)
Sunday, January 8, 2023
As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.
We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.
Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration. He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”
That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.
Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.
The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.
 Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).
Sunday, December 25, 2022
Thinking about a holiday-appropriate topic to write for Christmas, the false claims that there is a war on the holiday came to mind. Attempts to acknowledge the holiday but preserve the secular nature of a government that neither advances nor inhibits religion, gave us the two-reindeer rule. The “rule” comes from the 1984 case of Lynch v. Donnelly, where the city of Pawtucket, Rhode Island, had long sponsored a display in a shopping district. That consisted of a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," reindeer pulling a sleigh, and a creche.
In rejecting a challenge to the display based on the Establishment Clause by a 5-4 vote, the Supreme Court held it to be a holiday display, rather than advocacy of a religious message. The Court treated the items featured as advancing the historical origins of the holiday and considered that to provide "legitimate secular purposes." The most religious item in the display, the creche, passively connected to the holiday “like a painting” in a government museum, the Court said. The nearby display of reindeer and a sleigh, it went on to say, were secular symbols that conveyed “a friendly community spirit of goodwill in keeping with the season.” Derisively, the ruling was dubbed the “two-reindeer” rule because, according to a predominant reading of the case, adding two reindeer to an otherwise religious display transformed it into something secular.
Interestingly, modern attitudes toward Christmas have changed substantially. In 1659, Massachusetts had a law called the “Penalty for Keeping Christmas,” that stated:
For preventing disorders arising in several places within this jurisdiction, by reason of some still observing such festivals as were superstitiously kept in other countries, to the great dishonor of God and offence of others, it is therefore ordered by this Court and the authority thereof, that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon such accounts as aforesaid, every such person so offending shall pay for every such offence five shillings, as a fine to the country.
The law reflected the thought that making this deeply religious day into a festival brought “great dishonor” to God and reflected Puritan attitudes about Christmas. Puritans believed that celebrating Christmas entailed wasteful activities and social excess that were both immoral and antithetical to Christian beliefs. Fourteen years before the Massachusetts law came into being, the English Parliament promulgated a “Directory for Public Worship” that treated so-called festival days, including Christmas, as periods of private contemplation and not celebration. By 1677, English law flipped, and it became illegal for any ”person whatsoever to do or exercise any worldly labour, business or work of their ordinary callings” on Christmas Day.
Recalling these transformations of attitudes in an appellate advocacy blog serves only to show that even deeply religiously held convictions can change, much as the law itself demonstrates a capacity to develop in sometimes unpredictable ways – and advocacy assumes a significant role in the law’s development.
Still, however you celebrate, enjoy the holiday, and I wish you a happy new year.
 Lynch v. Donnelly, 465 U.S. 668 (1984).
Saturday, December 17, 2022
2022 Top Legal Terms Include “Complicit Bias,” “False Narrative,” and “Nuclear Option,” According to Burton’s Legal Thesaurus
Happy December! Whether you are scrambling to finish grading, like me, or wishing for a holiday with no emergency writs or motions, I hope you are enjoying the many lists of odd and interesting things lawyers did in 2022. Recently, I saw the newest edition of Burton’s Legal Thesaurus, the Fortieth Anniversary/Sixth Edition, and the editors have added some intriguing new terms as top legal phrases in 2022.
For example: “Attorneys were busy discussing ‘complicit bias,’ arguing about ‘lawfare’ and discussing the ‘great reshuffle’ this past year, according to Burton's Legal Thesaurus, which released its list of 2022's top new legal terms.” Karp, “Meme Stock,” “Quiet Quitting” Among Top New Legal Terms, Law360 (Dec. 13, 2022). “Complicit bias” means “community complicity in sustaining institutional bias and harassment in the workplace.” See Michele Goodwin, Complicit Bias: Sexual Harassment and the Communities that Sustain It, Huffington Post (Dec. 11, 2017) (credited with creating this new term).
Other neat new terms include “False Narrative” and “Nuclear Option.” “False narrative” is a noun, according to Burton’s, and unsurprisingly means: “a contrived story, artifice,” and “distortion of truth.” Burton’s confirms the political root of “nuclear option,” defining it as a noun meaning “abolish the filibuster, change in voting, change to majority vote for passage in the US Senate,” or “drastic action, extreme action.” In a recent Sixth Circuit case showing one way lawyers are using the term, the court found no abuse of discretion where the district court “allowed [a party] to introduce its [opponents'] threats to stop shipping parts into evidence and to compare those threats to a ‘nuclear option.’” Stackpole Int'l Engineered Prods. v. Angstrom Auto. Grp., LLC, 52 F.4th 274, 284-85 (6th Cir. 2022).
Burton’s contains over 3,000 pages of definitions, but Debra Cassens Weiss summarized some other new items from Burton’s 2022 Top Ten list, including: “‘Lawfare,’ meaning the use of legal proceedings to damage an adversary; [t]he ‘Great Reshuffle’ a variation of ‘Great Resignation,’ referring to people leaving jobs; [and] ‘Movement law,’ an approach to legal scholarships that works with social movements, rather than simply studying them.” Cassens Weiss, 'Complicit bias' and 'lawfare' among top new legal terms in 2022, ABA Journal (Dec. 14, 2022). Cassens Weiss also explained: “Margaret Wu, a legal writing professor at the University of California at Berkely School of Law, is chair of the Select Committee on Terminology of Burton’s Legal Thesaurus,” and “Wu told Law360 . . . ongoing effects of the COVID-19 pandemic, “sea changes” at the Supreme Court, diversity and equity initiatives and technology” influenced this year’s terms.
In its pitch for Burton’s Sixth Edition, LexisNexis explains: “As Justice William O. Douglas penned in his 1979 foreword to Burton’s Legal Thesaurus, ‘[t]he root of all language is individual word. Often, it is the use of a specific word or term upon which a case or controversy may hinge. It is through the use of such a tool as the Legal Thesaurus that one may find the precise term to fit the nuances of a particular situation.’” Whatever resources you use to find perfect words this month, I wish you happy writing and happy holidays.
Friday, December 16, 2022
The goal of law school should be to prepare students to practice law competently and advocate persuasively upon graduation. Below are suggestions that will help to maximize students’ success in the legal profession.
1. Use the Socratic Method.
Some legal scholars have, for a variety of reasons, criticized the Socratic method. Such criticism, however, lacks merit.
The Socratic method teaches preparation. It requires students to learn how to read cases. Additionally, it requires them to discuss these cases in class, often before a large audience. In so doing, students are often confronted with difficult legal and policy questions, which tests their preparation, communication skills, and ability to think on their feet – all of which are essential to being a competent lawyer. That’s why doctrinal courses, particularly in the first year, are so important.
Furthermore, the Socratic method helps students cope with anxiety and uncertainty. Indeed, most students do not know if their professor will call on them in class and, of course, have no idea what questions the professor will ask. Although this may engender anxiety and fear among students, that is not necessarily a bad thing. In law practice, attorneys face anxiety and uncertainty when litigating a case or preparing an oral argument before an appellate court. Helping students to cope with these feelings in a healthy manner is essential to preparing them to succeed in law and in life.
Certainly, if used improperly, such as to embarrass students, the Socratic method can be counterproductive. And the Socratic method alone is not sufficient to prepare students for law practice. But when used responsibly, the Socratic method is an essential component of legal education.
2. Expand the legal writing curriculum.
Many law schools do not devote sufficient time to training students to be competent legal writers in the real world. For example, some schools only require two semesters of legal writing, in which students draft only a legal memorandum and an appellate brief.
But in law practice, students will not only draft memorandums and appellate briefs. They will be required to draft, among other things, complaints, contracts, motions to dismiss, motions for summary judgment, interrogatories, document requests, and requests for admissions, trial briefs, mediation statements, and settlement agreements. Given this fact, law schools should train students to draft and re-draft the most common litigation and transactional documents; in so doing, students will be more prepared to practice law when they graduate.
In fact, imagine if, over three years, students were required to represent a hypothetical client in a litigation that contains issues from all of their first-year required courses, and that required them to, among other things, conduct a client interview, draft a complaint and answer, file a motion to dismiss, draft discovery documents, conduct depositions, draft a motion for summary judgment and a trial brief, participate in a trial, and draft an appellate brief. And imagine if they had to do so in the order that it would occur in practice. That would truly prepare students to practice law, and it would teach students to learn by doing.
More broadly, law schools should focus on developing their students’ writing skills, such as in classes devoted to editing, rewriting, and revising, and requiring students to draft legal documents in a variety of contexts. Doing so takes time, and certainly more than two or three semesters.
3. Require students to enroll in at least two clinics.
Law students do not learn how to practice law by memorizing legal principles and regurgitating them on an exam. They learn by, among other things, applying the law to hypothetical and real-world fact patterns, addressing counterarguments effectively, reconciling unfavorable law and facts, and crafting compelling factual and legal narratives. Perhaps most importantly, they learn by practicing like lawyers, namely, representing clients, drafting briefs, performing oral arguments, negotiating with adversaries, and exercising judgment about trial strategy and settlement.
Clinics provide law students with the opportunity to acquire these and other real-world skills, and often in a context that makes a meaningful difference in the lives of individuals who might otherwise lack access to legal representation.
For these and other reasons, law schools (and some already do) should require students to enroll in at least two clinics prior to graduation. After all, the only way to prepare for practice is to actually practice law (under supervised conditions, of course).
4. Require students to take multiple upper-level practical skills courses.
Most law schools give students the freedom to select most of their upper-level courses. This is certainly understandable, as students are interested in different areas of the legal profession and intend to pursue different paths in law practice. Having an elective-heavy curriculum, however, need not dispense with a focus on practical skills instruction, and theory and practice need not be considered mutually exclusive.
The problem with some upper-level electives is that they have no relationship to practice. For example, courses focusing on comparative jurisprudence, the original meaning of the Privileges and Immunities Clause, or the death penalty, are certainly instructive and probably quite enjoyable. But how do they prepare students for law practice? At the very least, such courses should include practical components, such as the drafting of a complaint, motion, or brief, to merge theory with practice.
After all, in medical school, students are not taking courses on the origins of contraception. They are learning how to practice medicine. Law students, too, should learn how to practice law.
5. Use “high-pressure” assignments.
The legal profession is demanding and stressful. Partners and clients have high expectations. And in many instances, lawyers are under intense pressure to produce high-quality work under severe time constraints. Indeed, many lawyers can relate to the unfortunate and all-too-common situations (often on a Friday afternoon or holiday weekend) where a partner says, “I need you to draft a motion for injunctive relief immediately and, at the latest, by Monday morning.”
For that reason, law schools should train students to excel under and cope with pressure and high expectations. For example, in upper-level courses, a professor can present students with a distinct legal question and require them to draft a memorandum or prepare for an oral argument within twenty-four hours or require them to draft a response to a motion to dismiss within forty-eight hours. Sure, this will be stressful for the students, but that’s not necessarily a bad thing. Training students about the realities of law practice will help them to become better lawyers, and to develop the mindset and mental toughness necessary to excel under pressure.
6. Focus on developing the intangibles, or soft skills.
A high IQ, an excellent LSAT score, a perfect law school GPA, or the best score on the MBE does not mean that a law graduate will be successful in law or in life. Rather, to be a good lawyer, you need the intangibles, or soft skills, that complement raw intelligence.
For example, great lawyers have emotional intelligence. They work harder than almost anyone. They have excellent judgment. They are efficient and organized. They can handle adversity and criticism, and persevere through difficult times. They know how to cooperate and collaborate with other people, including those that they do not like or who have different viewpoints. They know how to communicate with a colleague, a client, and a court. They are humble and honest. They have empathy. And they want to win.
Without the intangibles or soft skills, law graduates will likely not find success in the legal profession – or in life. As such, law schools should focus on developing the intangibles, and this can be accomplished in, for example, clinical courses, where students are required to be part of a team and represent clients in actual cases.
7. Focus on mindset development – and mental toughness.
In the legal profession and in life, students will encounter substantial and unexpected adversity. They will face unfairness and injustice. They may have to deal with the death of a family member or friend, an abusive colleague, the break-up of a relationship, or an unexpected medical emergency. These and other events, although we all hope to avoid them, will happen.
But law students are not victims. They are not oppressed. They are not powerless. Rather, they have the power – and the choice – to overcome whatever adversity they face because their choices, not their circumstances, determine their destiny.
Of course, as with developing intangible or soft skills, teaching mindset and mental toughness does not necessarily require a separate course. Rather, these lessons can be incorporated into any law school course by a professor who devotes a little time in each class to the mental, not merely the intellectual, aspect of law.
8. Have high standards.
It’s important to have empathy and compassion for students, and to support them in every way possible as they navigate the difficulties of law school. But that does not mean coddling students, which is one of the worst things an educator can do, or dispensing with high – even very high – standards. Challenging students to be their very best, offering constructive criticism, and demanding excellent work is the hallmark of a great teacher. And invariably, students will fail to meet these expectations. But failure is good thing. It presents students with an opportunity to learn and grow. Most importantly, high standards prepare students for what they will face in the real world.
9. Teach students to respect diverse viewpoints.
Diversity is a critical component of any educational institution. And among the most important aspects of diversity is teaching students to respect different viewpoints and engage in civil discourse with those with whom they disagree.
For that reason, professors should create a safe and constructive classroom environment in which all viewpoints are welcomed and respected, and where a diversity of perspectives is encouraged. One of the worst things that educators can do is to reveal their political and personal biases in a classroom (and worse, try to ‘indoctrinate’ students) because doing so stifles debate and diversity.
After all, in the real world, students will encounter – and have to work with – people that they disagree with, that they don’t like, and that have backgrounds and experiences entirely different from their own. If they cannot work with and respect such individuals, and realize that their views aren’t necessarily ‘right,’ their path to success – and humility – will be much harder.
Ultimately, traditional legal education is not broken. The Socratic Method has served students very well over the years. But a few adjustments can be made to ensure that theory and practice merge in a cohesive manner that prepares students to think and practice like lawyers, and to be good people.
Sunday, November 13, 2022
Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.
In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.
The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.
The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.
The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.
The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.
Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.
Sunday, November 6, 2022
It’s certainly no secret that we live in very partisan and polarizing times. But the reasons for such polarization border on the ridiculous.
Indeed, citizens often cannot reasonably and respectfully disagree on matters of public importance, such as abortion, immigration, or education. Additionally, the media, whether it be CNN, Fox News, or MSNBC, has devolved into little more than a partisan enterprise that vilifies anyone with whom it disagrees, and that eschews true intellectual debate (and common sense). What’s more, the rhetoric of our politicians, both Republican and Democrat, has become so divisive, simplistic, and, quite frankly, dishonest, that any attempt to engage in reasonable discourse is futile. And the United States Supreme Court has contributed to the problem; the meaning of the Constitution seems to depend more on the composition of the Court rather than a reasonable interpretation of its text. In essence, the credibility of many public figures who once inspired trust has vanished as they have unapologetically exposed their personal and political biases.
These factors, among others, have compromised citizens’ confidence in our institutions, in the political and electoral process, and in the ability to disagree on issues of law and policy while maintaining civility and respect. And such factors, not Donald Trump or Joe Biden, is the true threat to a viable and sustainable democracy.
Why is this happening? Below are a few reasons – and suggestions to restore a minimal level of maturity and common sense to public discourse.
1. The prevalence of groupthink
Groupthink is one of the biggest impediments to a meaningful exchange of truly diverse perspectives. In academia, for example, particularly at law schools, the faculty are overwhelmingly liberal. This is not to say that the views of these professors – or liberals generally – lack merit. It is to say, however, that when you surround yourself with and continually hire people who mostly think like you, opposing perspectives seem so foreign and ‘wrong’ that it precludes meaningful discourse and discourages people from offering diverse viewpoints. Anyone who is a law professor that admires Justice Antonin Scalia – and originalism – will certainly relate. And anyone who has been on the receiving end of students trying to shout you down because you are offering a perspective with which they disagree will likewise relate
2. A lack of humility – and the failure to admit that you might be wrong
Not everything is about you.
If you’re so self-absorbed that you cannot see past yourself and empathize with others, you cannot form true human connections, make an impact on others’ lives, or make meaningful improvements in your own life. Sadly, inflated egos and narcissistic personalities are prevalent in society, and such people – and personalities – are incredibly toxic. These people almost always think that they are ‘right’ on every issue. They ignore inconvenient facts. They cherry-pick data and evidence to suit their narratives. They hurl insults at those with whom they disagree. Put simply, they cannot fathom the possibility that maybe, just maybe, their views are inaccurate, incomplete, or incorrect. When a person thinks like that, reasonable discourse is impossible. And the truth is that no one is necessarily right about everything – or anything. It takes humility to listen more and talk less, and to realize that we all have much to learn about life and the law.
3. Immaturity and weak mindsets
It’s amazing how many adults behave like children.
People have different experiences. They come from different backgrounds. They were raised in different environments. They have often suffered unique traumas and disadvantages. These and other experiences shape a person’s values and worldview which, while invariably different from others, are no less worthy of respect. In other words, not everyone thinks like you. And if you had grown up in their shoes, you probably wouldn’t think the way you do now.
So, grow up. The fact that others have different opinions does not make them wrong. It does not make them bad people. It does not make them immoral or invidious. It just makes them different. And difference is the essence of diversity.
For example, if someone is pro-life, it doesn’t automatically mean that they have no respect for a woman’s bodily autonomy or liberty. If someone is pro-choice, it doesn’t mean that they sanction the killing of human life. It just means that they have different perspectives, which are informed by their personal experiences, including family upbringing and the overcoming of adversity. If someone voted for Donald Trump, it does not mean that the person is racist or unintelligent. It just means that they are different from you and those differences resulted substantially from, among other things, the environment in which they evolved. As stated above, if you grew up in their shoes, your opinions and worldview might be far different from the ones you have now.
If you take offense to or discriminate against those who have different opinions, then it is you who is the enemy of diversity.
Life is difficult. It is unfair. It is unjust. People can be terribly critical and judgmental, and they are often the ones who espouse the very virtues (e.g., tolerance and acceptance) that they lack. But not every criticism is undeserved, and not every experience of unfairness or injustice is unbearable.
Successful people have strong mindsets. They have a positive thought process. They are mentally tough. They know how to respond to adversity. They realize that your choices, not your circumstances, determine your destiny. They don’t make excuses. They focus on what they can control, and they do not get distracted by external ‘noise.’ In short, they have thick skin while simultaneously treating others with kindness and empathy.
5. The inability to listen and the unwillingness to learn
So many people just cannot shut up.
These folks often cringe or come quite close to a nervous breakdown when they confront opinions, facts, or evidence that undermine their subjective policy predilections or expose their personal biases. The inability to listen, however, only ensures the impossibility of engaging in respectful and meaningful discourse. Having listening skills is critical to building successful professional and personal relationships, and to creating an environment of mutual respect.
So, start listening more. You might learn something.
6. Vilifying people personally because you disagree with them politically
It’s shocking how people resort frequently to personal attacks to demean and degrade those with whom they disagree. And it’s alarming how many people embrace simplistic narratives and dichotomies such as ‘good’ or ‘bad’ or ‘right’ or ‘wrong.’ Reality is far more complex and often resides in a gray area where no one can claim a monopoly on truth. If you have even the semblance of self-awareness, a modicum of maturity, and an ounce of humility, you know that attacking someone personally based on differences in opinion reflects insensitivity and intellectual dishonesty.
For example, people who supported Justice Brett Kavanaugh’s nomination are not necessarily vile sexists. People who supported Donald Trump are not necessarily ignorant racists. People who support Alexandria Ocasio-Cortez are not necessarily socialists. Likewise, people who support affirmative action do not necessarily believe in ‘reverse discrimination,’ and people who oppose affirmative action are not necessarily racist or privileged. They are just people who think differently than you. They are no better – and no worse.
In the end, our similarities and shared values far outweigh our differences, and the failure to embrace those similarities and respect those differences is corrosive to any society that values liberty and equality.
So, the next time you’re in a faculty meeting, a board meeting, a debate at a bar, or a discussion in a classroom, be open to new perspectives. Choose to truly embrace diversity.
Tuesday, November 1, 2022
From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?
Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.
Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.
However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding our Constitution.”
Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.
We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.
There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.
Sunday, October 16, 2022
Appellate decisions may decide a dispute between opposing parties and articulate a rule of law, but they often create new issues that can flood the courts. The Supreme Court’s newly energized reliance on history and tradition, rather than balancing tests and levels of scrutiny, has opened the door to arguments that that previously had little chance of success. And, advocates, unsurprisingly, have shown no hesitation to take up the cudgel now available to them.
Take the new attacks on gun regulations. At the end of last term, in New York St. Rifle & Pistol Ass’n v. Bruen, the Supreme Court struck down New York’s 1911 law that required proper cause or special need to obtain an unrestricted gun license. It held that the Second Amendment, no less than any other constitutional right, does not require the demonstration of a special need to justify its exercise. Instead, regulations and restrictions on guns had to fit within historical traditions. Under that approach, the 6-3 majority stated in an opinion by Justice Thomas, “sensitive places,” like courthouses and polling places, might legitimately impose restrictions on carrying firearms, but the urban character of a place could not. Public safety considerations, the opinion established, do not outweigh the constitutionally recognized right.
As predictably as night follows day, other gun regulations came under attack as inconsistent with historical traditions. Courts have now struck down a variety of gun regulations. For example, in Firearms Policy Coalition, Inc. v. McCraw, a Texas law prohibited persons under twenty-one from carrying a gun off their premises except in limited situations. The district court, which stayed its decision pending appeal, held that the “Second Amendment’s text, as informed by Founding-Era history and tradition, . . . protects [18-to-20-year-olds] against this prohibition.” The court reasoned that the Second Amendment included no textual age restriction, the historical analogues that Texas produced to meet its burden to uphold the law lacked the necessary specificity, and that examples from the 19th century failed because they were not from the founding era.
A federal law that restricted handgun purchases to those under indictment for crimes that involve at least one year of imprisonment suffered a similar fate when a federal judge found insufficient evidence that it “aligns with this Nation’s historical tradition.” In United States v. Quiroz, the court acknowledged “valid public policy and safety concerns,” but found the Bruen’s historical tradition analysis swept those aside.
In New York, a federal judge limited New York’s post-Bruen statute that attempted, among other things, to define “sensitive” or “restricted” locations” by declaring unconstitutional its application to places that lacked historical precedent. In Antonyuk v. Hochul, the court struck down restrictions that applied to summer camp, public transportation, places of entertainment or amusement where alcohol is served, Times Square, and a generally defined sensitive or restricted places.
To this list, in the past week another decision came down. In United States v. Price, a federal district court struck down the federal law that prohibits possession of a firearm with an altered, obliterated, or removed serial numbers because it lacked historical analogue. The court notes that it is “undisputed that serial numbers were not required, or even in common use, in 1791,” but came into effect only with the mass production of firearms. Even then, serial numbers became mandatory only after passage of a 1968 federal law. Those facts were determinative under Bruen’s mandatory mode of analysis.
These examples demonstrate the limited value of the type of rigid analysis adopted by the Court. Even so, an advocate pressing an issue cannot forego utilizing the Court’s new-found fondness for historical tradition when advancing arguments under other constitutional provisions. And, under that approach, settled law can become unsettled. It may even be a form of malpractice to accept precedent not based on historical conventions without making new arguments that place the advocate’s position within that accepted tradition. Welcome to the new world of constitutional appellate advocacy.
Saturday, October 8, 2022
As the United States Supreme Court begins a new term, its approval among the public is alarmingly low. 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. 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. 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.” 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."
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.
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. 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. 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. 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.
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. 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. 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.”
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. 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.
 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)
 No.19-1392, 597 U.S. , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf
 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
 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)
 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).
 567 U.S. 519 (2012).
 554 U.S. 407 (2008).
 558 U.S. 310 (2010).
 572 U.S. 183 (2014).
 410 U.S. 113 (1973); 381 U.S. 479 (1965).
 524 U.S. 417 (1998).
 U.S. Const., Art. I, Section 7.
 570 U.S. 529 (2013).
October 8, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, October 2, 2022
Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.
In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.
Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.
The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.
Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.
Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.
If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”
Sunday, September 18, 2022
Quite appropriately, Moore v. Harper, the upcoming Supreme Court case that tests the validity of the “independent state legislature” theory, has set off alarm bells about the future of democracy in the United States. The theory holds that state legislatures hold exclusive authority to make decisions about congressional elections, unless overridden by Congress, based on the Constitution’s Elections Clause, Article I, Section 4, Clause 1. The Clause designates Congress and the states as holding responsibility to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” Restrictions on state legislative authority imposed by a state constitution, including judicial enforcement of equal voting and non-discrimination mandates, the theory holds, must give way, rendering the state legislative determinations immune from judicial review, under the theory. When combined with Article II, Section 1, which assigns the manner for appointing presidential electors to state legislatures as well, the election denialism that has become a standard feature of the Trump political era could gain a permanent constitutionally blessed footing, potentially allowing state legislatures to overturn voters’ choices and name its majority party’s candidates the winners.
Today, however, one day after the Constitution’s 235th anniversary, my topic is not how the “independent state legislature” theory realizes Justice Robert Jackson’s fear that the courts would read the Constitution in such a rigid insensible way that it becomes a “suicide pact.” Instead, I want to focus on the North Carolina legislature’s use of history to support its argument as petitioner in the case. Given the originalist outlook that dominates the Supreme Court, it is unsurprising that parties appeal to history to support their desire outcome. What separates this brief from the usual attempt to invoke history, is its reliance on a widely debunked document to advance its cause.
The Petitioner’s opening brief tells the Court not to look at James Madison’s Virginia Plan for how to conduct federal elections because it is silent on the issue. Instead, it invokes the “alternative ‘Pinckney Plan,’” which contains remarkably similar language to what the Constitution says and is denominated in the brief as the “progenitor” of the Elections Clause. Because no other document that the Committee of Detail may have reviewed contained any plan similar in kind, the brief calls the Pinkney Plan confirmation of a deliberate choice to cede authority to the legislature.
The brief overlooks the fact that the original Pinckney Plan did not survive the Constitutional Convention and is lost to history. In a new article in Politico, Ethan Herenstein and Brian Palmer of the Brennan Center for Justice, explain that the “Pinkney Plan” is actually an 1818 draft by Charles Pinckney that was a revisionist attempt to claim more credit for the Constitution than Pinckney deserved. As Herenstein and Palmer put it, during the Constitutional Convention, the records show that “the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.” They go on to cite James Madison’s reaction as “perplexed” by the document Pinckney released in 1818 “because he was ‘perfectly confident’” the new document “was ‘not the draft originally presented to the convention by Mr. Pinckney.’”
Madison noted that the similarity of language to the Constitution’s final text could not have been part of a plan at the Convention because framers hammered out its wording through long running internal debates that would not have occurred if a plan had already spelled them out. Moreover, Pinckney’s well-known positions at the Convention were at odds with what he now claimed to have proposed. For example, at the Convention, Pinckney argued that state legislatures should elect members of the House, but his 1818 document purports to show he favored popular election.
Herenstein and Palmer assert that “nearly every serious historian agrees that the 1818 document is a fake.” They quote historian John Franklin Jameson’s statement in 1903 that the so-called draft was “so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Another researcher they quote called it “the most intractable constitutional con in history.”
Substantial additional support exists to doubt the veracity of the Pinckney Plan. Madison suggested that Pinckney rewrote his own plan weaving in passages from the Constitution, and that the intervention of 30 years made Pinckney’s memory of what was his and what was not flawed. Others put it less kindly. Historians, more than a century ago, described the document as a “pseudo draft” that “should be relegated to the depository of historical lies.” Clinton Rossiter’s respected history of the Constitutional Convention written in 1966 simply dubbed it a “fraudulent document.”
The reason the 1818 document exists is because Congress overrode the Framers’ own decision to keep their deliberations secret. President Monroe dispatched Secretary of State John Quincy Adams to assemble the records. While he found mention of a plan by Pinckney, no such document existed. He asked Pinckney for a copy, In Pinckney’s response, he claimed to have four or five drafts of the Plan but did not know which most accurately reflected his original plan and how much his re-writes changed the plan as his own views had changed over time. The Petitioner’s brief recounts none of this history, but instead treats the document as authoritative.
Every state has adopted the Model Rules of Professional Conduct, which requires candor to the tribunal. It prohibits a lawyer from making “a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer.” The lack of candor in this brief may violate the Rule.
Will there be consequences to the use of this document or a failure to suggest its questionable providence? I doubt it. Will a member of the Court or even a majority cite it as authoritative as the petitioner has? Unfortunately, that seems likely. In responding to the historical basis for the end-of-the-term abortion decision in Dobbs v. Jackson Women’s Health Org., the American Historical Association and the Organization of American Historians expressed dismay that their amicus brief’s description of the relevant history was not taken “seriously” and that the Court instead “adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years.” Similarly, in SCOTUSblog, Saul Cornell, a Fordham University historian, called the history relied upon by the majority in the Second Amendment case of New York State Rifle & Pistol Association v. Bruen, “a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation.”
Regardless of whether these assessments are over-the-top or shaded by a predisposition on the underlying issue, the concern that history is manipulated to achieve an end applies with greater force to the courts. Even as strong an advocate of originalism as Justice Scalia was worried that selective use of past events could predominate because “history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.” The danger is not just that an important issue is settled by a skewed view of history. It is also that the re-written history appears in an authoritative text that now controls future precedent and even the nature of future issues as though settled.
If, for example, a majority of the Court were to rely on Charles Pinckney’s 1818 document as reflecting what the framers of the Constitution might have thought, not only could they reach the wrong result, it would create an even greater schism in this country on the essential form of our republic, reading the Constitution as mandating what would surely be a suicide pact. And when a future, indisputably valid election is overturned, the courts may have nothing to say about the legislative coup that took place.
More trivially, another consequence would be to achieve the project that Charles Pinckney set for himself: a revision of history that would make him the true father of the Constitution – and a title he did not desire as the Constitution’s grim reaper.
 Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).
 Ethan Herenstein and Brian Palmer, “Fraudulent Document Cited in Supreme Court Bid to Torch Election Law,” Politico Mag. (Sept. 15, 2022, available at https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810.
 9 The Writings of James Madison 553-54 (Gaillard Hunt ed., 1910).
 Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. Rev. 421, 479 n.39 (2009).
 Id. (quoting Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966)).
 Id. (citing Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 The Records of the Federal Convention of 1787, at 427-28 (Max Farrand ed., 1911).
 Model R. of Prof. Conduct 3.3.
 Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).
 History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians (July 2022), available at https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).
 New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).
 Saul Cornell, Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/.
 Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).
Sunday, July 10, 2022
In the play and movie, Amadeus, Mozart proudly debuts one of his new compositions for the emperor. The emperor's verdict took Mozart by surprise. The composition was fine, the emperor intoned, but it suffered from "too many notes.” In providing some "helpful" criticism, the emperor advises, “cut a few and it will be perfect.”
While briefs do not approach the timelessness or artistry of a Mozart opera, courts and judges sometimes offer the same critique: “too many (foot)notes.” The judicial critique can have more validity than the emperor's issue in Amadeus. The federal court in the District of Columbia, as well as several other courts, warn brief-writers against too many footnotes, instructing that these drop-down asides “shall not be excessive.” Recently, lawyers defending Meta Platforms (formerly, Facebook) in an antitrust action ran afoul of the DC court's rule this month according to an order from Judge James E. Boasberg. The offending brief contained 19 footnotes, including several lengthy ones, including a footnote that topped 150 words. In striking the brief for violating the rule and attempting “to circumvent page limits” by taking advantage of the single-spacing that footnotes use, the judge ordered counsel to file a new brief immediately “with no more than five footnotes containing no more than 20 aggregate lines of text.”
Scholars commonly use lengthy and extensive footnotes in law review articles, but that practice provides no guidance to counsel filing briefs. Justice Scalia often remarked that he did not read footnotes. In Making Your Case: The Art of Persuading Judges, Scalia's co-author, Bryan Garner, proselytizes for putting citations in footnotes but warns against using footnotes for substantive text. The justice dissented from that view in the book because he wanted to know the authority behind a statement while reading along, rather than having to dart his eyes to the bottom of the page. Still, Scalia's hostility to footnotes did not extend to his own writing, where he apparently wanted his footnotes read. In Obergefell v. Hodges, 576 U.S. 644, 720 n.22 (2015) (Scalia, J., dissenting), he reserved his most unjudicial and quotable criticism of the majority's decision to a footnote, where he said, if forced to make certain statements in an opinion to obtain a fifth vote, he "would hide my head in a bag" and not allow the Court to descend “from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”
Scalia's inconsistency suggests that footnotes have their place. In my own briefs, I tend to use footnotes to advise the court of factual or legal points that it should know but placing them in the body would detract from the flow of the narrative I constructed. I also consult any expressed views on footnotes by the judges on the court because, after all, you never want to offend your intended audience.
Perhaps counsel's new knowledge of Judge Boasberg's abhorrence of footnotes explains why, in the Meta Platform case, their refiled brief contained no footnotes.
Saturday, July 2, 2022
On June 24, 2022, in Dobbs v. Jackson Women’s Health, the United States Supreme Court overturned Roe v. Wade and, in so doing, sparked impassioned reaction in the United States.
Below are a few thoughts on the decision.
1. The majority was correct.
In today’s climate, particularly in some academic institutions, it’s not advisable to publicly criticize Roe – or praise Dobbs – if you want to advance in your academic career.
But the truth is the truth.
Roe was a terrible decision. The majority got it right.
The right to abortion was not based on any reasonable interpretation of the Constitution’s text. And it was not inferable from the text, particularly the Fourteenth Amendment’s Due Process Clause, unlike, for example, the right to effective assistance of counsel, which can be inferred from the Sixth Amendment right to counsel. It was not rooted in the nation’s history or traditions, which is a critical factor that constrains the Court’s power and prevents justices from creating whatever “rights” they subjectively deem desirable. Instead, the Roe Court created a constitutional right out of thin air, divining such right from the invisible “penumbras” that the Court in Griswold v. Connecticut likewise created out of thin air. And the nonsensical doctrine of substantive due process, which the Court invoked in Planned Parenthood v. Casey to uphold Roe’s central holding, is a legal fiction. Not surprisingly, constitutional scholars of both conservative and liberal persuasions, along with the late Justice Ruth Bader Ginsberg, have recognized that Roe was incredibly, if not irredeemably, flawed.
The Court’s decision reflected a principle that is vital to a functioning democracy and the valuers of federalism, de-centralized governance, and bottom-up lawmaking: nine unelected and life-tenured judges should not have to right to decide for an entire country what unenumerated rights should or should not be recognized when such “rights” are neither contained in nor inferable from the text, or not deeply rooted in history and tradition. The reason for these constraints is obvious: without them, the justices would have the unfettered authority to create – or take away – whatever rights they wanted, whenever they wanted, and for whatever reason they wanted, which would reflect nothing more than their subjective policy predilections. That is antithetical to a democracy that vests power in the people, not philosopher kings. And for those who claim that the Ninth Amendment is a source of unenumerated rights, they are correct. But where in the Ninth Amendment does it state that the Court has the authority to create those rights, particularly where there is no basis in the Constitution to do so?
Ultimately, Roe was the perfect example of a raw exercise of judicial power. This does not necessarily mean, however, that the right to abortion lacked a textual basis in the Constitution. As stated below, to the extent that there is a constitutional basis to support a right to abortion, it is through the Equal Protection Clause (or possibly the Privileges and Immunities Clause).
2. Justice Roberts’ approach was sensible but not principled.
Chief Justice Roberts’ concurrence strikes a sensible but not necessarily principled balance between recognizing the fatal flaws in Roe yet respecting the fact that Roe has been the law for nearly half a century. For this reason, Roberts would have upheld the Mississippi law, which banned abortions after fifteen weeks, but not entirely overturned Roe and Casey.
This approach, although understandable given the practical impact of overturning Roe (and, as Roberts put it, the “jolt” to the legal system), is akin to taking a band-aid off slowly rather than ripping it off. Moreover, given the Court’s on-again, off-again relationship with stare decisis, with both liberal and conservative justices selectively applying the doctrine, Roberts’ concurrence appears more as a misguided attempt to preserve the Court’s legitimacy. Indeed, in this and other decisions, Roberts appears to lend more weight to perceptions about the public reaction’s reaction to a particular decision than the text of the Constitution itself. But basing decisions primarily on how the Court’s legitimacy will be affected invariably leads to political decisions and the precise result – a decline in the Court’s legitimacy – that Roberts is so intent on protecting. It should come as no surprise that the public opinion of the Court is now at twenty-five percent.
Put simply, interpreting the Constitution’s text reasonably is the key to the Court’s institutional legitimacy.
3. Justice Kavanaugh’s concurrence was surprisingly misguided.
In his concurrence, Justice Brett Kavanaugh argued that the decision in Dobbs returned the Court to a position of neutrality on abortion. It is difficult to believe that Kavanaugh believes this to be true.
The Court did not return to a position of neutrality. Roe was decided 7-2, and in Planned Parenthood v. Casey, the Court by a 5-4 margin affirmed Roe’s central holding. Thus, the Court had previously – and in numerous other cases – affirmed Roe and protected the fundamental right of women to access abortion services. In other words, it had already taken a position – repeatedly – on whether the Constitution protected abortion.
So, what changed since Planned Parenthood? Nothing – except the composition of the Court, namely, the confirmation of three conservative justices.
This is not to say that appointing conservative justices – and originalists – is a bad thing. Given the Court’s abortion precedent, however, and the known political affiliations of Justices Kavanaugh, Gorsuch, and Barrett, the notion that the Court returned to a position of “neutrality,” without acknowledging that, since Casey reaffirmed Roe, nothing changed but the Court’s composition, is ridiculous. That’s why Chief Justice Roberts’ approach was arguably the most sensible, although not the most principled, way to decide Dobbs.
Of course, this does not change the fact that, as a matter of constitutional law, Roe was one of the worst decisions in the twentieth century (not as bad, though, as Plessy and Korematsu), that Casey too was profoundly wrong, and that the Court was correct as a matter of constitutional law. The original sin was Roe itself, and the flaws in Roe were compounded by Court’s decision in Casey, which reaffirmed Roe based on untenable constitutional grounds, and on nonsensical justifications such as, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” That’s what you get when you subscribe to “living constitutionalism," which makes about as much sense as substantive due process or the belief that Elvis is still alive.
Having said that, the optic is not good – Dobbs suggests that constitutional rights change based on the political ideologies of the current justices. Kavanaugh’s concurrence displayed a startling disregard of this reality.
4. Justice Thomas went too far.
With all due respect, Justice Clarence Thomas went too far in his concurrence. Yes, Thomas is correct that substantive due process is a nonsensical legal doctrine, and that Roe and Griswold were constitutionally indefensible decisions.
This doesn’t mean, however, that you revisit and overrule every flawed legal precedent that substantive due process produced. The truth is that, in many instances, the justices must consider the practical consequences of their decisions, and if the Constitution’s text can be reasonably interpreted to support a particular outcome, the Court should reach outcomes that will expand rights and promote, among other things, equality and the equal dignity of all persons. And in some instances, even if a precedent is irreparably flawed, the resulting “jolt” to the legal system and the material harm to citizens that may result can support letting the precedent stand on stare decisis grounds (or, as in the case of abortion, justifying it based on the Equal Protection Clause).
This analysis applies directly to Griswold, which was equally, if not more, flawed than Roe, because the majority, despite recognizing that the text didn’t support invalidating Connecticut’s ridiculous contraception ban, nonetheless decided to invent invisible “penumbras” from which it could single-handedly invent unenumerated constitutional rights.
But that doesn’t mean that Griswold should be overruled. If it was, you can be sure that misguided legislators would try to outlaw contraception. After all, imagine a world where women cannot access contraception and cannot access abortion services. That’s not a world that most reasonable people want to imagine.
Additionally, Thomas is wrong about Obergefell, which was defensible – and rightly decided – because, like the Seventh Circuit held in Baskin v. Bogan, same-sex marriage bans (and interracial marriage bans) violate the Equal Protection Clause.
Thankfully, there is no support for Thomas’s position on the Court, as the majority explicitly and repeatedly stated that precedents such as Griswold and Obergefell were not implicated by the decision because they did not involve the state’s interest in protecting fetal life. And there is reason to believe the justices in the majority because their reputations would be forever tarnished if they betrayed what they had explicitly written in a prior opinion.
5. Justice Ginsburg was right – if abortion can be justified by any provision in the text, it is in the Equal Protection Clause.
Despite Roe’s indefensible reasoning, there is arguably a basis, as Justice Ginsburg argued, to justify a right to abortion under the Equal Protection Clause. Abortion bans relegate women to second-class citizens. If a woman gets pregnant, she – and she alone – must often bear the financial, emotional, and psychological burdens of pregnancy, not to mention the medical issues (perhaps life-threatening) that some women may face if they are forced to carry a pregnancy to term. The burden on men, however, is not comparable and, in many cases, non-existent. Think about it: a woman who gets pregnant while in college, while pursuing a graduate degree, while starting a job, or while impoverished, must now bear the financial, emotional, and psychological burden of an unwanted pregnancy, which may cause that woman to drop out of school, lose her job, or sink further into poverty. The result is that some women will be prohibited from participating equally in the economic and social life of this country. That is wrong – and that is why the Equal Protection Clause arguably provides a basis to justify a constitutional right to abortion.
The problem is that neither Roe nor Casey was based primarily on the Equal Protection Clause. They were based on a right to privacy found nowhere in the Fourteenth Amendment and, later, on a substantive liberty interest that no reasonable interpretation of the Fourteenth Amendment can support. That is in part why Roe created such a backlash and, ultimately, was overruled.
6. Imagine where we’d be if the Court had embraced judicial restraint and deference.
If liberals had embraced the concept of judicial restraint, and of deferring more frequently to the decisions of federal and state legislatures, the world might look very different now.
New York’s law regulating who could carry a gun in public would still be on the books. The high school coach who prayed on the fifty-yard line after his high school’s football games would still be fired (although he shouldn’t have been fired). And abortion would still be accessible in every state, albeit with a fifteen-week limitation. For liberals, that sounds like a much better situation than they are in now.
That highlights the problem with judicial activism, which both conservative and liberal justices have embraced at various periods in the Court’s history. As stated above, when you rely on the Court to effectuate social change and disregard the constraints on judicial power, you give nine unelected judges the power to identify and define unenumerated rights for an entire nation based on their subjective policy preferences. And what the Court gives, it can certainly take away. In other words, advocates for an activist Court – conservative or liberal – will see their luck run out when the Court’s composition changes. That is precisely what happened in Dobbs.
7. Stop criticizing the Court
Predictably, after Dobbs was released, some in the media, and even some scholars, brought out all the usual buzzwords, such as characterizing the decision as misogynistic, white supremacist, racist, and the like. Even President Biden made disparaging comments about the Court that undermined his and the Court’s legitimacy. Biden had the audacity to state during a conference in Madrid, Spain, that “[t]he one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States, in overruling not only Roe v. Wade, but essentially challenging the right to privacy.” He should be ashamed.
Few, if any, however, including Biden, defended Roe on its merits. How could they? As Laurance Tribe stated, “one of the most curious things about Roe is that, beyond its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.” Ultimately, the Court’s job is to interpret the Constitution, not reach the outcomes that you like. And even when you disagree with a decision, it’s wrong to hurl insults at the justices. At this juncture, time would be better spent lobbying state legislatures across the country to protect women’s bodily autonomy and provide access to abortion services.
 381 U.S. 479 (1965).
 505 U.S. 833 (1992).
 See 381 U.S. 479 (1965).
 576 U.S. 644 (2015); 766 F. 3d 648 (2014).
 See Opinion, How Liberals Should Rethink Their View of the Supreme Court (June 21, 2022), available at: Opinion: Liberals should rethink view of Supreme Court - CNN
 See, e.g., Ramesh Ponnuru, The Times Distorts Alito’s Draft Opinion, (May 5, 2022), available at: New York Times Distorts Alito's ‘Dobbs’ Opinion | National Review
 Alex Gangitano, Biden Calls Supreme Court Overturning Roe v. Wade ‘Destabilizing’ (June 30, 2022), available at: Biden calls Supreme Court overturning Roe v. Wade ‘destabilizing’ | The Hill
 See, Opinion, Roe Was Wrong the Day It Was Decided. The Supreme Court Did the Right Thing (June 24, 2022), available at: Roe Was Wrong the Day it Was Decided. The Supreme Court Did The Right Thing | Opinion (newsweek.com)
Wednesday, June 29, 2022
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.
Sunday, June 26, 2022
In writing today’s post, it is difficult to overlook the Supreme Court’s predictable rulings on abortion and guns, with a less certain but likely precedent-shattering decision on coach-led public-school prayer. Others will critique the decisions, extrapolate their consequences for issues beyond the cases decided, and speculate about new doctrinal implications. For today, I want to focus solely on the tools it suggests appellate advocates must use.
Dobbs and Bruen place a heightened emphasis on history. It is not the history that originalists who look to the Framers’ intent utilize, but whether an asserted constitutional liberty is “deeply rooted in this Nation’s history and tradition.” In Dobbs, the majority rejected a constitutional right of access to abortion because it held that no historical tradition, common law or otherwise, enabled women to have abortions regardless of the legislative policy choices, before the Constitution’s framing or in its aftermath or even following the ratification of the Fourteenth Amendment. In Bruen, similarly, the Court held text, history, and tradition informed the meaning of the Second Amendment, with the Court holding that history without consideration of possible countervailing government interests dictates the result.
While the decisions fail to take account of constitutionally significant differences in the principles that animate modern society, including, for example, the equal status of women and minorities or the contemporary principle of religious tolerance, an essential approach to argument emerges from the decisions. First, advocates must focus on the relevance of historical analogy. Are historical restrictions on the exercise of a right animated by the same considerations that underlie a modern restriction? Thus, for example, it is well-accepted that online publications receive the same type of free-press protections that publications that emerged from hand-operated printing presses issued in large measure since the time of John Peter Zenger.
Even though Justice Breyer’s Bruen dissent criticized the majority’s use of “law office history,” the majority’s reliance upon it constitutes the order of the day. Justice Thomas’s majority opinion rejects contrarian historical examples as “outliers,” unworthy of bearing constitutional significance. Similarly, Justice Alito’s history of abortion in Dobbs seems to be selective about what history counts.
The two decisions, then, place a burden on an advocate to make the history that favors a position compelling and part of an unbroken narrative (except for insignificant outliers). Messy renditions of history open too many doors to predilection. That historical advocacy, then, also reflect timeless principles consistent with constitutional understandings.
A pure historical approach is not a complete stranger to constitutional law. The Seventh Amendment’s right to trial by jury has long adopted that approach, defining the scope of the right by how it was practiced at common law when the Bill of Rights was ratified. Thus, then-appellate advocate John Roberts won a unanimous victory, written by Justice Thomas, where the Court recognized that jurors have always served as the “‘judges of the damages,’” even under the English common law that predated the Constitution in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (19978) (quoting Lord Townshend v. Hughes, 86 Eng. Rep. 994, 994-995 (C.P. 1677)). The decision hinged, in large part, on close 18th-century analogues to the statutory copyright damages at issue in the case. Similarly, in invalidating administrative procedures utilized by the Securities and Exchange Commission the Fifth Circuit in Jarksey v. SEC, No. 20-61007, 34 F.4th 446, 451 (5th Cir. 2022), relied upon historical analysis to find that “[c]ivil juries in particular have long served as a critical check on government power,” so that the civil enforcement at issue could not be assigned to agency adjudication.
Where constitutional rights are at issue, history has become destiny.
Saturday, June 18, 2022
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.
Sunday, May 29, 2022
Professor Gerald Gunther once memorably described strict scrutiny as “‘strict’ in theory and fatal in fact.” And, courts have employed that strict scrutiny to content-based restrictions on free speech, as well as burdens on fundamental rights under both due process and equal protection. It is easy to suppose, even if wrong, that strict scrutiny applies to all fundamental rights.
However, the Supreme Court has adopted different standards for different constitutional rights that make such a knee-jerk response to the presence of a fundamental right the wrong move. For example, the free-exercise clause in a much-criticized decision written by Justice Scalia limited the scope of this protection by requiring the state action to target religion or a religion for different treatment, as opposed to being a valid, neutral law of general applicability. The Seventh Amendment’s jury-trial right also eschews strict scrutiny in favor of a historical test.
Recently, a concurring opinion (to his own majority opinion) by Eleventh Circuit Judge Kevin Newsom speculated on the proper test for the Second Amendment. He rejected one based on levels of scrutiny because the majority in District of Columbia v. Heller expressly shunned any type of “judge-empowering ‘interest-balancing inquiry.’” 554 U.S. at 634.
Newsom instead endorsed a view he credits to a Justice Kavanaugh dissent written when Kavanaugh sat on the D.C. Circuit. That opinion stated that “courts are to assess gun bans and regulations based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny.” Newsom, though, is not entirely happy with that formulation. He questions its inclusion of “tradition” as a metric. As he explains, if tradition represents the original public meaning, it duplicates what history provides. If it “expand[s] the inquiry beyond the original public meaning—say, to encompass latter-day-but-still-kind-of-old-ish understandings—it misdirects the inquiry.”
Newsom adds a “bookmark for future reflection and inquiry than anything else” to his opinion. He states that it is problematic to reject balancing tests in the context of the Second Amendment, yet still apply it to other fundamental rights. Using the First Amendment as an example, he criticizes the balancing tests adopted there as “so choked with different variations of means-ends tests that one sometimes forgets what the constitutional text even says.” He says that the “doctrine is judge-empowering and, I fear, freedom-diluting.” He suggests that “bigger questions” need to be raised to decide whether applying scrutiny at any level should continue.
The concurrence is provocative and suggests that the roiling of doctrine in other areas of law may extend to how courts should view fundamental rights. However, there is no holy grail that reduces judicial discretion in favor of assuring liberty. Construing constitutional rights is no less subject to manipulation based on a judge’s views if the judge subscribes to the original public meaning school of interpretation, rather than balancing tests. Newsom appears to agree that Heller “was perhaps ‘the most explicitly and self-consciously originalist opinion in the history of the Supreme Court.’” Yet, Heller adopted a historical analysis others have criticized as skewed to obtain a result. Those who expect the pending SCOTUS decision in N.Y. St. Rifle & Pistol Ass’n, Inc. v. Bruen before the Supreme Court to invalidate New York’s century-old restrictive gun law recognize that history supporting the type of government authority the statute represents is likely to make little difference to the majority. And, original public meaning cannot reflect our rejection of ideas about race and gender from the founding period.
So, what should we make of Newsom’s concurrence? The opinion seems further evidence that nothing about our approach to constitutional law is settled – and the questioning of strict scrutiny as an interpretative tool is only beginning.
 Gerald Gunther, The Supreme Court, 1971 Term - Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972).
 See City of Austin, Texas v. Reagan Nat’l Advert. of Austin, LLC, 142 S. Ct. 1464, 1471 (2022); Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231 (1987).
 Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997).
 See Massachusetts Bd. of Ret. v. Murgia, 427 U.S. 307, 312 (1976).
 Emp. Div., Dep’t of Hum. Res. of Oregon v. Smith, 494 U.S. 872, 879 (1990).
 Markman v. Westview Instruments, Inc., 517 U.S. 370, 376 (1996).
 United States v. Jimenez-Shilon, No. 20-13139, 2022 WL 1613203, at *7 (11th Cir. May 23, 2022) (Newsom, J., concurring).
 554 U.S. 570 (2008).
 Jimenez-Shilon, 2022 WL 1613203, at *8 (Newsom, J., concurring).
 Heller v. District of Columbia (Heller II), 670 F.3d 1244, 1271 (D.C. Cir. 2011) (Kavanaugh, J., dissenting).
 Jimenez-Shilon, 2022 WL 1613203, at *8 n.2 (Newsom, J., concurring).
 Id. (Newsom, J., concurring).
 Id. (Newsom, J., concurring).
 Id. at *9 (Newsom, J., concurring).
 Id. at *10(Newsom, J., concurring).
 Id. at *11 (Newsom, J., concurring).
 Id. at *8 (Newsom, J., concurring) (quoting United States v. Skoien, 614 F.3d 638, 647 (7th Cir. 2010) (en banc) (Sykes, J., dissenting)).
 See, e.g., J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Mark Anthony Frassetto, Judging History: How Judicial Discretion in Applying Originalist Methodology Affects the Outcome of Post-Heller Second Amendment Cases, 29 Wm. & Mary Bill Rts. J. 413 (2020).
 No. 20-843.
Sunday, May 22, 2022
Actor Johnny Depp is currently suing his ex-wife, actress Amber Heard, for defamation, and the trial is both entertaining and educational – particularly for law students and lawyers. The reason for that is Camille Vasquez, who graduated from the University of Southern California and Southwestern Law School, and whose performance at the trial is equivalent to a master class in persuasive advocacy.
Put simply, Camille Vasquez is a rockstar.
Law students (and lawyers) should watch Camille because they will learn more from her in a few hours than they will likely learn in three years of law school. Below are a few reasons why Camille Vasquez is an outstanding attorney, and why she represents the best of the legal profession.
1. She is confident and owns the courtroom.
Whether it is conducting the cross-examination of Amber Heard or objecting to the adversary’s questions on direct examination, Camille Vasquez is incredibly confident and self-assured. Quite frankly, Vasquez has swagger. She knows she is among the best. She owns the courtroom. And if you try to bullshit her, it won’t end well for you.
Such confidence, which Vasquez has exuded in all aspects of the trial, is critical to creating the perception with the court and jury that you know what you’re doing, and that you are a credible advocate. When you create that impression, the judge and jury are more likely to view you and your client more favorably – and rule in your favor.
2. She uses non-verbal techniques effectively.
When arguing before a judge or jury, your non-verbal techniques are equally, if not more, important, than what you say. Non-verbal techniques, such as posture, facial expressions, eye contact, and variance in tone, attitude, and emphasis, convey to the jury, among other things, your confidence, knowledge of the record, and belief in your position.
Camille Vasquez uses non-verbal techniques extremely effectively. When Vasquez was cross-examining Amber Heard, for example, she stood upright, at times leaning into the podium to emphasize a critical point. She varied her facial expressions to convey skepticism, if not disbelief, of some of Heard’s responses. She remained focused and confident at all times. She never laughed or displayed inappropriate emotional responses. She never fidgeted, folded her arms, or paced about the courtroom. She listened to Heard’s responses and retained eye contact. In short, her non-verbal communications showed that she had perfect knowledge of the record and that she was owning the witness and the courtroom.
3. She knows how to adjust and follow up during cross-examination.
During cross-examination, Camille Vasquez adjusted effectively to Amber Heard’s sometimes-evasive responses with follow-up questions that forced Heard to concede unfavorable facts. In so doing, Vasquez didn’t simply recite a list of questions and hope that she would receive a favorable answer. Instead, she knew Heard was going to be evasive at times, and she adjusted in the moment, asking follow-up questions that would not allow Heard to avoid conceding unfavorable facts. For example, during cross-examination, Heard testified that she had pledged/donated seven million dollars to a particular charity. Vasquez refused to allow Heard to conflate the distinction between pledging and donating money, forcing Heard to admit that, although she had pledged seven million dollars to a charity, she never actually donated any money to that charity.
4. She knows how to strategically include comments that undercut a witness’s credibility.
Effective advocacy includes strategically commenting on a witness’s testimony during cross-examination to express skepticism about a witness’s truthfulness or highlight a witness’s non-responsiveness. Simply put, cross-examination is not merely about asking questions. It’s about having a conversation with the witness and, through excellent questions, non-verbal communication, and strategic commentary on the witness’s responses, owning that conversation and eliciting facts that damage the adversary’s credibility. For example, during the cross-examination, Vasquez made comments such as:
“That wasn’t my question, Ms. Heard.” (conveying to the jury that Heard was being evasive)
“You know what a deposition is, right Ms. Heard?” (implying that Heard is ignorant and trying to hide unfavorable facts)
“You understand the difference between pledging money and donating money, right?” (this may not be the exact quote, but it’s similar and conveys that Ms. Heard’s attempt to say that pledging and donating money are synonymous makes no sense)
The inclusion of such comments enables a lawyer to communicate subtly to the jury that the witness’s testimony is not credible. Put another way, when cross-examining a witness, you can still “testify” if you do so strategically and subtly. Camille Vasquez did that very effectively.
5. She is prepared and has outworked Amber Heard’s attorneys.
This point doesn’t need much explanation, except to say that many people have no idea what it means to be truly prepared for a trial (or a midterm or final examination, for that matter). Preparation means, among other things, knowing every inch of the record. It means being able to recite the page and line number of a deposition when conducting a direct or cross-examination. It means knowing the rules of evidence and practicing objections thousands of times, and being able to anticipate responses to those objections. It means knowing the relevant case law so well that you never need notes.
Camille Vasquez was incredibly prepared for this trial and almost certainly as prepared as any human being can be for a trial. She knew the rules of evidence so well that every objectionable question from Heard’s attorney was met with an objection by Vasquez – and sustained nearly every time. The link below shows the preparation – and sheer talent – that Vasquez has displayed during the trial.
6. She’s very smart.
Intelligence matters, and great lawyers are highly intelligent. Camille Vasquez is no exception – her analytical abilities, quick thinking, and ability to articulate complex points in a clear and relatable manner, reflect her impressive intellect.
7. She cares for and is a passionate advocate for her client.
This trial has shown that Camille Vasquez is a kind and passionate person who cares deeply for her clients and for the causes that she is advocating. She represents Johnny Depp with compassion and empathy, and through her interactions with Depp, you can obviously see that she cares about him and is doing everything possible to achieve a favorable result.
In short, she is a good person – and good people make the best attorneys.