Appellate Advocacy Blog

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

Sunday, May 22, 2022

Camille Vasquez Is a Rockstar

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

Put simply, Camille Vasquez is a rockstar.

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

1.    She is confident and owns the courtroom.

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

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

2.    She uses non-verbal techniques effectively.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

6.    She’s very smart.

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

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

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

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

May 22, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, Moot Court | Permalink | Comments (0)

Sunday, May 15, 2022

A Plea for Pro Bono Service

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

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

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

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

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

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

May 15, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Current Affairs, Legal Ethics, Legal Profession | Permalink | Comments (0)

Denying Unenumerated Rights

The leaked draft SCOTUS opinion overturning Roe v. Wade[1] shares a hostility to unenumerated rights similar in kind to what some Senators expressed during the confirmation hearing of soon-to-be Justice Ketanji Brown Jackson. Critics often say that unenumerated rights lack legitimacy because they have no specific textual anchors. Instead, the criticism goes, they reflect nothing more than a judge’s political views treated as constitutional gloss – except, of course, when the critic likes the result or cannot deny the right without seeming foolish or racist.

To be sure, Justice Alito’s Dobbs draft did not deny that implied rights exist. After noting that abortion is not in the Constitution, a factual statement that can also be said of separation of powers, Alito limited what he dubbed “implied rights” to those “deeply rooted in this nation’s history and tradition” and “implicit in the concept of ordered liberty,”[2] a judge-made formulation that does not by itself cabin the interpretative exercise and leads to debates about history. In some hands, it freezes rights to narrow conceptions that address specific problems familiar to those responsible for the Bill of Rights when ratified in 1791.

Others, however, recognize that the quest for a “more perfect union” involves understanding root concepts and applying them to novel modern fact patterns. That is what Justice Kennedy attempted in Obergefell v. Hodges,[3] the same-sex marriage opinion in which Alito’s dissent argued, as in the Dobbs draft, that the issue belongs to the individual states and not to constitutional argument.[4]

In evaluating a right to same-sex marriage, Kennedy noted that “Loving [v. Virginia[5]] did not ask about a ‘right to interracial marriage.’”[6] Certainly, interracial marriage was neither “deeply rooted in this nation’s history and tradition” nor “implicit in the concept of ordered liberty.” Instead of looking for historical validation, Kennedy wrote that Loving and other marriage cases “inquired about the right to marry in its comprehensive sense, asking if there was a sufficient justification for excluding the relevant class from the right.”[7]

The determination of whether “liberty’ is limited to conceptions based on experience in 1791 or even 1868, when states ratified the Fourteenth Amendment, or more expansively read to apply analogous concepts to modern questions provides the basis for the real debate. The Framers anticipated that some might deny the existence of unenumerated rights and provided explicit constitutional text to rebut the argument: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”[8] Doing so, however, provided no interpretative guide.

To James Madison, the Ninth Amendment’s simple sentence embodied "the great residuum" of rights that people possessed.[9] He told the First Congress in defense of his draft bill of rights that Americans need not fear that an omission means denial. He pointed to the British common law we inherited, where advocates of individual liberties as barriers to government overreach were able to secure a wide range of rights in Britain without written protections.[10] In doing so, Madison sought to prevent those interpreting the Constitution’s rights regime from drawing an adverse inference from absence in the text.

It is also important to keep in mind another aid courts have used in construing the Constitution that applies with equal force to unenumerated rights. As Chief Justice William Howard Taft wrote, those who framed the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[11] They valued the interpretative craft that Lord Edward Coke brought to Magna Carta, transforming it from exemptions from royal control that largely benefited the landed class into a celebrated bulwark of liberty that had a special appeal and application to the grievances of colonial America.[12]

That type of contextual interpretation bound to experience was endorsed by Madison. During a congressional debate about constitutional limitations relating to the Jay Treaty, Madison expressed astonishment that members would ask him to explain the Constitutional Convention’s take on the issue before the House. He explained that, based on agreements to disagree and his own doubts about his ability to reconstruct his thinking during the Convention, the views of the framers “could never be regarded as the oracular guide in expounding the Constitution.”[13]

If we are left to our own wisdom in attempting to discern how timeless principles apply to modern dilemmas, then we confront a very human problem of reading an 18th century document and the history behind it with 21st century eyes and values. Thus, those who seek to empower parents with more power to object to school curriculum insist on an unenumerated right discovered in Meyer v. Nebraska,[14] and Pierce v. Soc’y of the Sisters,[15] holding that parents have a right to direct the education of their children. The decisions placed the “liberty” at issue in the Fourteenth Amendment’s Due Process Clause[16] and read liberty broadly. Meyer described liberty to embrace more than “merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”[17] State courts had reached similar conclusions on parental rights, not based on their state constitutions, but on their readings of the common law.[18]

Interestingly, Meyer’s and Pierce’s use of family to establish a parental educational right provided building blocks that established the fundamental nature of the right to marry, even though nothing in the Constitution addresses marriage[19] or education. Still, the common law did provide a basis for marriage.[20] It is the use of a common-law methodology that imposes the requirement of a search warrant to prevent unlawful entry into a home as well as the use of remote modern eavesdropping devices that involve no physical entry.

Similarly, the tools we use to understand the application of unenumerated rights must be read to embrace the underlying concept of liberty in light of modern antidiscrimination principles, the organic nature of the common law, and their place in understanding our Constitution. While such an approach is not as unbounded as it might seem, it is also not outcome-determinative. Inevitably, we depend on the wisdom of those we entrust with interpreting our rights to learn from the lessons of the past and remain mindful of the impact that can accompany radical reinterpretation, whether it leads to novel decisions or retrenchment.

In the end, Judge Learned Hand’s description of “The Spirit of Liberty” may best explain the scope of our liberties. Stating that he was unable to define the spirit of liberty, he still supposed that it embodies the idea of uncertainty being “not too sure that it is right;” “seeks to understand the mind of other men and women;” and “weighs their interests alongside its own without bias.”[21] Most importantly:

    Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no     court to save it.[22]

 

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

[2] Washington v. Glucksberg, 521 U.S. 702, 721 (1997). Interestingly, earlier in Glucksberg, the Court describes the test in all due process cases as being an examination of “our Nation's history, legal traditions, and practices.” Id. at 710. Many subsequent formulations, like the Dobbs draft, leave out “practices.”

[3] 576 U.S. 644 (2015).

[4] Id. at 736 (Alito, J., dissenting).

[5] 388 U.S. 1 (1967).

[6] Obergefell, 576 U.S. at 671.

[7] Id.

[8] U.S. Const. amend. ix.

[9] James Madison, Speech Introducing Bill of Rights (June 8, 1789), available at http://press-pubs.uchicago.edu/founders/documents/bill_of_ rightss11.html (linking unenumerated rights to a constitutional framework that created a federal government of limited powers).

[10] 1 Annals of Cong. 454 (Jun. 8, 1789).

[11] Ex parte Grossman, 267 U.S. 87, 109 (1925).

[12] See Klopfer v. North Carolina, 386 U.S. 213, 225 (1967).

[13] 5 Annals of Cong. 775-76 (Apr. 6, 1796).

[14] 262 U.S. 390 (1923).

[15] 268 U.S. 510 (1925).

[16] There is a substantial argument that a better source of implied liberties is the Privileges and Immunities Clause, read in conjunction with the Ninth Amendment, but that debate, which has not won a majority on the Supreme Court, is beyond the scope of this post.

[17] Meyer, 262 U.S. at 399.

[18] See, e.g., Sch. Bd. Dist. No. 18, Garvin County v. Thompson, 103 P. 578, 579, 582 (Okla. 1909) (holding that a school may not expel students, who at the direction of their parents, refused to participate in singing lessons, and holding that “[a]t common law the principal duties of parents to their legitimate children consisted in their maintenance, their protection, and their education,” and that the parent’s right “is superior to that of the school officers and the teachers.”).

[19] See Obergefell, 576 U.S. at 667.

[20] See Meister v. Moore, 96 U.S. 76, 81, 24 L. Ed. 826 (1877).

[21] Learned Hand, “The Spirit of Liberty” (1944).

[22] Id.

May 15, 2022 in Appellate Advocacy, Current Affairs, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 10, 2022

Will Dobbs (and Janus) Overrule Stare Decisis?

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

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

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

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

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

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

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

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

May 10, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, May 8, 2022

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

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

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

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

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

I.    The Reality of Abortion Jurisprudence

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

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

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

    And the Court in Roe likely knew that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II.    Overturning Roe will not endanger other constitutional rights.

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

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

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

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

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

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

 

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

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

[3] Id.

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

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

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

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

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

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

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

May 8, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, April 23, 2022

Why Judicial Deference Matters

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

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

A.    Cases where judicial deference was appropriate

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

        1.    Clinton v. New York

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

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

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

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

            2.    Kennedy v. Louisiana

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

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

            3.    Citizens United v. FEC

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

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

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

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

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

            4.    Shelby County v. Holder

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

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

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

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

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

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

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

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

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

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

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

This isn’t a joke.

It actually happened.

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

[4] 524 U.S. 417.

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

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

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

[8] 524 U.S. 417.

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

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

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

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

[13] Id. (emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

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

April 23, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (2)

Sunday, April 17, 2022

Tongue-in-Cheek Answers to Bizarre Questions

Oral advocates often must resist the first answer that comes to mind from judges who are ill-prepared or concerned about an issue not presented by the case. The judges asking the questions will make the decision so counsel must fashion a respectful response, even if the question does not merit it and the quick-witted answer that seems so tempting.

The same dynamic was on display during the recent hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court. Senators, all of whom voted against consenting to her nomination, asked some strange questions. Despite claims that judges should apply rather than make law and thus keep their personal views in check, many senators sought Judge Jackson’s policy positions on a range of hot button political issues. Her unflappable demeanor and deft handling of the questions posed to her was a model for the type of temperament we expect from judges – and from counsel arguing before a court.

Still, as I listened to the hearings, my responses were unrestrained, knowing that I had not been nominated to the highest court in the land, no one would hear my answers, and I was not making history. In this post, I indulge some of those imaginary answers that popped into my head, tongue firmly placed in cheek, by substituting RSP (me) for KBJ.

Senator Ted Cruz: “I’m a Hispanic man; could I decide I was an Asian man?”

RSP: “Senator, as far as I’m concerned, you can decide you are a fruitcake, and I’d have no reason to doubt you. Still, you would remain equally unwelcome in my household.”

Senator Tom Cotton: “Do you think we should catch and imprison more murderers or fewer murderers?”

RSP: “Really, that’s your question? Do you even know what a Supreme Court justice does? A justice does not catch or imprison murderers or make the laws that govern that process. And, by “we,” are you suggesting that members of the Senate Judiciary Committee do that task? Do you want to try asking a question again?”

Senator Lindsey Graham: “Did you watch the Kavanaugh hearings? … He was ambushed. How would you feel if we did that to you?”

RSP: “Senator, I was busy working for the American people as a judge while those hearings took place, so I did not watch the hearings. How I would feel, though, is an irrelevant question. Judges do not interpret or apply to the law based on how they feel – and your questions will not figure in any case I might hear as a supreme court justice. Senator, given the kinds of questions I have received from your side of the aisle, most of which have little to do with judging or my qualifications to serve on the Supreme Court, like this one, how I feel isn’t relevant.”

“One more thing, Senator. An ambush is the act of approaching or confronting someone with something unexpected. Are you suggesting, based on the questions I’ve been asked at this hearing, that I should have expected such bizarre questions?”

Senator Marsha Blackburn: “Can you provide a definition for the word ‘woman’?”

RSP: “You want a definition of a woman. Here’s one. A ‘woman’ is a person that the Supreme Court as recently as 1961 held Florida could exclude from the jury service list unless she affirmatively volunteered for it, even though no such requirement was imposed on men. The Court reasoned that, ‘Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.’[*] That’s a decision where the majority’s personal views obliterated the constitutional requirement of equal protection – and thankfully no longer holds sway.”

Senator Lindsey Graham: “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?”

RSP: “In introducing your question, you just said that you understood my faith is important to me and that you don’t measure up on being faithful because you only go to church three times a year. Now you want me to rate my religious faithfulness on a scale of 1 to 10? Let’s just leave it at more faithful than you revealed yourself to be, even though the question has nothing to do with my qualifications or ability to serve on the Supreme Court. Next question.”

Senator Ted Cruz: “Do you agree with this book that is being taught with kids that babies are racist?”

RSP: “I have not read this book. My only knowledge of it comes from your description of it and the passage you read before you posed this question. If I were to believe your earlier characterization, it does not say that babies are racist but states that babies are born without prejudice or bias. Your question presupposes the opposite. So, before I can answer your question, answer this one: were you lying about the book then or are you lying about it now?”

 

[*] Hoyt v. Florida, 368 U.S. 57, 61-62 (1961).

April 17, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Humor, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, April 3, 2022

The Logic of a Courtroom, the Skewing Influence of Politics

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

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

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

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

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

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

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

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

 

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

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

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

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

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

April 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, March 27, 2022

A Few Thoughts on Ketanji Brown Jackson

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

Robert Bork should have been confirmed too.

And Brett Kavanaugh was rightly confirmed.

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

Why?

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

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

How sad, and shameful.

***

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

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

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

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

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

***

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

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

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

As they say, elections have consequences.

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

***

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

March 27, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (5)

Sunday, March 20, 2022

The Best Possible Nominee

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

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

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

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

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

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

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

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

March 20, 2022 in Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, March 6, 2022

The Value in "Low-Value" Speech

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

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

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

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

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

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

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

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

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

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

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

[4] Id. at 126.

[5] Id. at 126-27.

[6] Id. at 134.

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

[8] Tenn. Code § 49-6-1019(a)(6).

March 6, 2022 in Appellate Advocacy, Appellate Justice, Current Affairs, Legal Profession, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, February 27, 2022

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

“God Hates Fags.”[1]

“Fags Doom Nations.”[2]

“Fag Troops.”[3]

“God hates you.”[4]

Should the First Amendment be interpreted to protect this nonsense?

No.

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

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

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

***

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

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

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

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

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

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

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

No.

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

No.

Put simply, Snyder v. Phelps was wrongly decided.

***

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

The Court got it wrong.

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

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

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

I cannot agree either.

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

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

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

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

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

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

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

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

But there is a limit.

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

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

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

 

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

[2] Id.

[3] Id.

[4] Id.

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

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

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

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

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

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

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

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

[13]  475 U.S. 41 (1986).

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

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

[16] Id. (emphasis added).

[17] Id. (emphasis added) (quoting Chaplinsky v. New Hampshire315 U. S. 568, 572 (1942)); see also Cantwell v. Connecticut310 U. S. 296, 310 (1940) (“[P]ersonal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution”).

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

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

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

February 27, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Tuesday, February 22, 2022

Preempting Appellate Issues in Palin v. New York Times

    In the space of two days last week, Sarah Palin lost her libel suit against the New York Times twice. Palin’s claim centered on a New York Times editorial in 2017 that linked Palin’s political rhetoric to the mass shooting that nearly cost representative Gabby Giffords her life. While the jury was deliberating on Monday, Judge Jed S. Rakoff, a senior judge in the Southern District of New York and former prosecutor who has written extensively on the flaws in America’s justice system, announced that he planned to dismiss the suit no matter what verdict the jury might return. Though Rakoff allowed the jury to continue deliberating, he announced his finding that Palin had not met the high standard to show “actual malice” by the newspaper, a requirement for public figures raising libel claims established in 1964’s New York Times Co. v. Sullivan. One day later, the jury agreed, rendering a verdict in favor of the Times that is likely to be appealed, perhaps all the way to the Supreme Court.

    Rakoff’s unusual step came in response to the Times’s motion for a directed verdict, which claimed that reasonable jurors could only conclude that Palin had failed to meet her evidentiary burden to show actual malice on the Times’s part. Such a directed verdict would be effective without any additional word from the jury. Such verdicts typically occur either before the jury begins deliberations or after they have returned a contrary verdict. In the Palin case, Rakoff’s extremely unusual ruling came while the jury was still deliberating. Rakoff justified that decision on the grounds that Palin was likely to appeal, so his ruling might avoid the need for a retrial. Because appellate courts are generally more deferential to jury verdicts, Rakoff’s apparent hope was that his ruling would allow the appellate court to consider the trial process concluded, then decide the appeal solely the legal issue of actual malice. That would prevent the appellate court from remanding for a new trial, which would render the proceedings to date an enormous waste of resources for all parties involved.

    It is no surprise that Judge Rakoff hopes to control the appellate process from this case given its long history in his courtroom. Judge Rakoff initially dismissed Palin’s lawsuit nearly five years earlier, only to have an appellate court reverse his decision and reinstate the case. He may have hoped to avoid the same fate, and thus permitted the jury to reach a verdict even though he was convinced that the suit had no legal merit. But his ruling may have affected jury deliberations nonetheless, undermining the very purpose behind it. After the jury reached its verdict, several jurors informed Judge Rakoff’s clerk that they had seen notifications about the Judge’s ruling on their phones. Though the jurors insisted that those notifications played no role in their decisions, Palin’s legal team is almost certain to seize upon that news in seeking a new trial during the appellate process. Rakoff’s decision thus seems likely to lead to complications on appeal at a minimum, and perhaps even the need for the very resource-intensive retrial he hoped to avoid.

    The case is a microcosm of the desire trial judges often harbor to control the outcome of their cases all the way through the appellate process. Trial judges may genuinely aim to enforce the rule of law without an eye towards the repercussions. But trial judges are also human actors within a legal system. And nobody, judge or not, enjoys hearing from their superiors that they have made a mistake and may need to repeat months or even years of work to correct it.

    Those kinds of cognitive biases are ever present, ever for trained and experienced judges. Those biases are difficult to control, though gains can be made by engaging more deliberative processes and reducing decision making to checklist-style thinking to reduce the impact of these biases. Blind efforts to buttress a given decision against overrule and remand, however, are unlikely to be successful. As the Palin case illustrates, they may even be counter-productive for the well-intentioned judge.

    Judge Rakoff’s judicial legacy is hardly in question. But even he may have succumb to the simple human desire to see an initial decision upheld without question or doubt. And in doing so, he may have done his own decision a disservice, making it far more likely that it will be reversed in the future. That kind of trial judge overreach should be avoided as much as possible.

February 22, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts | Permalink | Comments (2)

Monday, February 7, 2022

In favor of remote arguments

Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has been in the news recently after Gabe Roth,* the executive director of Fix the Court, filed an ethics complaint against Judge Smith. The complaint centers around Judge Smith telling a government attorney who wanted to remain masked during oral argument to remove his mask. Several media sources have reported on the incident, including the ABA Journal. This post, however, is going to focus on what happened about two weeks before the argument.

On December 21, 2021, the government attorney filed an unopposed motion to appear before the Fifth Circuit remotely. The attorney cited the spread of the omicron variant of COVID-19, the fact that he has young unvaccinated kids, and that the Office of Management and Budget had issued guidance “indicating that only mission-critical travel” was recommended at that time. According to the motion, “In evaluating whether or not travel is mission-critical, agency leadership is directed to strongly consider whether the purpose of the travel can be handled remotely.”

This motion was apparently denied. According to another ABA Journal article that I found, it appears that in the Fifth Circuit the choice to proceed in person or via a remote service is being done on a panel by panel basis. I was later able to clarify with the clerk's office that under FRAP 27(c) and the Fifth Circuit's internal operating procedures, requests for remote argument are single-judge motions that are routed through the presiding judge on the panel.**  According to that same article, other circuits are currently holding only remote arguments.

If COVID-19 has taught us anything it is (1) to stock up on toilet paper and (2) there are many things that can be done just as well (if not better) remotely.  I firmly believe that oral argument is one of those things.

Let’s think of the purpose of oral argument.  One of the key purposes of oral argument is to answer the judges’ questions—questions that stem from their review of the briefs and materials.  The Fifth Circuit is one of the courts that requires attorneys to request oral argument—and that request isn’t always granted. So, in cases that it is, the judges believe that a conversation with the attorneys will help them decide the case.  Having engaged in hundreds of conversations via Zoom over the last two years, including numerous student oral arguments, moots for real attorneys, and large faculty senate meetings, I just don’t see how that purpose of oral argument is diminished by a virtual format.

Another purpose of oral argument is to persuade the judges using your ethos. I do think that this can be harder to do remotely, but not impossible. I have blogged on this site, as have others, on tips for a successful remote argument. It is doable, just different.

I cannot think of any reason why an attorney who wants a remote argument, especially if the other side agrees, should not be allowed to present remotely—pandemic or not. And while there are countless reasons why remote argument should be allowed, I want to focus on two.  The first is cost. Why should the taxpayers pay flight, hotel, and per diem for an attorney to fly from D.C. to San Francisco or New Orleans or Anchorage to deliver a 10-minute oral argument when that attorney could appear remotely. Likewise, non-profit organizations that engage in advocacy work could experience tremendous cost savings with remote arguments.

The second reason is convenience. Convenience probably isn’t the best word, but it is all that I am coming up with right now.  As the mom of two very young kids (3.5 and 1.5), it is hard for me to leave town and travel. My spouse and I are fortunate enough to have family in town for half the year, and they stay at our house when either my husband or I are traveling. But, not everyone who is in a caretaking role is that lucky.  Remote arguments would allow me to have an appellate practice, but still be there at night to tuck in my kids at night. 

Allow me a real-life example. In June 2019 (yes, pre-pandemic!), I was set to travel to South Carolina to speak at the National Advocacy Center.  It was a pretty neat opportunity—I would be presenting to the Appellate Chiefs from the U.S. Attorneys Offices.  Shortly before the event, my son, who was 15 months old at the time, got very ill.  He was hospitalized for a few days, and I did not feel comfortable leaving town.  With the help of the U.S. Attorney’s Office in Tucson, I was still able to give my presentation remotely. I headed to their downtown office and used their video conferencing software. Since it was pre-pandemic, it was little bit of a clunky presentation, but overall I think that it was still effective. And, I was able to be home if my son’s condition regressed (thankfully it didn’t).

After nearly two years of pandemic I get that we are ready to be back to “normal.” But I don’t see any reason why “normal” can’t include some of the amazing technology advances that we have become accustomed to using. If you allow me one more story—my husband and I traveled last weekend to a conference and left our kids with my parents. It was the first time we had done so.  While we were driving to our destination, I called to check in on things and “chatted” with our 19-month-old. As we “talked” I could hear my mom telling her that this call didn’t include a video.  Afterwards, I reflected to my husband that our kids will only know a world where there is video calling. That is remarkable to me—I remember how novel it was when dad got a brick cellphone.  And while we can and should be careful that we don’t become addicted to technology, there is no reason we can’t use it to work smarter and more efficiently. And, if it allows me to have more hugs and slobbery toddler kisses at night, rather than staying alone in a hotel room, I am all for it.

*Edited to fix the name of the executive director of Fix the Court.

**After writing this post, I learned the underlined information from the clerk's office. I have updated the article to reflect that information.  A big thanks to the clerk's office for answering my questions. When in doubt, call the clerk!

February 7, 2022 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, Web/Tech | Permalink | Comments (1)

Sunday, January 30, 2022

Justice Breyer Retires

Justice Stephen Breyer’s announced retirement has brought forth retrospectives about his legacy as a pragmatist who cared about the real-life consequences of the Supreme Court’s decisions. Among the tributes was a heartfelt statement from Chief Justice John Roberts that revealed a little-known insider secret about Breyer: Breyer treated his colleagues to a “surprisingly comprehensive collection of riddles and knock-knock jokes."

To advocates before the Court, Breyer was known for his paragraphs-long questions that worryingly ate into your time and sometimes, as the Chief Justice said upon Breyer’s retirement, contained “fanciful hypotheticals … [that] have befuddled counsel and colleagues alike.” Breyer loquacious tendencies were well-known to him and used to make self-deprecating jokes. He was fond of telling the story that, once as a Harvard law professor, he received an anonymous note from a student, who wrote, “Professor Breyer, if I had only one hour to live, I should like to spend it in your class.” Breyer then notice that the back of the note had more to say: “That’s because only in your class does one hour seem an eternity.”

Breyer’s long tenure on the Court, 27 years, included a modern record of eleven years as the junior justice. The junior justice answers the door when the justices meet in conference. Justice Antonin Scalia would regularly have someone deliver a cup of coffee to the conference at its midpoint. When that happened, Breyer would dutifully answer the door and serve Scalia the coffee. After having done the job for ten years, Breyer reported that he said to Scalia, “I’m getting pretty good at this.” He said Scalia’s answer was, “No, you aren’t.”

Eleven years of performing a task can become a habit. At the first conference after Justice Samuel Alito succeeded Breyer as the junior justice, Breyer stood during conference as soon as he heard a knock at the door. Breyer stopped in his tracks when Roberts told him, “Steve, sit down, that’s not your job anymore.”

Another task of the junior justice is membership on the Court’s cafeteria. The Washington Post’s food critic, on more than one occasion, has not only given the food a failing grade, but suggested that its fare should be declared “unconstitutional.” Justice Elena Kagan calls the assignment a form of “hazing,” intended to bring a new justice down from the heights of having acquired a plum, life-tenured job at the height of the legal profession. Justices will purposely comment on how bad the food is and then ask who is on the cafeteria committee, “as if they don’t know!” Kagan said. Nonetheless, while it was his turn on the committee, Breyer dutifully would walk around the cafeteria from time to time, asking patrons about what could be improved. His innovations while a member of the committee: a salad bar and Starbucks coffee.

Breyer wrote two of the majority opinions in cases I argued at the Court and memorably filibustered in another oral argument when my opponent ran out of things to say, taking up the dead airtime. In the most recent decision he wrote in one of my cases, it was clear to me that he corralled the fifth vote I needed to prevail by writing about a topic that was left undecided and asking for lower court guidance.[1] In the earlier one, I was on the short end of a 5-4 decision.[2] The case returned to the Court two years later on the issue of whether the Oregon Supreme Court had defied the earlier decision by restoring our victory. Oregon allowed a 97:1 punitive to compensatory damage ratio after the Supreme Court held that a defendant had a right to have a jury instruction limiting the size of the punitive damages to the harm specific to the plaintiff, rather than others. Oregon subsequently held, as we had pressed all along, that the defendant’s requested jury instruction misstated Oregon law and that there was no error in refusing to give it.

In our return to the U.S. Supreme Court, the case turned on whether this “clear and correct in all respects” rule on jury instructions was well-established and regularly applied by the state courts. Breyer asked for my opponent’s best case on the issue. When I stood up, he soon asked me the same question. I had cited thirty-two cases over a 78-year period in my brief but replied that I am happy to rely on one case that both sides cited, because it really favored my client. Breyer chuckled and revealed that he had that case in front of him. He read a sentence to me that seemed to support the other side and asked me to explain it. My answer noted that he had left off the dependent clause of the sentence, which completely changed its meaning. He agreed, saying that he voted to grant certiorari because he believed the Oregon court was giving his court the “runaround.” He added, I do not believe that anymore. It was the signal I needed that, as turned out to be the case, the Court agreed with my suggestion that the case be dismissed as improvidently granted.[3]

Courts are institutions, but institutions made up of people. Understanding those individuals who serve as judges can influence how you brief or argue a case. Justice Byron White said the arrival of a new justice creates a new Court. Unquestionably, the dynamics can change, and the experience brought to the Court by the new justice can alter the perspective of those who remain. There is no doubt that Justice Breyer changed the Court with his arrival and had an impact on his colleagues’ outlook over his tenure. For at least one advocate, he figured importantly in a significant percentage of his cases.

 

[1] Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296 (2017)

[2] Philip Morris USA v. Williams, 549 U.S. 346 (2007).

[3] Philip Morris USA Inc. v. Williams, 556 U.S. 178 (2009) (mem.).

January 30, 2022 in Appellate Advocacy, Current Affairs, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, January 25, 2022

Chief Justice Roberts and what it means to be an “institutionalist” Supreme Court Justice.

    The term “institutionalist” is a broad label; its meaning depends upon the level of abstraction at which one describes the relevant institution. An institutionalist might seek to preserve long-standing norms within institutions (such as defending the filibuster in the Senate), or to preserve public faith in a particular government entity. On the Supreme Court, an institutionalist might seek to defend the rule of law in controversial case, or to uphold a robust and powerful conception of the judicial branch, or perhaps more narrowly to preserve the public’s faith in the Court itself as an entity worthy of public respect. Chief Justice Roberts’s jurisprudence often displays institutionalist tendencies concerned with the Court’s viability, even as he also seeks to preserve the judiciary’s independence and authority vis-à-vis coordinate branches. That tension was on display in the recent decisions over President Biden’s vaccine-or-test mandates.

    Roberts has frequently demonstrated his desire to preserve the independence of the Supreme Court, and with it the public’s faith in the Court’s ability to resolve weighty and complex legal issues. Throughout the political turmoil that marked the closing of President Trump’s term, Roberts expressed his desire to stay above the political fray and his faith in the Court to decide cases without political influence. In his 2021 year-end report on the federal judiciary, Roberts suggested that the political branches should return the favor by avoiding interference with the judiciary in the name of reforms that might weaken its status as a co-equal branch. Roberts’s jurisprudence also reflects his instinct to avoid overstepping the Court’s role in resolving politically-charged issues, most famously in his decision that preserved Obamacare to the surprise of many conservative court watchers. Roberts also speaks frequently of the need to build consensus amongst the Justices whenever possible to maintain the Court’s legitimacy in the public’s eyes.

    Roberts is thus surely an institutionalist in the sense that he seeks to preserve the Court’s capacity to resolve controversial issues in ways the public accepts. But at times that goal conflicts with institutionalism at a higher level of abstraction, which might require the Court to robustly define the law and forcefully rebuke the political branches that have, at least in Roberts’s view, overstepped constitutional bounds.

    That conflict was highlighted when the Court recently considered the Biden Administration’s vaccine-or-test mandate for large employers and its vaccine requirement for healthcare workers at facilities receiving Medicare and Medicaid funding. After hearing expedited oral arguments on whether those mandates could remain in place while ongoing legal challenges proceeded through the lower courts, the Court issued per curiam decisions that blocked the large employer mandate during the litigation while allowing the government to temporarily enforce the healthcare worker mandate. Chief Justice Roberts (as well as Justice Kavanaugh) voted to block the large employer mandate and permit the healthcare worker mandate, providing the swing votes that controlled the outcome.

    These decisions were only a preliminary stage of the legal proceedings, and technically addressed only whether Biden’s directives could be enforced while the outcome of legal challenges to them was pending. But because the decisions required the Court to consider the likelihood of the litigants’ success on the merits—and in so doing to plainly spell out their likely reasoning should the substantive legal issues return—they are likely to control the lifespan of those directives in the future.

    The decisions also highlight the tension in Roberts’s institutionalist instincts in such high-profile cases that consider the executive’s potentially expansive powers. The difference in the cases, according to the per curiam decisions, was that while Congress had not clearly authorized the Occupational Health and Safety Administration to issue the large employer mandate, it clearly delegated the Department of Health and Human Services authority to protect patients through a vaccine requirement. That distinction between the authorization of the OHSA and DHHS is razor-thin. As the dissent in the large employer mandate case noted, it is far from clear from an objective reading of their respective Congressional mandates. And the determination of the extent of Congressional authority delegated in such cases is surely a discretionary decision subject to widely varying judicial interpretations.

    While it is impossible to say definitively what motivated the votes in these cases, one plausible theory is that Roberts sought to preserve both a robust conception of the judiciary and public faith in the Supreme Court. By splitting his votes, he was able to offer some support for those concerned with the public health crisis posed by the COVID-19 pandemic while maintaining a robust role for the judiciary in setting the limits of co-equal branches’ authority. Perhaps Roberts hoped to preserve faith in the institution of the Supreme Court in the healthcare worker case while preserving a robust vision of judicial authority in the large employer case.

    Roberts may not be able to have it both ways; his compromise position seems likely to compromise both of his institutionalist desires. Public faith in the Court as an objective arbiter may be undermined when the court blocks a vaccine-or-test mandate that OHSA estimates would have saved nearly 6,500 lives. At the same time, preserving the healthcare worker mandate may undermine the judiciary’s institutional authority to push back against political branches that have, in the Court’s estimation, exceeded their constitutional boundaries. By attempting to preserve both of his institutionalist instincts, Chief Justice Roberts may have failed to preserve either. His voting decision is thus accompanied by both tragic human results and severe damage to the very institutions it seeks to protect.

January 25, 2022 in Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, January 23, 2022

Disparity's Relationship to Discrimination

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

But disparate outcomes among groups do not always reflect discrimination.

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

I.    Disparity does not equal discrimination.

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

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

Disparities exist everywhere. For example:

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

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

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

The majority of nurses are female.[5]

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

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

The majority of methamphetamine users are white.[8]

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

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

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

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

The quality of a person’s family upbringing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[12] See id.

[13] See id.

[14] See id.

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

[16] See id.

[17] See id.

[18] See id.

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

[20] See id.

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

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

January 23, 2022 in Appellate Justice, Appellate Practice, Books, Current Affairs, Law School, Legal Ethics, Legal Profession | Permalink | Comments (0)

Sunday, January 9, 2022

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Monday, January 3, 2022

2022 & The Marble Place Blog

Robert has already welcomed 2022 in his post yesterday. He provided some predictions regarding several big cases before the Supreme Court this year. Two other big cases, which address federal vaccine mandates, will be heard this Friday. I suspect we will get an expedited decision in those cases given the effective dates of the policies.

Speaking of the Supreme Court, noted Supreme Court journalist Tony Mauro has a new blog that he has aptly named The Marble Palace Blog. He recently blogged about the most recent issue of the Journal of Appellate Practice and Process, which addresses what judges can do to ameliorate the divisions in our country. Tony was one of the authors I recruited to write a preface for the issue, which I discuss here.

In his post, Tony pulls key excerpts from seven diverse pieces. Each excerpt offers a tangible step that lawyers and judges can take to address the cultural and political divisions in our country. While some of the steps would take much political capital to institute (a non-partisan nominating commission for federal judges and justices), others are simple in theory (be role models and civil, even when you disagree).

Given the hot button issues that the Court has to decide this year--guns, abortion, vaccine mandates, presidential privilege--we know that there will be ample opportunity to practice some of the steps outlined by Tony and the authors of the special issue. I hope we as lawyers (and judges for our judicial readership) take seriously our responsibility to serve as role models for our communities.

Happy New Year!

January 3, 2022 in Appellate Advocacy, Current Affairs, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, December 26, 2021

Prediction: Dobbs v. Jackson Women’s Health

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

A.    Background

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

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

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

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

B.    Dobbs v. Jackson Women’s Health

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

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

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

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

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

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

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

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

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

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

 

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

[2] See id.

[3] See id.

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

[5] See id.

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

[7] Id.

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

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