Saturday, January 16, 2021
It’s no surprise that opinions regarding the constitutionality – and wisdom – of the death penalty vary greatly among judges, legal scholars, commentators, and the public.
Arguments concerning the death penalty consist primarily of the theoretical and the practical. Regarding the theoretical component, some may argue that the death penalty rightfully expresses society’s moral condemnation of and outrage toward heinous criminal acts, such as domestic terrorism (e.g., Timothy McVeigh’s bombing of a federal building in Oklahoma, which killed over 160 people) and premeditated murder, particularly murders that involve torture, children, and multiple victims (e.g. Ted Bundy’s premeditated killings of dozens of women). Others may argue that the intentional murder of an individual by the government, particularly where less severe measures can ensure public safety and exact severe punishment (e.g., life imprisonment), is inherently wrong. Certainly, theoretical disagreements involve a variety of religious, philosophical, and moral perspectives, all of which lead to reasonable disagreements concerning the death penalty’s theoretical justifications.
The practical component, however, reveals facts that cannot arguably be disputed. For example, although the Supreme Court held decades ago that the death penalty must be reserved for the “worst of the worst,” the evidence suggests that executions do not even remotely adhere to this principle. First, innocent individuals have been executed; if there is any doubt about this fact, one need only consider the hundreds of death row inmates who, after convictions and pending execution, were freed when evidence surfaced to demonstrate their innocence. Second, many individuals who have been executed suffered from severe mental health issues, intellectual disability, and brain damage. Third, many individuals on death row were raised in horrifically abusive and impoverished families. Fourth, many young people, whose brains had not yet fully matured, have been executed. Fifth, the likelihood of receiving the death penalty depends in substantial part on a defendant's socioeconomic status, a defendant's state of residence, the quality of a defendant’s attorney, and a defendant's (and victim's) race. Sixth, empirical evidence suggests that the death penalty does not deter crime; in states that outlaw the death penalty, the murder rate is lower than in states that authorize the death penalty. Seventh, substantial evidence exists that the most common method of execution – lethal injection – leads to intolerable suffering.
The United States Supreme Court is well aware of these problems and the Court has repeatedly strived to limit the death penalty's application. For example, in Furman v. Georgia, the Court recognized that the death penalty was often arbitrarily imposed and required states to develop criteria that would lead to fairer and more standardized decisions regarding when and under what circumstances the death penalty would be imposed. Likewise, in Roper v. Simmons, the Court held that the Eighth Amendment prohibited the execution of individuals for crimes committed while under the age of eighteen. Additionally, in Atkins v. Virginia, the Court held that the Eighth Amendment prohibited the execution of intellectually disabled defendants. And in Hall v. Florida, the Court held that a defendant’s IQ score alone could not be the basis for determining intellectual disability.
However, the practical problems regarding the death penalty remain. As Justice Stephen Breyer emphasized in his noteworthy dissent in Glossip v. Gross, the death penalty continues – for a variety of reasons related to race, socioeconomic status, and geography – to be unfairly and often arbitrarily imposed. Justice Breyer was correct. These problems render the death penalty's administration troubling as a matter of law and policy.
Indeed, the time has long passed for the United States Supreme Court to address the death penalty’s constitutionality. But the Court has repeatedly refused to do so, whether through denying certiorari or refusing last-minute petitions to stay executions despite evidence that, at the very least, warranted further review. Nowhere was this more evident than recently, when the Court, over the vigorous dissents of Justices Sonya Sotomayor and Stephen Breyer, allowed the federal government to execute the thirteenth death row inmate in the last six months. In so doing, the Court made no attempt to address the persistent and ongoing issues relating to the fairness of imposing the death penalty. These issues exist – and they aren’t going away.
After all, if the likelihood of receiving the death penalty depends in substantial part on race, socioeconomic status, and geography, how can the death penalty be anything but arbitrary? And if the individuals executed are overwhelmingly poor, mentally ill, or cognitively impaired, how can we plausibly claim that they are the worst of the worst? We can’t.
Until the Supreme Court addresses these issues, the death penalty will be administrated under a cloud of illegitimacy and injustice. And when the Court finally does confront such issues, the death penalty will likely be relegated to the “graveyard of the forgotten past.”
 408 U.S. 238 (1972).
 543 U.S. 551 (2005).
 536 U.S. 304 (2002).
 572 U.S. 701 (2014).
 576 U.S. , 135 S. Ct. 2726 (Breyer, J., dissenting).
 See James Romoser (Jan. 16, 2016), available at: Over sharp dissents, court intervenes to allow federal government to execute 13th person in six months - SCOTUSblog
 In re Gault, 387 U.S. 1 (1967) (internal citation omitted).
Sunday, December 13, 2020
Tired of online court, school, happy hour, family holidays, and more? Me too. However, we also know some form of virtual court is here to stay, and based on the number of great pointers judges from across the county have shared with us this month, we can all still improve.
Moreover, in reflecting on the tips I’ve seen lately, I was struck by how many of these pointers apply to any argument, in-person or virtual, and how they track what we have long told law students in moot court. As we evolve from a largely in-person court system, where we had some telephonic and online conferences, to our future, which could involve many more electronic appearances, we should not lose sight of those moot court pointers from law school. And for those of us teaching oral advocacy, we should remember to share best practices for preparation and professionalism which will serve our students in any argument, online or in-person.
Recently, Judge Pierre Bergeron shared helpful tips on preparing for oral argument. You can see his blog here: Judge Pierre Bergeron's Tips. He advises counsel to practice, with a moot court if possible, know the record and case law, provide a roadmap of argument points at the beginning, and be especially cognizant of the need to pause periodically “in an effort to invite questions.” Id. These tips apply equally to in-person arguments.
Similarly, Madison Alder’s piece for Bloomberg Law, Wear Pants, Sequester Pets: Five Tips From Judges for Zoom Court, has excellent advice from judges for online arguments and court appearances in general. See Madison Alder, Wear Pants, Sequester Pets (Bloomberg Dec. 8, 2020). As Alder notes, the “virtual venues have worked so well,” some “courts plan on using them long after the virus is gone.” Id. Therefore, all lawyers who appear in court need to be as proficient in online argument as they hopefully are for in-person proceedings.
Online court platforms vary (federal courts often do not use Zoom, for example), just like courthouses, and “’Lawyers should prepare themselves for venues they’re not familiar with,’” said Chief Judge William Johnson of the District New Mexico. See id. Thus, “preparing a presentation ahead of time is still crucial.” Id. Just as in traditional courthouses, counsel should practice standing at a podium or sitting and looking directly at a webcam. See id. I advise my students to distill their oral argument notes to just one piece of paper, supported by one binder of organized cases and record pages to take to the podium, and that format works well online, where paper shuffling can be magnified on Zoom.
Somehow, despite myriad reminders to dress professionally, we still hear frequent complaints from the bench about attorney attire. Alder recommends: “Dressing properly means wearing professional attire from head to toe, not just head to waist.” Id. “’You never know when you’ll need to stand up in a pinch, which can make for an embarrassing moment if you’re wearing shorts,’ Illinois Supreme Court Chief Justice Anne Burke said.” Id. The key: “’Besides the same make-sure-you’re-communicating-well lessons that apply in a courtroom—is remembering that this is a courtroom and a formal proceeding. Zoom can make people less formal,’” Southern District of Texas Chief Judge Lee Rosenthal said. Id.
We teach law school moot court advocates not to read from notes, allowing them to “read the bench” and make eye contact with judges. This lesson matters even more for online arguments, where the format makes true eye contact impossible. To be as present as possible, online lawyers (and students) should “make sure they do things like keeping the dogs in the other room, closing the window if the lawnmower is going, and making sure their children aren’t there,” said Chief Judge Rosenthal. Id.
Finally, we all need to be more attentive to virtual context clues in online arguments. “The virtual platform makes it more important for lawyers to pay attention to the tone of a judge’s voice, Jed Rakoff, a senior judge in the Southern District of New York, said.” Id. Tuning in to a judge’s tone is important for lawyers “’because that’s the main remaining clue as to whether they’re scoring or not,’” Rakoff said. Id. As Eastern District of California Chief Judge Kimberly Mueller explained, “It’s as important as ever to pay attention to the judge’s signals, so if you are talking too long, be ready to wind up.’” Id. And, using Judge Bergeron’s point on pausing to allow questions, online advocates should watch for judges’ body language showing they are about to unmute or ask a question.
In my house, with two adults working full-time online and a high school student taking online classes while managing a Zoom social and extracurricular schedule, we are weary of an online-only world. I know many law students and lawyers feel the same way. But at least we can find a silver lining (in addition to the great commute) from the online court experience, as the skills we must hone for the best online arguments will make us better advocates in-person too.
December 13, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Sunday, November 29, 2020
In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, the Roman Catholic Diocese of Brooklyn sought emergency injunctive relief, claiming that an Executive Order issued by Governor Andrew Cuomo regarding, among other things, capacity limits at houses of worship, violated the Free Exercise Clause of the First Amendment.
The Free Exercise Clause provides citizens with the liberty to freely hold and practice religious beliefs without government interference. The right to freely exercise religion, however, is not absolute, and the United States Supreme Court’s jurisprudence has established several principles regarding the scope of religious liberty. First, although the government may not regulate religious beliefs, it may, in some circumstances, regulate religious practices. Second, the government may not enact laws that impose a substantial burden on religious practices. Third, courts may not assess the validity of particular religious beliefs when deciding if the Free Exercise Clause’s protections apply. Fourth, the government may not coerce individuals into acting contrary to their religious beliefs. Fifth, the government may not target or discriminate against religion generally or specific religious denominations.
In Roman Catholic Diocese of Brooklyn, New York, the issue concerned whether Governor Cuomo’s Executive Order impermissibly targeted houses of worship for disparate treatment. By way of background, in response to the rising rates of Covid-19 infections in New York, Governor Cuomo adopted a color-coded microcluster model that designated areas of New York as red, orange, or yellow zones. These zones were defined as follows:
Red zones: areas where the seven-day rolling positivity rate was above 4% for ten days.
Orange zones: areas where the seven-day rolling positivity rate was above 3% for ten days.
Yellow zones: areas where the seven-day rolling positivity rate was above 2.5% for ten days.
In red zones, no more than ten persons were permitted to attend religious services, and in yellow zones, no more than twenty-five persons could attend religious services, regardless of the seating capacity of a particular house of worship. In these same zones, however, all businesses deemed “essential,” which included acupuncture facilities and liquor stores, were not subject to these capacity restrictions. Furthermore, in “orange” zones, even “non-essential” businesses were not subject to any capacity restrictions.
In a 5-4 decision, the United States Supreme Court held that Governor Cuomo’s restrictions on gatherings at various houses of worship in red and orange zones violated the Free Exercise Clause. To begin with, the Court held that these restrictions did not constitute “laws of general applicability” (i.e., the capacity limits applied exclusively to places of worship), and thus applied strict scrutiny, which required New York to demonstrate that the Executive Order furthered a compelling government interest, was narrowly tailored, and constituted the least restrictive means of achieving the asserted governmental interest.
Although holding that the interest in reducing the spread of Covid-19 was undoubtedly compelling, the Court held that the restrictions were not narrowly tailored. For example, the capacity limits could have been tied to the size of a church or synagogue, particularly given that, in the red and orange zones, fourteen churches could accommodate at least 700 people, and two could accommodate at least 1,000 people. Given these facts, the Court noted that “[i]t is hard to believe that admitting more than 10 people to a 1,000-seat church or 400-seat synagogue would create a more serious health risk than the many other activities that the State allows.” Moreover, as Justice Neil Gorsuch stated in his concurring opinion, these restrictions applied “no matter the precautions taken, including social distancing, wearing masks, leaving doors and windows open, forgoing singing, and disinfecting spaces between services.” This was particularly troublesome given that, as Justice Gorsuch stated, secular businesses deemed “essential” faced no similar restrictions:
[T]he Governor has chosen to impose no capacity restrictions on certain businesses he considers “essential.” And it turns out the businesses the Governor considers essential include hardware stores, acupuncturists, and liquor stores. Bicycle repair shops, certain signage companies, accountants, lawyers, and insurance agents are all essential too. So, at least according to the Governor, it may be unsafe to go to church, but it is always fine to pick up another bottle of wine, shop for a new bike, or spend the afternoon exploring your distal points and meridians. Who knew public health would so perfectly align with secular convenience?
Additionally, Justice Gorsuch explained that the differential treatment of places of worship implicated precisely the type of discrimination that the Free Exercise prohibited:
People may gather inside for extended periods in bus stations and airports, in laundromats and banks, in hardware stores and liquor shops. No apparent reason exists why people may not gather, subject to identical restrictions, in churches or synagogues, especially when religious institutions have made plain that they stand ready, able, and willing to follow all the safety precautions required of “essential” businesses and perhaps more besides. The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids.
Thus, the restrictions, “by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.”
Chief Justice Roberts dissented, arguing that, because Governor Cuomo had recently re-codified the areas in question as yellow zones, and thus removed the restrictions on the houses of worship in question, the issue was essentially moot. For this reason, although questioning the constitutionality of Governor Cuomo’s Executive Order, Chief Justice Roberts did not believe that the Court needed to decide the issue at this juncture.
Justice Sotomayor, joined by Justice Kagan, also dissented, arguing that the restrictions treated houses of worship identically to other similarly situated businesses. In her dissent, Justice Sotomayor relied on the Court’s prior decisions in South Bay United Pentecostal Church v. Newsom and Calvary Chapel Dayton Valley v. Sisolak, where the Court held that the government may restrict attendance at houses of worship provided that comparable secular institutions faced equally restrictive measures. Based on these decisions, Justice Sotomayor argued that the Executive Order passed constitutional muster because it imposed equally stringent restrictions on other activities where “large groups of people gather in close proximity for extended periods of time,” such as “lectures, concerts, movie showings, spectator sports, and theatrical performances,”  Put differently, the Executive Order treated differently “only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.”
Regardless of what one thinks of the Court’s decision, the justices’ opinions were quite revealing for other reasons.
1. Chief Justice John Roberts and Justice Neil Gorsuch aren’t best friends
Based on the language and tone of their opinions, it appears that tension exists between Chief Justice Roberts and Justice Neil Gorsuch. For example, in his concurrence, Justice Gorsuch severely criticized Chief Justice Roberts’s concurrence in South Bay United Pentecostal Church, stating as follows:
What could justify so radical a departure from the First Amendment’s terms and long-settled rules about its application? Our colleagues offer two possible answers. Initially, some point to a solo concurrence in South Bay Pentecostal Church v. Newsom, 590 U. S. ___ (2020), in which THE CHIEF JUSTICE expressed willingness to defer to executive orders in the pandemic’s early stages based on the newness of the emergency and how little was then known about the disease. At that time, COVID had been with us, in earnest, for just three months. Now, as we round out 2020 and face the prospect of entering a second calendar year living in the pandemic’s shadow, that rationale has expired according to its own terms. Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical. Rather than apply a nonbinding and expired concurrence from South Bay, courts must resume applying the Free Exercise Clause.
In fact, Justice Gorsuch went so far as to suggest that Chief Justice Roberts, by refusing the rule on the merits, was concerned more with political rather than legal considerations:
In the end, I can only surmise that much of the answer [to why the dissenters did not find the Executive Order unconstitutional] lies in a particular judicial impulse to stay out of the way in times of crisis. But if that impulse may be understandable or even admirable in other circumstances, we may not shelter in place when the Constitution is under attack. Things never go well when we do.
In Justice Gorsuch’s view, “[t]o turn away religious leaders bringing meritorious claims just because the Governor decided to hit the “off ” switch in the shadow of our review would be, in my view, just another sacrifice of fundamental rights in the name of judicial modesty.”
Chief Justice Roberts responded to Justice Gorsuch’s concurring opinion in an equally dismissive tone, stating as follows:
To be clear, I do not regard my dissenting colleagues as “cutting the Constitution loose during a pandemic,” yielding to “a particular judicial impulse to stay out of the way in times of crisis,” or “shelter[ing] in place when the Constitution is under attack.” Ante, at 3, 5–6 (opinion of GORSUCH, J.). They simply view the matter differently after careful study and analysis reflecting their best efforts to fulfill their responsibility under the Constitution.
The tone of both opinions suggests that Chief Justice Roberts and Justice Gorsuch are not the best of friends. The reason is likely that Justice Gorsuch, an originalist who strives to uphold the rule of law regardless of an outcome’s desirability, views Chief Justice Roberts as capitulating to, even prioritizing, political considerations over principled legal analysis.
2. Chief Justice Roberts is arguably prioritizing politics over the rule of law
Chief Justice Roberts’s approach to deciding cases has changed considerably from his previously expressed fidelity to originalism and to a modest judicial role that, in his words, was analogous to umpires calling balls and strikes.
Indeed, as Justice Gorsuch intimated, in some cases Chief Justice Roberts appears more concerned with preserving the Court’s institutional legitimacy than with engaging in principled legal analysis. And the consequences are likely to cause precisely the result that Roberts seeks to avoid: the politicization of the judiciary. After all, what is the criteria by which to decide whether a decision will preserve the Court’s legitimacy? Little more than a justice’s subjective values. Put differently, concerns regarding what constitutes a “legitimate” decision are predicated on nothing more than prevailing political attitudes rather than principled legal considerations. Such an approach abdicates the judicial role and weakens the rule of law. As Justice Gorsuch stated, “we may not shelter in place when the Constitution is under attack.”
Additionally, Chief Justice Roberts’s jurisprudence suggests that he lacks a coherent judicial philosophy. On one hand, for example, in Shelby County v. Holder, Chief Justice Roberts voted to invalidate two provisions of the Voting Rights Act in (despite a vote of 98-0 to re-authorize these provisions), but on the other hand, in National Federation of Independent Investors v. Sebelius, Roberts went to great – and dubious – lengths to uphold the Affordable Care Act. This is just one of many examples where Chief Justice Roberts’s adherence to certain principles, such as deference to the coordinate branches, is inconsistent and unpredictable.
Simply put, Chief Justice Roberts’s focus on preserving the Court’s legitimacy is likely to cause the very result he so ardently seeks to avoid, namely, politicizing the Court and the judiciary.
3. Ideology continues to influence the justices’ decisions
It is not difficult to predict how the justices will rule in cases involving, for example, the Fourth, Eighth, and Fourteenth Amendments. Indeed, the justices’ decisions in such cases often coincide with their perceived ideological preferences. For example, in cases involving affirmative action, it is all but certain that Justice Sonia Sotomayor will vote to uphold almost any affirmative action policy. In cases involving abortion, it is all but certain that Justices Clarence Thomas and Samuel Alito will vote to uphold restrictions on abortion and argue for the overturning of Roe v. Wade.
Not surprisingly, the Court’s 5-4 decisions often predictably split along ideological lines. Some may argue that these decisions reflect the justices’ different judicial and interpretive philosophies, but the fact remains that such decisions almost always coincide with the justices’ policy predilections. And that is precisely what has politicized the judiciary.
These and other concerns lead to the conclusion that perhaps the best way for the Court to preserve its legitimacy is for it to deny certiorari in politically and socially divisive cases where the Constitution’s text is silent or ambiguous. Simply put, the Court should leave more disputes to the democratic process.
 592 U.S. (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).
 See Reynolds v. United States, 98 U.S. 145 (1878)
 See Wisconsin v. Yoder, 406 U.S. 205 (1972).
 See United States v. Ballard, 322 U.S. 78 (1044).
 See Lyng v. Northwest Indian Cemetery Protective Ass’n, 485 U.S. 439 (1988).
 See Church of Lukumi Babalu Aye, Inc., v. City of Hialeah, 508 U.S. 520 (1993).
 See Lisa L. Colengelo, Yellow, Orange, and Red: How New York’s Covid-19 Microclusters Work (Nov. 24, 2020), available at: Yellow, orange and red: How New York's COVID-19 microclusters work | Newsday
 592 U.S. (2020), available at: 20A87 Roman Catholic Diocese of Brooklyn v. Cuomo (11/25/2020) (supremecourt.gov).
 See id.
 See id.
 See id.
 Id. (Gorsuch, J., concurring)
 See id.
 See id. (Justice Breyer also dissented on similar grounds).
 See id. (Sotomayor, J., dissenting).
 See id.; South Bay United Pentecostal Church v. Newsom, 590 U.S. , (2020), available at; 19a1044_pok0.pdf (supremecourt.gov); Calvary Chapel Dayton Valley v. Sisolak, 591 U.S. , available at: 19a1070_08l1.pdf (supremecourt.gov)
 Id. (Sotomayor, J., dissenting).
 Id. (Gorsuch, J. concurring).
 Id. (Roberts, J., concurring).
 Id. (Gorsuch, J., concurring).
Tuesday, November 10, 2020
We tend to think that the most recent election is uniquely important, and any irregularity is quickly magnified. A short history of just a few of the many contested U.S. Presidential elections shows that elections are often messy, and that legal intervention of some sort (either by a change in the law or by court ruling) has frequently been the remedy. That review may also give us a glimpse of what to expect this year.
The first major election dispute was in 1800, when the Jefferson ran against Adams. Jefferson's party, the Democratic Republicans, handily won, and the party electors dutifully wrote down the names of both the presidential candidate (Jefferson) and the vice-presidential candidate (Burr). This resulted in a tie. The vote thus went to the House, which was controlled by the Federalists, and in which Burr refused to concede his position to Jefferson, thinking that the Federalists might prefer him and he could thus win the presidency. In the end, the House chose Jefferson, and, eventually, the 12th Amendment was passed to prevent a repeat tie.
In 1836, there were four candidates for president. Jackson won the popular vote, but with no majority in electoral votes, the election once again went to the House. The House dropped the fourth candidate with the lowest votes (Clay), and Adams managed to capture most of those elector's votes, possibly because he promised Clay a cabinet position. As a result, for the first time, the person who won the popular vote did not win the presidency.
In 1876, Tilden ran against Hayes, and Tilden won the popular vote. However, when the electoral college met, Tilden came up one vote short of winning, with 20 electoral votes being disputed by their states (each party claiming the votes for themselves). For the first time, the Supreme Court had a role in deciding who won - a commission was formed with 5 senators, 5 congressmen, and 5 Supreme Court Justices. The commission was supposed to be equally split, 7-7, between the parties, with one independent being chosen by the Justices, in this case, Justice Davis. When Davis was selected to serve as a Senator, he was replaced by a Justice Bradley, who, it turned out, voted entirely with the Republicans, and the commission decided 8-7 to award Hayes all of the votes. After numerous compromises (including, allegedly, the Compromise of 1877, ending Reconstruction) and bargains between the political parties, Hayes was sworn in accord with the commission's decision.
In 2000, Al Gore won the popular election against George W. Bush by .5%. However, the electoral vote remained unknown until Florida completed its vote count on November 8, resulting in a win by George W. Bush by just over 300 votes (later rising to 900 when mail-in ballots were counted), giving him 271 electoral votes. Issues with "hanging chads" and purported fraud resulted in a call for a hand recount in some counties. That recount resulted in a 537 vote win for Bush, certified on November 26.
Gore challenged the vote. He lost his challenge in a lower state court, but won in the Florida Supreme Court, which issued an order on December 8 requiring a recount of the 70,000 votes recorded as "undervotes" by the voting machines. The next day, the U.S. Supreme Court issued an order staying the Florida Supreme Court's order, treating the application for the stay as a writ of certioari, granting the writ, and setting the case for a 1 1/2 hour oral argument on December 11.
On December 12, the Court issued a 7-2 per curiam decision ordering that the recount stop, based on equal protection grounds, given the different standards of counting that were being used in different counties. Justices Breyer and Souter recommended that a statewide recount be held prior to the December 18th meeting of electors, but because the State of Florida had stated that it intended to meet the discretionary December 12 “safe harbor” deadline set by U.S. Election Code (3 U.S.C. §5), the court ruled 5-4 to reject that remedy. In the end, there was no time left to do anything but certify the original vote.
As you can see, the 2000 election was the first time the Supreme Court directly intervened in a State's efforts to decide an election recount. The division reflected in the court's opinions showed a tensions between two goals - ensuring a proper process to determine legal votes, and making sure that every vote is counted. Scalia's initial concurrence to the stay summarized the issue nicely from his perspective: each recount was alleged to physically degrade the paper ballots, so if the process being utilized was incorrect, counting the ballots first might actually mean that counting the ballots under a proper process, later, might become impossible.
It seems likely that there will be recounts in the 2020 election. In some states, those recounts will occur statewide. In others, they may be called on a district-by-district basis.
Political compromise, the main method in determining earlier close elections, seems unlikely. Court challenges, however, are already in the works. Methodologies for recounts have been largely standardized, so any machine recount should be done fairly quickly and with fewer potential challenges (hand recounts may be a different matter). This is important, because Bush v. Gore gave great weight to the State of Florida's election code and deadlines. Unlike the Franken-Coleman senate-race recount and court challenge, which took almost nine months, presidential recount challenges are very time sensitive. Any challenges to the recounts because of election fraud are thus also likely going to have to be decided within this narrow timeframe.
Already, though, Trump's legal teams are making equal-protection arguments, showing that they are also closely reading the Bush v. Gore playbook. There are claims that mail-in and in-person ballots are treated differently. There are suggestions that count observations are also done differently in different districts. However, to date, none of these allegations show as concrete a difference as the way those "hanging chads" or "dimpled chads" were being counted in each county in Florida. And the ticking clock for election deadlines means that any challenge will need to be equally clear if it has any hopes of resolution in time.
(image credit - Thomas Nast, Harper's Weekly, February 17, 1877, commenting on the compromise of 1877 that eventually resolved the 1876 election, Library of Congress Prints and Photographs Division, public domain)
Sunday, November 1, 2020
In the wake of Amy Coney Barrett’s ascendency to the United States Supreme Court, several elected officials and commentators have suggested that the next president should pack the Court, namely, add more justices to ensure a political and ideological balance. These concerns are predicated, in part, on the belief that the Court has become too conservative and, under an originalist framework, will eviscerate various civil rights and protections. For example, some commentators contend that the Court will, among other things, invalidate the Affordable Care Act and restrict, if not eliminate, abortion rights and same-sex marriage. These arguments – and the unquestionable divisiveness that has characterized recent confirmation hearings – demonstrate that the Court has become an increasingly politicized institution. And the politicization of the Court threatens its institutional legitimacy and, ultimately, the rule of law itself.
In response to calls to pack the Court, presidential candidate Joe Biden recently announced that, if elected, he would form a commission to suggest reforms to the judiciary:
If elected, what I will do is I'll put together a national commission of — bipartisan commission of scholars, constitutional scholars, Democrats, Republicans, liberal, conservative. And I will ask them to over 180 days come back to me with recommendations as to how to reform the court system because it's getting out of whack.
But packing the Court is not the answer. Adding additional justices will only further politicize the Court, as future presidents will continue to appoint justices whose interpretive philosophy suggests that such justices will reach decisions that comport with a president’s policy predilections. This does not mean, however, that reforms are unnecessary. Below are a few suggestions that would likely de-politicize the Court, preserve the judiciary’s institutional legitimacy, and protect the rule of law.
1. Require a 6-3 supermajority to affirm or reverse lower court decisions
Much of the Court’s politicization has resulted from controversial 5-4 decisions regarding socially and politically divisive issues, such as the rights to abortion and same-sex marriage, and the constitutionality of the Affordable Care Act. These decisions have often divided the Court along perceived ideological lines, the consequence of which has been to undermine the Court’s legitimacy and erode public confidence in the judiciary.
Requiring a six-vote supermajority would avoid substantially the problems that 5-4 decisions engender. Specifically, a supermajority requirement would promote moderation because it would require the justices to compromise and thus would reduce, if not eliminate, the influence of ideology on judicial decision-making. As such, the Court would likely avoid the types of decisions that cause a political backlash, either by refusing to grant certiorari in such cases or reaching narrower decisions that effectuate incremental, rather than sweeping, changes in the law. Additionally, this approach is arguably more democratic because it would prevent, at least in some contexts, nine unelected and life-tenured judges from deciding what the law should be for all fifty states.
2. Deny certiorari in cases where a legal issue is politically divisive and the Constitution is ambiguous.
In recent decades, the Court has decided cases involving politically divisive issues where the Constitution, either through silence or ambiguity, does not clearly resolve that issue. It should come as no surprise, therefore, that such decisions are often decided on a 5-4 basis and engender substantial criticism. For example, in National Federation of Independent Investors v. Sebelius, the Constitution provided no clear answer regarding whether the Affordable Care Act, particularly the individual mandate, violated the Commerce Clause. Given this fact, and given that the Act had been passed by both houses of Congress and signed by President Obama, why did the Court get involved? The result was a 5-4 decision that engendered more criticism than praise, and that undermined, rather than preserved, the Court’s legitimacy. Likewise, in Clinton v. New York, both houses of Congress and President George H. W. Bush signed into law the line-item veto. Notwithstanding, the Court invalidated the legislation, holding that it violated the Presentment Clause even though the Clause, largely because of its broadly worded language, did not provide sufficient, if any, guidance regarding its constitutionality. Again, why did the Court get involved?
Put simply, the Court should be reluctant to grant certiorari in politically or socially divisive cases unless the law or a lower court opinion plainly violates a provision in the Constitution (not the “penumbras” created in Griswold v. Connecticut). Instead, it should defer to the coordinate branches – and to democratic choice.
3. Allow the Supreme Court to issue advisory opinions
The conventional wisdom is that advisory opinions violate the “case or controversy” requirement in Article III of the Constitution. But the lack of a specific case does not mean that there is no controversy. The word “controversy” can be construed to enable the Court, in some circumstances, to issue advisory opinions regarding a law’s constitutionality.
Such an approach would have substantial benefits. To begin with, it would empower the Court to resolve important legal issues quickly and efficiently. Currently, cases challenging a law’s constitutionality typically take years to reach the Court and frequently involve alleged violations of fundamental rights. And during this time, the federal courts of appeals often reach opposite conclusions, which creates uncertainty and instability in the law. Perhaps most importantly, if the Court in such cases ultimately decides that a law violates a fundamental right, it means that, for the several years that it took to reach the Court, individuals were being consistently deprived of a particular constitutional protection. Furthermore, given the rapid pace at which technology is advancing, allowing the Court to issue advisory opinions in cases concerning the constitutionality of, for example, searches and seizures, would bring much-needed efficiency, clarity, fairness, and stability to the law. Of course, advisory opinions would be appropriate only in situations that are tantamount to a facial challenge to a statute and thus involve purely legal questions. Some may argue that this approach would likely violate the separation of powers by giving the Court impermissible authority to encroach on the lawmaking process. But if the Court is ultimately going to decide the question after protracted litigation, the argument regarding the separation of powers is unconvincing.
Ultimately, to the extent that reforms are needed, they should focus on giving the Court (and lower courts) less power to resolve politically and socially divisive issues, but more power to resolve other issues in an efficient manner. Part of the solution may involve requiring a six-vote supermajority, denying certiorari in particular cases, and enabling the Court issue advisory opinions. Court-packing, however, is not the answer. It should be rejected.
 Caitlin Oprysko, After dodging questions about court packing, Biden floats commission to study judicial reforms (Oct. 22, 2020), available at: https://www.politico.com/news/2020/10/22/joe-biden-court-packing-judicial-reforms-commission-431157.
 567 U.S. 519 (2012).
 524 U.S. 417 (1998).
 381 U.S. 479 (1965).
November 1, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (1)
Sunday, October 18, 2020
Amy Coney Barrett will almost certainly be confirmed to the United States Supreme Court – and deservedly so. Judge Barrett is an extraordinary legal scholar and judge, and numerous former colleagues and students have emphasized that she is a person of outstanding character, integrity, and compassion.
Additionally, Judge Barrett is an originalist, which is a theory of constitutional interpretation that requires judges to interpret the Constitution’s words as they were understood by those who drafted its provisions. Yet, originalism has been criticized by many in the legal academy. For example, some scholars claim that originalism leads to unjust and often draconian results, and fails to account for societal changes that the Constitution’s drafters could not foresee. Some scholars also assert that the broad phrasing of many provisions in the Bill of Rights suggests that the Constitution’s drafters entrusted future generations with the authority to divine constitutional meaning based on contemporary societal attitudes. For these and other reasons, many scholars embrace “living constitutionalism,” which states that the Constitution is a “living document” and that judges have the power to create constitutional meaning based upon the evolving needs of contemporary society.
These assertions both misunderstand originalism and misrepresent living constitutionalism. The former is, when properly applied, intellectually honest and fundamentally democratic. The latter is neither. For the following reasons, originalism is, without a doubt, the most sensible and commonsense approach to constitutional interpretation.
Originalism does not lead to unjust outcomes. The notion that originalism leads to unjust outcomes is nonsense. This argument misunderstands both originalism and the nature of judging. First, judges should not – and usually do not – decide cases based on the outcome that a judge desires or the policy that a judge prefers. If judges predicated their decisions on subjective policy preferences – and manipulated or disregarded the Constitution’s text to achieve those preferences – democratic choice would be undermined in favor of nine unelected and life-tenured judges. In essence, originalists recognize that the process of judicial decision-making is critically important to ensure, among other things, individual liberty, de-centralization, bottom-up lawmaking, and the judiciary’s institutional legitimacy. Second, originalism does not lead to objectively unjust outcomes; rather, critics of originalism only object to outcomes with which they subjectively disagree. Of course, that is not a reason to criticize originalism. As Justice Neil Gorsuch explains:
Suppose originalism does lead to a result you happen to dislike in this or that case. So what? The “judicial Power” of Article III of the Constitution isn’t a promise of all good things. Letting dangerous and obviously guilty criminals who have gravely injured their victims go free just because an officer forgot to secure a warrant or because the prosecutor neglected to bring a witness to trial for confrontation seems like a bad idea to plenty of people. But do you really want judges to revise the Constitution to avoid those “bad” results? Or do you believe that judges should enforce the law’s protections equally for everyone, regardless of how inefficient or unpopular or old the law might be? Regardless of who benefits today—the criminal or the police; the business or the employee; immigrants or ICE?
Moreover, to the extent that an outcome is considered unjust, the remedy is to effectuate change by the people through the legislative process – or through a constitutional amendment.
Originalism is fundamentally democratic. Originalism restrains and limits the power of judges to change constitutional meaning. It requires judges to interpret the text honestly and in accordance with what the Constitution’s drafters understood the words to mean. In so doing, originalism promotes respect for the rule of law, prevents unelected judges from substituting their policy preferences for those of legislators and citizens, and preserves a constitutional structure predicated on federalism, separation of powers, and decentralization. As Judge Barrett stated during the hearings, constitutional law is not “the law according to Amy,” but the law as enacted by the people. And contrary to some scholars’ contentions, originalism is not a vehicle by which conservative justices seek to reach conservative results. As Justice Gorsuch explains:
[S]ome suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences. Whether that means allowing protesters to burn the American flag (the First Amendment); prohibiting the government from slapping a GPS tracking device on the underside of your car without a warrant (the Fourth Amendment); or insisting that juries—not judges—should decide the facts that increase the penalty you face in a criminal case (the Sixth Amendment).
The alternative – living constitutionalism – is fundamentally anti-democratic. As stated above, living constitutionalists believe that the Constitution is a “living document,” and that judges have the power to create constitutional meaning based upon evolving societal attitudes. The problem with living constitutionalism is that it enables judges to ignore or manipulate the Constitution’s text to achieve preferred policy outcomes. In so doing, living constitutionalism provides unelected judges with the power to decide issues that should be resolved through the democratic process (e.g., issues on which the Constitution is silent or ambiguous), and thus deprives citizens of the power to effectuate change democratically. As Justice Gorsuch stated:
I suspect the real complaint of living constitutionalists isn’t with old laws generally so much as it is with the particular terms of this old law. The Constitution is short—only about 7,500 words, including all its amendments. It doesn’t dictate much about the burning social and political questions they care about. Instead, it leaves the resolution of those matters to elections and votes and the amendment process. And it seems this is the real problem for the critics. For when it comes to the social and political questions of the day they care most about, many living constitutionalists would prefer to have philosopher-king judges swoop down from their marble palace to ordain answers rather than allow the people and their representatives to discuss, debate, and resolve them. You could even say the real complaint here is with our democracy.
Indeed, the anti-democratic and deleterious nature of living constitutionalism was on full display in Griswold v. Connecticut, where the Court invalidated an admittedly silly law banning contraception. The Court in Griswold acknowledged that the Constitution’s text, particularly the Fourteenth Amendment, did not provide a basis upon which to invalidate the law. However, the Court’s majority remained undeterred and decided to create an unenumerated right out of thin air. Specifically, the Court held that “[s]pecific guarantees in the Bill of Rights have penumbras … formed by emanations from those guarantees that give them life and substance.” In so holding, the Court concluded that a judicially-created, non-textual ‘right to privacy,’ which was implied from the judicially-created, invisible penumbras, supported invalidation of the statute. And in Roe v. Wade, the Court relied upon these very penumbras to hold that the Fourteenth Amendment’s Due Process Clause, which was originally designed only to ensure that life, liberty, and property could not be deprived without due process of law, supported a right to abortion before viability. To be sure, I support abortion rights. But I could never support the reasoning in Roe. It is constitutionally indefensible.
Make no mistake: living constitutionalism is not the knight in shining armor that some would have us believe. In fact, it has led to some of the worst decisions in the history of American constitutional law. As Justice Gorsuch explains:
Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.
Indeed, Justice Gorsuch highlights the real and substantial harms that living constitutionalism can cause:
Even when it comes to more prosaic cases, leaving things to the moral imagination of judges invites trouble. Just consider the “reasonable expectation of privacy” test the Court invented in the 1960s to redefine what qualifies as a search for Fourth Amendment purposes. Oh, it sounded nice enough. But under that judge-made doctrine, the Court has held—and I’m not making this up—that a police helicopter hovering 400 feet above your home doesn’t offend a “reasonable expectation of privacy.” The Court has even held that the government can snoop through materials you’ve entrusted to the care of third parties because, in its judgment, that, too, doesn’t invade a “reasonable expectation of privacy.” But who really believes that? The car you let the valet park; the medical records your doctor promised to keep confidential; the emails you sent to your closest friend. You don’t have a reasonable expectation of privacy against the government in any of those things? Really?
Put simply, “the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.” In short, living constitutionalism is not a legitimate theory of constitutional interpretation.
Ultimately, Amy Coney Barrett will be confirmed because she is a brilliant jurist, a person of the highest character and integrity, and a judge who recognizes that “the law of Amy” should never be substituted for the law of the people. Originalists also recognize that – and originalism is, as Justice Gorsuch stated, “the best approach to the Constitution.”
 Justice Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
 381 U.S. 479.
 Id. at 484 (emphasis added).
 410 U.S. 113 (1973).
 Gorsuch, supra note 1, available at: available at: https://time.com/5670400/justice-neil-gorsuch-why-originalism-is-the-best-approach-to-the-constitution/
Sunday, October 11, 2020
On the eve of Amy Coney Barrett’s confirmation hearings, members of the Republican and Democratic parties are preparing for what will likely be a difficult and highly partisan hearing. Republicans on the judiciary committee will likely contend that Judge Barrett’s qualifications, reputation, and character overwhelmingly support her confirmation. Democrats will likely contend that confirming Judge Barrett less than a month before the Presidential election is inappropriate, particularly given the Republicans’ refusal to hold hearings for Merrick Garland in the months preceding the 2016 election. Regardless of whether Judge Barrett is confirmed (the odds are solidly in her favor), few can doubt that the hearings will be contentious and reflect the partisanship and divisiveness that currently pervades the political arena. The consequences will not be insubstantial; rather, Judge Barrett’s hearing, like the hearing of then-Judge Brett Kavanaugh, will underscore how political the confirmation process – and arguably the Court itself – has become. And it will potentially undermine the public’s confidence in the Court and the rule of law.
To make matters worse, some members of the Democratic party have threatened to “pack the court” with additional (and arguably liberal) justices to counter the solidly conservative majority that Judge Barrett’s confirmation would likely create. But packing the Court will make the problem worse, not better. It would be predicated on the assumption that a President’s – and a justice’s – perceived ideology and policy predilections will lead to outcomes that one party deems politically desirable. And if the public perceived as such, the Court would become more politicized, the rule of law more trivialized, and the legitimacy of the Court’s decisions minimized.
So how can we preserve the rule of law, maintain the Court’s independence, and ensure confidence in the Court’s decision-making process? Not through a contentious and partisan confirmation hearing. Not by packing the Court.
Instead, require a supermajority. Specifically, require that to reverse or affirm a lower court decision (and, of course, change the law), six, not five votes, are required.
This solution would have several benefits that would preserve the Court’s legitimacy, protect the separation of powers, and promote democratic choice regarding issues upon which the Constitution is silent. First, 5-4 decisions have been and continue to be the source of substantial disagreement and division. The Court’s decisions in National Federation of Independent v. Sebelius, Obergefell v. Hodges, Shelby County v. Holder, and Bush v. Gore are perfect examples. A six-vote majority would reduce the frequency with which the Court issues controversial decisions.
Second, requiring a six-vote majority would almost certainly lead to incremental, rather than drastic, changes in the law and minimize the risk that the Court’s decisions will be perceived as political and illegitimate. To achieve a six-vote majority, the justices would be forced to compromise and reach a middle ground concerning decisions that affect, among other things, civil rights and liberties. As such, the influence of ideology or policy preferences in the decision-making process would be minimized.
Third, a six-vote majority requirement would likely affect the process by which the Court grants certiorari. The Court would be less likely to accept cases -- particularly those involving divisive social and political issues -- if the justices knew that there was little, if any, likelihood of obtaining a six-vote majority. The effect would be that many decisions concerning divisive policy issues would be resolved through the democratic process, not by nine unelected judges with life tenure.
Fourth, a six-vote majority might incentivize litigants to stop seeking social change through the courts and instead concentrate their efforts on effecting change through the legislature. Doing so would limit the Court’s power in a principled way. The Court would still decide cases that involved violations of specific constitutional or statutory guarantees, but a six-vote majority requirement would make it difficult, if not impossible, for the Court to create rights based on implausible interpretations of the Constitution and thus engender public backlash. This is a good thing; after all, the Court’s decision in Roe. v. Wade, which was indefensible as a matter of constitutional law, has engendered so much backlash that the right to abortion will continue to be litigated for the foreseeable future.
Fifth, a six-member majority requirement would de-politicize the Court and the process by which justices are confirmed, preserve the Court’s independence, and protect the Court’s legitimacy. Simply put, packing the Court isn’t the answer. Requirement a six-vote majority is – and should be considered seriously.
Sunday, October 4, 2020
On September 18, 2020, Justice Ruth Bader Ginsburg unexpectedly died. Undoubtedly, Justice Ginsburg was a brilliant jurist and one of the most influential legal thinkers in recent history. After a period of mourning in honor of Justice Ginsburg, President Donald Trump nominated Judge Amy Coney Barrett to serve as an Associate Justice on the United States Supreme Court. Predictably, some senators vowed to oppose Judge Barrett’s confirmation to the Court, citing both the timing of the nomination and the belief that Judge Barrett would reach decisions that would eviscerate abortion rights and invalidate the Affordable Care Act. In fact, three senators announced that they would not even meet with Judge Barrett before the confirmation hearings begin.
A review of the reasons offered in opposition to Judge Barrett’s confirmation, and an analysis of Judge Barrett’s background and experience, strongly suggests that Judge Barrett will – and should – be confirmed.
To begin with, Judge Barrett’s credentials are impeccable. A graduate of Notre Dame Law School – and an executive editor on the Notre Dame Law Review – Barrett clerked for Judge Laurence Silberman of the United States District Court for the District of Columbia and, thereafter, for former Justice Antonin Scalia at the United States Supreme Court. Thereafter, Judge Barrett joined Miller, Cassidy, Larroca & Lewin, a prestigious Washington, D.C. firm before embarking on a career in academia and, ultimately, being confirmed as a judge on the Seventh Circuit Court of Appeals.
Scholars of all political persuasions have offered effusive praise for Justice Barrett’s intellect and legal ability. As former colleague and Notre Dame law professor O. Carter Snead states:
She has an incandescent mind that has won the admiration of colleagues across the ideological spectrum. Harvard law professor Noah Feldman, a respected liberal legal commentator who, like Barrett, was a Supreme Court clerk during the October 1998 term, has observed that Barrett may well have been the smartest person in that year’s pool of top young legal talent. ‘Any Senate Democrat who tries to go toe to toe with Barrett over her legal abilities,’ he wrote in 2018, ‘going to lose. Badly.’ Barrett has confirmed her brilliance many times over as both a scholar and a teacher, for which she has been recognized three times by Notre Dame law students as professor of the year.
Notre Dame law professor Daniel Kelly echoed these sentiments, calling Judge Barrett “absolutely brilliant," and “one of the warmest open-minded people that anybody could meet.”
Furthermore, Judge Barrett is a jurist – and person – of great character and integrity. As Professor Snead explains, Judge Barrett’s “commitment to treating others with respect grows directly out of her religious convictions,” and “Barrett’s love of neighbor goes beyond merely treating others with dignity.” In fact, “[i]n all the time I have known her, I have never once seen Barrett place her needs above those of others.”
Additionally, neither ideology nor policy predilections appear to influence Judge Barrett’s jurisprudence. As Professor Snead explains, Judge Barrett “genuinely seeks to understand others’ arguments and does not regard them as mere obstacles to be overcome on the way to reaching a preferred conclusion.” To be sure, Judge Barrett is “not afraid to change her own mind in the search for the truth,” and “open-mindedness is exactly what we want of our judges,” particularly on the U.S. Supreme Court. In fact, one of Judge Barrett’s former colleagues – and a former clerk to Justice Ginsburg – stated that Judge Barrett “is ‘not at all ideological’ and believes that she will ‘try as hard as anyone can to bracket the views she has as she decides cases.’”
For these and other reasons, Judge Barrett is admired and respected by her peers and former students – regardless of political persuasion. John Garvey, President of Catholic University and one of Judge Barrett’s former professors, stated that “Amy Coney is the best student I ever had.” While a professor at Notre Dame Law School, Judge Barrett was voted Teacher of the Year three times. Most importantly, Judge Barrett is a good person who has impacted meaningfully the lives of so many. Three of Judge Barrett’s former students state as follows:
Amy Coney Barrett is a woman of both profound intellect and depth of heart. We are better women, friends, and lawyers for having known and learned from her. She has enriched the lives of all who have come to know her at Notre Dame Law School, and we can only hope that the entire country also will be given the benefit of her example and service.
Indeed, as a group of her former students stated, “[w]hile we hold a variety of views regarding how best to interpret statutes and the Constitution, we all agree on this: The nation could not ask for a more qualified candidate than the professor we have come to know and revere.”
Of course, some legal scholars will oppose Judge Barrett’s confirmation and her confirmation hearing before the Senate Judiciary will almost certainly be contentious. Those opposing Judge Barrett’s confirmation will likely argue that Judge Barrett will fortify a conservative majority on the Court, vote to overturn Roe v. Wade, and invalidate the Affordable Care Act. Such concerns are purely speculative; as history reveals, lawmakers cannot know with any degree of confidence how a nominee will rule in a particular case. For example, Justices David Souter, John Paul Stevens, and John Roberts have reached decisions in numerous cases that defy their perceived ideological dispositions. Furthermore, disagreement with (or, in some cases, disdain for) a nominee’s political beliefs is not the constitutional standard upon which nominees should be evaluated. Such an argument shows no regard whatsoever for or faith in the rule of law and unnecessarily politicizes both the confirmation process and the Court. Put simply, it’s not enough to reject a nominee because you disagree with their political views; in fact, it’s the Senate’s job to confirm a nominee regardless of those views. And the fact that Judge Barrett recognizes that “judges are not policymakers” is a positive, not negative, characteristic.
Others may argue, as Senator Diane Feinstein did during Judge Barrett’s confirmation hearing for a vacant seat on the Seventh Circuit, that Judge Barrett’s religious beliefs suggest that her ideology will influence her decisions. However, concerns about Judge Barrett’s religion or religious beliefs should be entirely irrelevant. Article VI, Clause Three of the Constitution states that “no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.” Even living constitutionalists could not disagree that Article’ VII’s meaning: you cannot disqualify a judge based on their religious beliefs or affiliations. Also, to look unfavorably upon a nominee because of their religious belief is plain wrong and reflects precisely the type of bias and prejudice that all reasonable people should condemn.
Some senators will also likely argue that Judge Barrett’s interpretive philosophy – originalism – will lead to unjust and inequitable outcomes, and cause Judge Barrett to disregard principles of stare decisis when precedents conflict with the Constitution's original meaning. This concern, again, lacks merit. Originalism does not require judges to overturn precedent that violates originalism’s interpretive philosophy. Furthermore, based on Judge Barrett’s respect for the rule of law and the stability it provides, it is highly likely that pragmatic considerations would influence Judge Barrett’s decision-making process. And by all indications, Judge Barrett would do so in an honest and principled, not partisan and political manner. Moreover, outcome-based objections ignore the complexity of the judicial decision-making process, disregard the seriousness with which the justices take their responsibility to be fair and impartial, and serve to politicize the confirmation process in a manner that threatens the Court’s institutional legitimacy.
Additionally, many Senators will almost certainly object to Judge Barrett’s nomination on the ground that no nominee should be confirmed during an election year – a position that the Republican party embraced to block the nomination of Judge Merrick Garland. This fact should not preclude her confirmation. Since 1900, six justices have been confirmed during election years. And sufficient time exists to confirm Judge Barrett; Justice Ginsburg, for example, was confirmed forty-two days after her nomination, and former Justice Sandra Day O’Connor was confirmed thirty-three days after her nomination. Of course, the Republicans’ refusal to hold hearings for Merrick Garland understandably angered Democrats and exposes Republicans to charges of hypocrisy in seeking to confirm Judge Barrett on the eve of a presidential election. But at some point, the partisanship and polarization that has characterized recent confirmation hearings must stop. In 1986, Justice Antonin Scalia was confirmed by a vote of 98-0. In 1993, Justice Ginsburg was confirmed by a vote of 96-3. In 2009, Justice Sotomayor was confirmed by a vote of 68-31. Judge Barrett should be confirmed too.
Put simply, Judge Barrett has impeccable credentials and is a thoughtful and conscientious jurist. Most importantly, as her former colleagues and students attest, Judge Barrett is a kind, humble, and caring person. As Professor Snead stated, “[a]t a time when there is so much to worry about in our troubled nation, having a Supreme Court justice who brings such honesty and integrity to her work should be the least of our fears.”
 See Ana De Liz, Which Democrats are Meeting With Amy Coney Barrett, and Which Are Refusing (Sep. 29, 2020), available at: https://www.newsweek.com/which-democrats-are-meeting-amy-coney-barrett-which-are-refusing-1534955
 See Zachary Evans, Several Senate Dems Refuse to Met With Barrett, Come Out Against Confirmation (September 29, 2020), available at: https://www.nationalreview.com/news/several-senate-dems-refuse-to-meet-with-barrett-come-out-against-confirmation/
 See Biography: Amy Coney Barrett, available at: https://www.biography.com/law-figure/amy-coney-barrett
 O. Carter Snead, I’ve Known Amy Coney Barrett for 15 years. Liberals Have Nothing to Fear (Sept. 26, 2020), available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
 WIBC, Notre Dame Colleagues Call Amy Coney Barrett ‘Brilliant, Honest, and Sincere’ (Sept. 25, 2020), available at: https://www.wibc.com/news/local-indiana/notre-dame-colleagues-call-amy-coney-barrett-brilliant-honest-and-sincere/
 Snead, supra note 4, available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
 Laura E. Wolk, Megan L. McKeown, Alyson M. Cox, Amy Coney Barrett Was Our Professor. She’ll Serve America As Well As She Served Her Students (Sept. 27, 2020), available at: https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/
 Christian Sheckler, Notre Dame Profs Push Back On Amy Coney Barrett Portrayals: Not Just an ‘Ideological Category,’ (Sept. 26, 2020), available at: https://www.usatoday.com/story/news/politics/2020/09/26/amy-coney-barrett-notre-dame-professors-push-back-ideological-portrayals/3546388001/
 Wolk, et al., supra note 10, available at: https://www.usatoday.com/story/opinion/voices/2020/09/27/amy-coney-barrett-supreme-court-notre-dame-students-column/3551971001/
 Supreme Court Nominee Amy Coney Barrett, ‘Judges Are Not Policymakers,” available at: https://www.whitehouse.gov/articles/supreme-court-nominee-amy-coney-barrett-judges-not-policymakers/
 See New York Times, The Dogma Lives Loudly Within You Sept. 26, 2020), available at: https://www.nytimes.com/2020/09/26/us/politics/the-dogma-lives-loudly-within-you-revisiting-barretts-confirmation-hearing.html
 U.S. Const., Art. VI, Cl. 3.
 See Zack Budryk, 22 GOP Attorneys General Urge Congress to Confirm Barrett As Supreme Court Justice (Oct. 1, 2020), available at: https://thehill.com/homenews/senate/519130-22-gop-attorneys-general-urge-congress-to-confirm-barrett-as-supreme-court
 See id.
 See Dana D. Kelly, Scotus Scores (July 6, 2018), available at: https://www.arkansasonline.com/news/2018/jul/06/scotus-scores-20180706/
 See Linda P. Campbell, Ginsburg Confirmed to Court on 96-3 Vote (Aug. 4, 1993), available at: https://www.chicagotribune.com/news/ct-xpm-1993-08-04-9308040122-story.html
 See John Stanton, Senate Confirms Sotomayor on Bipartisan 68-31 Vote (Aug. 6, 2009), available at: https://www.rollcall.com/2009/08/06/senate-confirms-sotomayor-on-bipartisan-68-31-vote/
 Snead, supra note 4, available at: https://www.washingtonpost.com/opinions/2020/09/26/ive-known-amy-coney-barrett-15-years-liberals-have-nothing-fear/
Sunday, September 20, 2020
Students for Fair Admissions, Inc. v. President and Fellows of Harvard College: An Analysis of the Future of Affirmative Action
In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the plaintiff, an organization that opposes affirmative action, filed suit against Harvard University in the United States District Court for the District of Massachusetts, alleging that Harvard’s affirmative action program unconstitutionally discriminated against Asian-American applicants. In September 2019, U.S. District Court Judge Allison Burroughs rejected the Plaintiff’s claim, holding that Harvard’s affirmative action program neither engaged in racial balancing (quotas) nor placed an undue emphasis on an applicant’s race in the admissions process. Accordingly, although Harvard considered race as part of its holistic admissions process, its process did not discriminate impermissibly based on race and thus passed constitutional muster. Subsequently, Students for Fair Admissions, Inc. appealed to the First Circuit Court of Appeals, arguing that Harvard’s admissions process imposed a de facto “racial penalty” on Asian-American applicants.
On September 16, 2020, the First Circuit heard oral arguments and the three-member panel appeared skeptical of the appellant’s arguments. Judge Sandra Lynch, for example, stated that “[y]our argument seems to come down to ‘Harvard must admit based only on academic rating and may not consider anything else,’” an argument that would contravene the United States Supreme Court’s jurisprudence holding that race may be considered as part of a holistic admissions process. The oral argument suggests that the First Circuit is likely to uphold the district court’s decision, but that will almost certainly not be the end of the story. The Supreme Court will likely grant certiorari to consider the permissible contours of affirmative action programs and the extent to which colleges and universities may consider race in the admissions process.
II. Analysis of Affirmative Action Jurisprudence
The United States Supreme Court’s jurisprudence regarding affirmative action provides a reasonably justifiable basis upon which to uphold the constitutionality of affirmative action programs.
To begin with, in Regents of the University of California v. Bakke, the Court held that the value in promoting educational diversity was sufficiently compelling to justify the use of race in the admissions process. Indeed, few could gainsay that diversity confers a substantial benefit upon universities, students, and the community. A diverse student body exposes students to various perspectives, enables students to interact with others from different backgrounds and experiences, and facilitates an awareness of the obstacles and adversity that many minorities have overcome. As Judge Burroughs emphasized, “students who are admitted to Harvard and choose to attend will live and learn surrounded by all sorts of people, with all sorts of experiences, beliefs and talents,” and, as such, “race-conscious admissions programs have an important place in society and help ensure that colleges and universities can offer a diverse atmosphere that fosters learning.”
Importantly, however, the Court in Bakke emphasized – and rightly so – that a university’s admissions process must be narrowly tailored to ensure a holistic and individualized consideration of every applicant, such that race cannot the sole or even predominant factor in the admissions process. And in Gratz v. Bollinger, the Court reaffirmed this principle, invalidating the University of Michigan’s undergraduate admissions policy because it automatically awarded twenty points toward admission for minority applicants (100 points were required for admission, with a perfect score on the SAT earning twelve points). This approach permitted precisely what Bakke prohibited – an excessive emphasis on race in the admissions process.
Conversely, in Grutter v. Bollinger, the Court upheld the University of Michigan Law School’s affirmative action program, holding that, although the law school’s admissions process favored underrepresented minority groups, the admissions process was sufficiently holistic to ensure an individualized consideration of every applicant. Additionally, the Court held that the law school’s objective of obtaining a “critical mass” of minority students was sufficiently tailored to further the interest in achieving a diverse student body. The “critical mass” rationale makes sense; one could hardly argue that the benefits of diversity are achieved if the percentage of diverse students are so minuscule
Finally, in Fisher v. University of Texas, the Court upheld the University of Texas’s affirmative action program, although its decision brought uncertainty, rather than clarity, to the Court’s affirmative action jurisprudence. In Fisher, the University of Texas automatically admitted all high school students throughout Texas who graduated in the top 10% of their high school class. Although this policy created substantial diversity among the University of Texas’s incoming classes, the university nonetheless included race as a factor in its holistic admissions process, which was reserved for students who did not graduate in the top 10% of their class. A white applicant who had been denied admission through the holistic process sued the University of Texas, arguing in part that, because the university already achieved substantial diversity through the top 10% program, the use of race in its holistic process was not sufficiently narrowly tailored.
The Court rejected this argument, holding that the university’s rationale for its diversity-related goals, which included the elimination of stereotypes, cross-racial understanding, and preparing students for a diverse workforce, were sufficiently measurable to enable judicial review, and that the university’s determination that the top 10% program was insufficient to ensure adequate diversity was entitled to substantial deference. On this basis, the Court upheld the university’s affirmative action program, although the Court’s decision, which failed to apply strict scrutiny (as had been the case in Bakke, Gratz, and Grutter), lacked a meaningful analysis of whether the university’s admissions process was appropriately tailored to ensure an individualized consideration of applicants outside of the top 10% program. Simply put, Fisher muddied the waters and brought confusion, rather than clarity, to the Court’s affirmative action jurisprudence, particularly regarding the legal standards governing the constitutional of affirmative action policies.
Notwithstanding, the Court’s decisions have established several broad principles that provide some guidance regarding the constitutionality of affirmative action policies. First, the interest in achieving a diverse student is undoubtedly compelling, particularly given that it exposes students to different perspectives, facilitates relationships with students of various backgrounds, and, as Judge Burroughs stated, this creates a “diverse atmosphere that fosters learning.” Second, the requirement that universities assess applicants holistically – and thus ensure an individualized consideration of every applicant – at least theoretically ensures that race will not be a predominant or, worse, deciding factor in admissions decisions. Third, it makes sense that courts would be reluctant to interfere in the internal policymaking decisions of universities absent evidence, as in Gratz, that admissions committees are preferencing minority applicants to such as degree (and thus discriminating against applicants of other races) that renders race, at least in some circumstances, dispositive in admissions decisions. Perhaps for that reason, as Justice Anthony Kennedy stated in Fisher v. University of Texas, universities are entitled to substantial deference in designing affirmative action program
Opponents of affirmative action, however, offer several arguments that are worthy of consideration. First, the consideration of race to any degree whatsoever is arguably contrary to the fundamental guarantee of equality and equal protection under the law. This argument, however, ignores the fact that for most of this country’s history, universities did consider affirmative action in the admissions process – to the detriment of minority applicants, particularly African Americans. Thus, the notion that we should embrace a color-blind admissions process – in the wake of, for example, segregation and Jim Crow – is untenable and unfair.
Second, opponents may assert the argument that the Court’s attempt to ensure a holistic and individualized admissions process is unrealistic because universities’ contention that race is only one factor in the admissions process is disingenuous. Put simply, in many instances, race is the sole determining factor in whether an applicant is admitted. To assess this argument, scholars would need to examine the grade-point averages and SAT (or ACT) scores of applicants admitted under universities’ affirmative action programs. If the scores of admitted minority applicants were substantially (not marginally) lower than those of non-minority applicants, one could reasonably argue that race was a predominant, if not determinative, factor. If that were indeed the case, then scholars must examine the percentage of minority applicants that were admitted with lower grade point averages and SAT (or ACT) scores compared to non-minority applicants with similar scores. If such analysis revealed a substantial disparity in the percentage of admitted minority and non-minority applicants, one could make a prima facie case that race was the deciding factor. That would lead to the conclusion that the Court in Bakker refused to countenance: the excessive emphasis on race in the admissions process.
Third, some scholars have argued that affirmative action policies harm minority applicants by admitting such applicants to colleges where they will struggle to succeed academically. Without detailed admissions data from universities and data regarding the academic performance and employment outcomes of minority students, this argument is difficult to assess.
What is certain, however, is that the Court’s decisions, particularly after Fisher, has failed to delineate a workable line between policies that will survive constitutional scrutiny and those that will not. As a result, the law concerning affirmative action remains unstable and unpredictable, resulting in a case-by-case approach that provides insufficient guidance to university administrators. That should change.
III. Conclusion – The Future of Affirmative Action
Affirmative action policies at universities are likely here to stay for the foreseeable future, and for good reason. Diversity enhances the educational experience for all students and provides underrepresented groups with access to educational opportunities that, for too long, have been wrongfully denied. But affirmative action alone is not sufficient. And there is some merit, based on relevant data, that affirmative action hurts the very groups that there are designed to benefit.
Rather, legislators, policymakers, and scholars should address the root cause of the problem, namely, educational inequality at the grade and high school levels, which results from poverty and affects children of all races. Indeed, after the Supreme Court’s decision in San Antonio School District v. Rodriguez, where the Court held that a school district’s financing system could be based on local property taxes, educational inequality was an inevitable result. Specifically, the quality of education (and educational resources) in grade and high schools differed substantially, if not alarmingly, depending on whether a community was affluent or poor. For example, the difference between an education at Beverly Hills High School and an education at Crenshaw High School in Los Angeles was like the difference between night and day.
It should come as no surprise, therefore, that students at Crenshaw High School, or other high schools in impoverished communities, lacked many educational resources, such as access to academic support services, extracurricular activities, and SAT or ACT tutoring services. It should also come as no surprise that the standardized test scores of applicants from impoverished communities, which are disproportionately minority, are substantially lower than those of students in affluent communities, which are disproportionately white. The upshot is that students from impoverished communities, regardless of race, are less prepared for the rigors of university academics than their more affluent peers.
Consequently, although affirmative action policies rightfully increase the diversity of student bodies and enhance access to education, they do not address the fact that students from disadvantaged or marginalized backgrounds often perform poorly in college, have higher dropout rates, and substandard employment outcomes.
Given this reality, affirmative action policies, however well-intentioned, and as Sanders’ mismatch theory suggests, are not sufficient. Rather, universities should adopt and implement mandatory ‘bridge’ programs and mentorship programs for all students, regardless of race, who reside in poor communities and whose standardized test scores and grade point averages suggest that they may struggle to succeed academically. The goal would be to provide students from non-traditional or marginalized backgrounds with the preparation and support necessary to maximize their likelihood of achieving success in college, employment, and life. Such programs could occur in the summer before a student’s freshman year, be four or eight weeks in length, and focus on skills such as writing, analytical thinking skills, and life skills to facilitate the adjustment to university life. Additionally, each student who is considered “at risk” should be provided with faculty and student mentors who provide support to each student throughout the entirety of their undergraduate career.
Put simply, the debate regarding affirmative action misses the point. To truly benefit the groups that affirmative action targets, universities should focus on race and poverty as the driving forces undergirding educational inequality. In so doing, universities should implement programs that help to bridge the preparation and achievement gap, and that maximize the likelihood that students from traditionally disadvantaged backgrounds will succeed academically and, ultimately, prosper economically.
*This article was co-authored with Daria Brown, an undergraduate student and aspiring law student at Georgia College and State University in Milledgeville, Georgia. Daria edited and drafted a portion of the article, and provided helpful insights regarding affirmative action policy.
 See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf
 See id.
 Harvard Gazette, Judge Upholds Harvard’s Admissions Policy (Oct. 1, 2019), available at: https://news.harvard.edu/gazette/story/2020/09/appeals-court-panel-hears-oral-arguments-in-harvard-admissions-case/
 See id.
 438 U.S. 265 (1978).
 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.
 See Bakke, 438 U.S. 265.
 539 U.S. 244 (2003).
 539 U.S. 306.
 See id.
 136 S. Ct. 2198 (2016).
 See id.
 See id.
 See id.
 See id.
 See id.
 See Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, available at: https://admissionscase.harvard.edu/files/adm-case/files/2019-10-30_dkt_672_findings_of_fact_and_conclusions_of_law.pdf.
 See, e.g., Richard Sander and Stuart Taylor, Jr., Mismatch: How Affirmative Action Hurts Students It’s Intended to Help, and Why Universities Won’t Admit It (Basic Books, 2012).
 411 U.S. 1 (1973).
 See Richard Sander and Stuart Taylor, Jr., The Painful Truth About Affirmative Action: Why Racial Preferences in College Admissions Hurt Minority Students – and Shroud the Education System in Dishonesty, (Oct. 2, 2012), available at: https://www.theatlantic.com/national/archive/2012/10/the-painful-truth-about-affirmative-action/263122/; Elizabeth Slattery, How Affirmative Action At Colleges Helps Minority Students (Dec. 2, 2015), available at: https://www.heritage.org/courts/commentary/how-affirmative-action-colleges-hurts-minority-students
 See Abigail Hess, Rich Students Get Better SAT Scores – Here’s Why (Oct. 3, 2019), available at: https://www.cnbc.com/2019/10/03/rich-students-get-better-sat-scores-heres-why.html
 See Slattery, supra note 21.
Monday, September 14, 2020
We are thrilled to feature this guest post by Justice Rhonda Wood of the Arkansas Supreme Court
I (Justice Rhonda Wood, Arkansas Supreme Court) am perhaps a little too excited about the new podcast starting on Constitution Day with three of my friends, Justice Eva Guzman (Supreme Court of Texas), Justice Beth Walker (West Virginia Supreme Court of Appeals), and Chief Justice Bridget McCormack (Michigan Supreme Court). These women are so smart and kind, and I am honored to work with them.
While on the bench all of us have been adamant supporters of civic and legal education. Several of us have worked together on these types of projects. However, the first time the four of us collectively came together was this Spring. Early in the pandemic, educators needed on-line materials and I asked the others if they would record a Zoom video-interview about the judiciary with my granddaughter Blakeley. We did it, and it spurred our desire to keep working on more civic education projects together. You have heard the saying that its better to give than to receive. That is how we feel. The four of us find that when we do educational outreach, we grow personally and professionally.
All of us believe judges have a role in furthering judicial education. We are all on twitter (#appellatetwitter) and find value in using social media to break barriers. So often, the public perceives judges as distant, dare I say stodgy, and the judge’s role in government is misunderstood. We plan to change this.
Through our new Lady Justice: Women of the Court Podcast, we believe we have found a way to reach the public directly and offer insight into state supreme courts, the judiciary as whole, and our role as justices. I think the podcast is one that lawyers will value, but the general public will understand. I also hope that, because we are four women, we can encourage young girls and women to consider the legal profession. Before now, every adjective that describes us: women, state court, and justices, was missing from the podcast arena.
In our first episode, released on Constitution Day, we discuss and compare our various state constitutions. To be honest, we were so fascinated with each other’s constitutions that we secretly wanted to chat much longer than would be reasonable for a podcast.
In our second episode, we will let our listeners get to know us better and discuss our backgrounds and experiences reaching our current positions. I think after this episode, you will realize why I think so highly of my fellow justices. We also have plans for an upcoming Appellate Court 101 episode. On each episode, one of the justices will lead the discussion. We would also love to hear ideas for episodes from our listeners. The podcast is available on iTunes, Spotify, Stitcher, Podbean, and in other podcasting apps. It can also be found at: www.arcourts.gov/ladyjustice
Saturday, September 12, 2020
Every year, I ask my students to read a variety of articles on the use of language, especially passive voice. For the last few years, I’ve included a 2015 New York Times opinion piece on how Texas history books use passive voice to hide the acts of pre-Civil War enslavers and make slavery sound less horrific than it was. See Ellen Bresler Rockmore, How Texas Teaches History, New York Times (Oct. 21, 2015); see also Dana Goldstein, American history textbooks can differ across the country, in ways that are shaded by partisan politics, New York Times (Jan. 12, 2020)(explaining Texas has started to improve its discussion of enslaved people in its history books).
This year, several students assumed the Texas history article was new, given its timeliness for our national conversations on bias and race, and I realized the author’s points on passive voice really are timeless. Legal Writing teachers like me suggest removing passive voice because it muddies meaning and takes more words to say less. Passive voice either removes the actor from the sentence entirely, like “the car was driven,” or obscures the action unnecessarily, such as “the car was driven by Al.” But as we try to be ever more conscious of bias and strive for neutral language, we should also remove passive for substantive reasons.
As Rockmore explains, we stress good writing for clarity. She notes: “Whenever possible, use human subjects, not abstract nouns; use active verbs, not passive” and do not “write, ‘Torture was used,’ because that sentence obscures who was torturing whom.” Rockmore, How Texas Teaches History. Yet in the Texas textbooks she analyzed, the editors “employ all the principles of good, strong, clear writing when talking about the ‘upside’ of slavery,” but “when writing about the brutality of slavery, the writers use all the tricks of obfuscation.” Id. For example, “Some slaves reported that their masters treated them kindly,” but “Whippings, brandings, and even worse torture were all part of American slavery.” Id. Rockmore asks, “where are the [enslavers] who were actually doing the whipping and branding and torturing? And where are the slaves who were whipped, branded and tortured? They are nowhere to be found in the sentence.” Id. As one more example, Rockmore notes how the sentence “Families were often broken apart when a family member was sold to another owner,” hides the enslavers. Id.
As you read these sentences, hopefully you rewrote them in your mind to include the enslavers (without using the word, “owners,” please). We should all do the same with our own appellate documents, even when our use of passive is less insidious. We’ll save words for more content, and we’ll communicate more clearly.
Unless you want to hide the actor for positive reasons, like in some criminal defense situations, listen to your grammar school (and Legal Writing) teachers, and avoid passive voice.
Sunday, September 6, 2020
In Jamison v. McLendon, District Judge Carlton Reeves drafted a powerfully written and compelling opinion that highlighted a law enforcement officer’s egregious – and unconstitutional – treatment of a suspect in violation of the Fourth Amendment.
Then, Judge Reeves let the officer off the hook.
Specifically, Judge Reeves held that the qualified immunity doctrine shielded the officer from liability. That conclusion was wrong.
By way of background, in Jamison, a law enforcement officer stopped the plaintiff (Jamison) for an alleged license plate tag violation. The officer believed that Jamison had illegal items in his car, although this belief was not based on any facts whatsoever. Nevertheless, and based on a mere hunch, the officer repeatedly pressured Jamison for almost two hours to consent to a search of his car, including pleading with Jamison five times before he relented and permitted the search. To make matters worse, before obtaining consent, the officer allegedly “placed his hand into the car … patted the inside of the passenger door,” and “moved his arm further into the car … while patting it with his hand.”
Jamison sued the officer and alleged, among other things, that the officer’s conduct violated the Fourth Amendment. Judge Reeves ruled, albeit reluctantly, that the qualified immunity doctrine shielded the officer from liability. Specifically, and despite highlighting the officer’s egregious conduct, which certainly violated the Fourth Amendment, Judge Reeves held that the officer’s conduct did not violate “clearly established law” and thus applied the qualified immunity doctrine. In so doing, Judge Reeves vociferously criticized the qualified immunity doctrine (and relevant precedent), arguing that it had become tantamount to absolute immunity. Ironically, Judge Reeves’s decision afforded the qualified immunity doctrine precisely the absolutism he eschewed – and for no good reason.
To be clear, Judge Reeves is an outstanding writer and his opinion is a textbook example of how to draft a persuasive legal narrative. Law students – and lawyers – would benefit from reading Judge Reeves’s opinion.
The praise afforded to Judge Reeves’s opinion, however, should stop there. Specifically, the qualified immunity doctrine did not require Judge Reeves to reach this most unjust result because the officer’s conduct unquestionably violated Jamison’s Fourth Amendment rights. As Professor Orin Kerr explained, “the Fourth Amendment law of searching a car is a clearly established bright-line rule,” and “[b]ecause it's a bright-line rule, the violation becomes obvious even if there is no factually identical or closely similar case.” Professor Kerr further stated as follows:
My sense … is that McClendon did violate clearly established law. Sticking his arm inside the car and patting down the inside of the door was obviously a search. It was governed by the rule, long recognized in the Fifth Circuit as clearly-established law, that the officer needed some justification for that search—probable cause, or a warrant, or a safety concern, or a special needs concern. But there's no plausible argument I am aware of that any of those justifications could apply. To use the Fifth Circuit's language in Mack, this was ‘a random search of a vehicle where none of the above justifications apply.’
For these reasons, if Judge Reeves felt so appalled at the officer’s behavior – as any reasonable person would be – he should have held that the qualified immunity doctrine did not apply.
More broadly, Judge Reeves’s criticism of the qualified immunity doctrine is questionable. The doctrine is not necessarily the problem; rather, the courts’ interpretation of that doctrine, which has, as a practical matter, created near-absolute immunity for law enforcement officers, is where the problem lies. But in Jamison, the relevant precedent did not compel the result Judge Reeves reached because, as Professor Kerr stated, the officer’s conduct “did violate clearly established law.” Indeed, the opinion is quite ironic. On one hand, Judge Reeves criticized the qualified immunity doctrine for, among other things, being tantamount to absolute immunity. On the other hand, Judge Reeves applied the doctrine in a manner that arguably afforded the very absolute immunity he eschewed, despite conduct by a law enforcement officer that unquestionably violated the suspect’s Fourth Amendment rights – and clearly established law. The idea that Judge Reeves’s hands were tied, and that he was forced to reach a conclusion that so profoundly contravened his beliefs, is unpersuasive. The decision was the legal equivalent of a self-fulfilling prophecy. After all, if the conduct Judge Reeves criticized so vociferously was not, in his view, sufficient to invoke the qualified immunity doctrine, what is?
Thus, although Judge Reeves’s opinion should be praised as an example of outstanding legal writing, it should be criticized for the reasoning upon which it was predicated. As a practical matter, Judge Reeves’s decision deprived an individual, who suffered an egregious violation of his Fourth Amendment rights, of a well-deserved legal remedy. As Professor Kerr stated, “[i]t seems to me that Judge Reeves likely was wrong, and that the officer was not entitled to qualified immunity.”
Ultimately, as the saying goes, “be the change you want to see in the world.” Judge Reeves stated in his opinion, “[l]et us waste no time in righting this wrong.” But then Judge Reeves did the very thing he cautioned against by refusing to right a constitutional wrong.
Judge Reeves – and courts across the country – should interpret the doctrine to mean what it says – immunity is qualified, not absolute.
 Jamison v. McLendon, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020) (the opinion is also available at: http://cdn.cnn.com/cnn/2020/images/08/04/jamison-v-mcclendon.pdf)
 See Orin Kerr, Did Judge Reeves Reach the Correct Result in Jamison v. McClendon? (Aug. 6, 2020), available at: https://reason.com/2020/08/06/did-judge-reeves-reach-the-correct-result-in-jamison-v-mcclendon/?amp
 See id.
 See id.
 Id. (internal citation omitted) (emphasis in original).
 Id. (emphasis in original).
 Jamison v. McLendon, 2020 WL 4497723, at *29.
Saturday, August 22, 2020
The recent district court slip opinion in Jamison v McClendon, __ F. Supp. 3d __, 2020 WL 4497723 (S.D. Miss. Aug. 4, 2020), granting a police officer qualified immunity in a section 1983 action generated a great deal of discussion and analysis in the legal writing community. United States District Judge Carlton Reeves of the Southern District of Mississippi used plain language and established rhetorical tools to craft a beautifully-written and compelling order. In substance, the order is a much-needed indictment of how far the qualified immunity doctrine has crept beyond its beginnings. In form, the slip opinion has a great deal to teach us about writing.
If you have not read the Jamison Qualified Immunity Order, I highly recommend you take the time to read the slip opinion. The introduction alone provides lovely lessons in style while thoughtfully advocating for us to increase justice for all.
Judge Reeves began with a traditional “hook” or interest-catching device, listing activities plaintiff was not doing:
Clarence Jamison wasn’t jaywalking.1
He wasn’t outside playing with a toy gun.2
He didn’t look like a “suspicious person.”3
. . . .
Jamison, 2020 WL 4497723 at *1-2. Each footnote reminds us of the tragic case connected to the quoted facts, such as footnote 1 regarding jaywalking, which explains, “[t]hat was Michael Brown,” and footnote 2, noting, “[t]hat was 12-year-old Tamir Rice.” Id. at *1 nn. 1-15. The court included fifteen examples, using the technique of repetition to paint a vivid picture of the vastness of police misconduct in recent years. Id. at *1-2.
Next, Judge Reeves succinctly and persuasively summarized the facts, mixing complex and simple sentence structure while using straightforward language:
Clarence Jamison was a Black man driving a Mercedes convertible.
As he made his way home to South Carolina from a vacation in Arizona, Jamison was pulled over and subjected to one hundred and ten minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching his car top-to-bottom for drugs.
Nothing was found. Jamison isn’t a drug courier. He’s a welder.
Unsatisfied, the officer then brought out a canine to sniff the car. The dog found nothing. So nearly two hours after it started, the officer left Jamison by the side of the road to put his car back together.
Id. at *2.
The court finished the introduction with a traditional roadmap. Judge Reeves explained the overall role of precedent and stare decisis, stating: “This Court is required to apply the law as stated by the Supreme Court. Under that law, the officer who transformed a short traffic stop into an almost two-hour, life-altering ordeal is entitled to qualified immunity. The officer’s motion seeking as much is therefore granted.” Id. at *3. But the court continued, “let us not be fooled by legal jargon,” because “[i]mmunity is not exoneration.” Id. Finally, the court previewed the rest of the opinion by explaining how the case demonstrated “the harm done to the nation by this manufactured [qualified immunity] doctrine.” Quoting the Fourth Circuit, the court ended the introduction: “This has to stop.” Id. (quoting Estate of Jones v. City of Martinsburg, 961 F.3d 661, 673 (4th Cir. 2020)).
In the body of the slip opinion, Judge Reeves used history, respected scholarship, and case law to explain why reviewing courts should consider limiting the application of qualified immunity. In other words, the court specifically illustrated precedent and aptly connected the law to this case and to the broader rules of qualified immunity. Then, ending the slip opinion with a specific call to action, Judge Reeves charged us: “Let us waste no time in righting this wrong.” Id. at *29. At least one court has already cited the slip opinion. See Peterson v. Martinez, 2020 WL 4673953 *5 n. 5 (C.D. Cal. Aug. 12, 2020) (“The reader is referred to the excellent opinion of the Hon. Carlton W. Reeves in Jamison v. McClendon . . . describing the unhappy development of qualified immunity jurisprudence.”).
Commentators’ opinions differ on whether the Jamison court should have found the underlying facts here outside the scope of qualified immunity. But the clear tone, repetition, common sense language, and strong use of authority make the order an especially nice example of persuasive writing.
Sunday, August 9, 2020
Chief Justice John Roberts’s influence on the United Supreme Court’s jurisprudence has been substantial. Importantly, however, Chief Justice Roberts’s judicial philosophy and approach to constitutional interpretation have raised more questions than answers.
By way of background, when former President George W. Bush nominated John Roberts to the Supreme Court, most commentators speculated that Roberts would be a reliably conservative justice and embrace an originalist approach to constitutional interpretation. Indeed, during his confirmation hearings, Roberts emphasized the limited role of the judiciary, analogized judges to “umpires,” and rejected any suggestion that judges decide cases based on policy predilections. As Roberts stated during his confirmation hearing:
A justice is not like a law professor, who might say, ‘This is my theory... and this is what I'm going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area.’ Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.
Based on these and other statements, legal scholars understandably expected that Chief Justice Roberts would decide cases based on the Constitution’s text and the original meaning underlying its provisions, and thus reach decisions that would favor conservative policy positions.
They were wrong.
Chief Justice Roberts’s jurisprudence has produced more confusion than clarity regarding his judicial philosophy and his approach to constitutional interpretation. To begin with, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts surprised many legal commentators when he relied upon Congress’s power to tax and spend to uphold the constitutionality of the Affordable Care Act. In so doing, Chief Justice Roberts held that the Court should defer to the coordinate branches when a statute can reasonably be interpreted to pass constitutional muster. Importantly, however, in Shelby County v. Holder, Roberts authored the majority opinion in which the Court invalidated Section 4(b) of the Voting Rights Act of 1965 even though the United States Senate had voted 98-0 to re-authorize the Act. And in McCutcheon v. FEC, Chief Justice Roberts authored the majority opinion in which the Court invalidated limits on contributions that individuals can make to candidates for federal office. The decisions beg the question of why deference to the coordinate branches is acceptable in some cases but not others.
In the Supreme Court’s recent terms, some of Chief Justice Roberts’s decisions have engendered confusion regarding his judicial philosophy and approach to constitutional interpretation. For example, in June Medical Services, LLC v. Russo, Chief Justice Roberts concurred in a 5-4 decision that invalidated a Louisiana law requiring abortion providers to obtain hospital admitting privileges. In so doing, Chief Justice Roberts relied on principles of stare decisis to hold that the Court’s prior decision in Whole Women’s Health v. Hellerstadt, which invalidated a nearly identical statute in Texas, controlled the outcome. Chief Justice Roberts’s decision was surprising in many respects. Specifically, Chief Justice Roberts dissented from the Court’s decision in Whole Women’s Health and had previously stated in a brief drafted on behalf of the Department of Justice that Roe v. Wade – the foundation of the Court’s abortion jurisprudence – was “wrongly decided” because it had no “support in the text, structure, or history of the Constitution.” Moreover, Chief Justice Roberts’s reliance on stare decisis in June Medical Services was troubling because in other cases, most recently in Janus v. American Federation of State, County, and Municipal Employees, Council, Roberts rejected stare decisis as a basis upon which to uphold precedent that he believed was wrongly decided. Perhaps more surprisingly in Bostock v. Clayton County, Chief Justice Roberts joined a six-member majority that construed Title VII of the Civil Rights Act, which when enacted prohibited discrimination based on race, color, religion, sex, and national origin, to encompass a prohibition against discrimination based on sexual orientation and gender identity. Although many would agree that the Court reached a favorable outcome, the legal basis for that outcome was questionable. And in joining the majority, Chief Justice Roberts appeared less like an umpire and more like a cleanup hitter.
Of course, there are ways in which to construe Roberts’s decisions as entirely consistent with his judicial philosophy of being an “umpire,” as these cases involved entirely different facts and legal issues. Moreover, most, if not all, judges would eschew labels such as ‘conservative’ or ‘liberal,’ and assert that their decisions are predicated upon a faithful interpretation of the relevant constitutional or statutory text and a respect for precedent. Additionally, most, if not all, judges would state that it is improper to focus exclusively or even substantially on the outcomes that judges reach because doing so politicizes the judiciary and ignores the process by which judges decide cases.
All of this may be true. Notwithstanding, Chief Justice Roberts’s jurisprudence – at least in some cases – arguably deviates from his judicial philosophy, particularly his statement that the Court’s role is tantamount to an “umpire,” and his approach to constitutional interpretation, which prioritizes the text and history over contemporary societal attitudes. As Chief Justice Roberts stated in Obergefell v. Hodges:
[A] much different view of the Court’s role is possible. That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.
Moreover, Chief Justice Roberts’s approach to deference and stare decisis has been inconsistent and unpredictable, thus casting doubt upon whether Chief Justice Roberts’s reliance on either doctrine was merely a vehicle by which to reach an outcome that had less to do with legal interpretation and more to do with political calculations.
So what is going on here?
The most likely explanation is that Chief Justice Roberts is striving to maintain the Court’s institutional legitimacy and credibility with the public. In so doing, Roberts may be particularly focused on avoiding decisions that are perceived as politically motivated or far removed from the mainstream of contemporary political attitudes. Although this approach is certainly understandable, it can have unintended consequences that cause the very problem that Chief Justice Roberts seeks to avoid. For example, if institutional legitimacy and the desire to be perceived as apolitical influences the Court’s decisions, those decisions will, by their very nature, be political because they will be guided by inherently political rather than legal considerations (e.g., the text of a statute or constitutional provision, and precedent). The unintended consequence is that the Court will become inextricably intertwined with, rather than removed from, politics, and further divorced from, rather than reliant upon, legal doctrine as the basis for judicial decision-making. Perhaps most importantly, the determination of precisely what decisions will maintain the Court’s legitimacy is invariably subjective, which risks rendering decisions that, in the name of legitimacy are, as a matter of constitutional law, illegitimate.
Ultimately, this is not to suggest that Chief Justice Roberts is deserving of criticism or has acted with anything but the utmost integrity when deciding cases. Indeed, before joining the Court, Chief Justice Roberts was one of the most influential, respected, and brilliant advocates in the United States, and by all accounts, is an extraordinary colleague and person.
It is to suggest, however, that Chief Justice Roberts’s view of judges as “umpires” was probably correct and should remain as the judiciary’s guiding principle. After all, “[n]obody ever went to a ballgame to see the umpire.”
 Chief Justice Roberts Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
 567 U.S. 519 (2012).
 See id.
 570 U.S. 529 (2013).
 572 U.S. 185 (2014).
 136 S. Ct. 2292 (2016).
 Dylan Scott, John Roberts is the Supreme Court’s new swing vote. Is he going to overturn Roe v. Wade? (July 9, 2018), available at: https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts
 138 S. Ct. 2448 (2017).
 140 S. Ct. 1731 (2020).
 576 U.S. 644 (2015) (Roberts, C.J., dissenting).
 Chief Justice Roberts's Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.
Saturday, June 27, 2020
Moving from Pandemic Emergency Zoom Oral Arguments to True Oral Argument Online: Preparation and Professionalism
In March, we had only hours to transition from in-person teaching and law practice to remote options. As many internet memes show, that led to some memorable court appearances sans pants, from closets and bathrooms. Recently, we’ve been able to step back and assess our remote experiences to see what we can use for better practice and teaching, even as we return to in-person work. I’ve attended several excellent sessions on online teaching, and I send kudos to William & Mary Law for its fantastic two-day Conference for Excellence in Teaching Legal Research & Writing Online. (If you could not attend, you can view asynchronous postings here: https://law.wm.edu/academics/intellectuallife/conferencesandlectures/excellence_online_teaching/index.php.) Like many of you, my inbox is full of invites for even more webinars and conferences I am not able to attend.
Luckily, Jill Wheaton of Dykema Gossett recently wrote a summary of the May 4, 2020 ABA Appellate Judges Council CLE webinar on “Appellate Advocacy in the Age of COVID-19.” The ABA’s program featured judges, a state appellate court chief clerk, and appellate practitioners speaking on how appeals courts will use remote appearances moving forward. As Wheaton explained, the panel presented “thoughts about, and recommendations regarding, telephone or video appellate arguments” and suggested counsel “do everything they can to make a remote argument as much like an in-person argument as possible.” Jill M. Wheaton, Appellate Advocacy in the Age of COVID-19, Appellate Issues--2020 Special Edition 1 (ABA May 27, 2020). Overall, the recommendations for practitioners stressed professionalism in how we approach video appearances. In other words, be prepared and yes, wear pants.
Part of our preparation for oral argument today should include a test run of our technology. Whenever possible, appellate practitioners should do moot courts before oral arguments. Now, we should make our moot courts a test of both online systems and legal arguments. Since many courts already used some type of internal video conferencing before COVID-19—and a few trial and appellate courts allowed video argument on occasion before 2020--the clerks and judges are already familiar with some remote platforms. Id. They expect us to be familiar with the platforms as well. In fact, many courts have videos of past virtual oral arguments online, and counsel can watch the videos as part of their oral argument preparation.
We should also be as professional as possible in every detail of our online appearances. Hopefully, we know to avoid the meme-worthy mistakes of March and April, by dressing in full suits and using a professional-looking digital background or physical space free of clutter and noise for a video appearance. The ABA panel stressed smaller points as well. For example, many courts still expect counsel to rise when the bailiff calls the case, and the panel judges noted they prefer advocates to stand when speaking. Id. at 2. Therefore, consider either using an adjustable desk, so you can stand when speaking but sit when opposing counsel argues, or use a stool so you can stay at eye level. The practitioners on the ABA panel suggested using a stack of books to raise your computer to standing level if needed, and to be sure your camera is on the top of your monitor to help you look directly at the judges during the argument. Id. Finally, counsel should remember they will be on camera for the entire hearing, even when opposing counsel is speaking. Id. Thus, find a way to communicate unobtrusively with co-counsel and your client, if needed.
We all want life to “return to normal,” but some form of remote oral arguments will no doubt remain after COVID-19 leaves. For now, “courts have been forced to become creative to continue to advance their dockets, requiring the bench and bar to become creative as well.” Id. at 3. Hopefully, these tips from the ABA panel can help us all be more creative, prepared and professional for this new normal.
June 27, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, Web/Tech | Permalink | Comments (0)
Sunday, June 21, 2020
This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California – that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity. In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex. In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.
The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.
So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”
Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.
I. Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts
The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.
Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.
But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision. And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage. Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.
Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.
II. Ideology matters – for conservative and liberal justices
For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.
However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.
Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.
III. Bias matters – for both liberal and conservative justices
Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women. In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.” Additionally, African-American defendants often receive harsher sentences than white defendants. As one scholar explains:
[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.
Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.” In so doing, the potential for reaching an improper result increase substantially.
IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”
Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.” As researchers explain:
[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.
Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.
V. Intuition matters
Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.” As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.” In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.
Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.
 See 590 U.S. ___ , 2020 WL 3146686.
 See id.
 See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.
 Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.
 567 U.S. 519 (2012).
 570 U.S. 529 (2013).
 576 U.S. 644 (2015).
 See id.
 Id. at 28 (internal citation omitted).
 Id. at 29.
 Id. at 32.
 Id. at 16.
 Id. at 24.
 Id. at 27.
 Id. at 14.
 Id. at 21.
Friday, June 12, 2020
Addressing Bias in Our Briefs and in the Legal Writing Classroom: If You Want Peace, Work for Justice
Like so many of us, I have spent the last few months worrying. I have been very worried about my law students’ physical and mental well-being. As a parent, I’m losing sleep over concerns for my high-school and college-aged children. But for the last two weeks especially, I have been incredibly anxious about the lack of justice in our country.
As a teen, I loved the statement, “if you want peace, work for justice.” I did not know then the phrase has roots in Christianity, Islam, and Judaism, but I knew it made sense. See, e.g., Ronald C. Smith, If You Want Peace, Work for Justice, 16 Crim. Just. 1, 2 (ABA Fall, 2001) (using the phrase to call for justice after 9/11 and discussing the role of the criminal justice bar in ensuring freedoms and liberties to bring peace); Samuel J. Levine, The Broad Life of the Jewish Lawyer: Integrating Spirituality, Scholarship and Profession, 27 Tex. Tech L. Rev. 1199, 1206-09 (1996). To me, one small way we can all start to make changes for more justice is by being more intentional in discussing bias in our writing, practice, and teaching.
As appellate lawyers, we often have a good overview of problems in the trial court, and sometimes we can see racism and bias as well. While we cannot present something beyond the record in a brief, we can do better at discussing what the record supports, and in having painful conversations with our trial counsel and clients. Our courts have been increasingly willing to discuss bias, and one recently stressed the need to take “teachable moments” to end bias. See Briganti v. Chow, 42 Cal. App. 4th 504, 510-13 (2019); Debra Cassens Weiss, “Appeals court sees lawyer's reference to 'attractive' judge in brief as a 'teachable moment' on sexism,” http://www.abajournal.com/news/article/appeals-court-sees-lawyers-reference-to-attractive-judge-in-brief-as-a-teachable-moment-on-sexism (Nov. 27, 2019). We too should advocate for professionalism, and against bias, in our practice. Of course, this is easier said than done, and our obligation is to our client, but if we start more conversations about what happened at trial and seize more opportunities to start a dialogue on professionalism, we will be working for justice.
Moreover, as legal writing teachers, we have great opportunities to include discussions of racism in our work. In doing so, we need not stray from our “assigned” role as writing teachers, since we also have an obligation to teach ethical practice as part of legal writing and analysis. In fact, we already stress important topics of professionalism in myriad ways. For example, many of us use cases on disbarment when we teach case briefing, and discuss the results of missed deadlines or failure to follow court rules as part of our teaching for memos and briefs. Additionally, I used problems on curing attorney errors for my trial brief problems for years. Now, we can include cases leading to discussions of bias as well. Using problems based in some legal areas, like Fourth Amendment pretextual stops and Title VII discrimination, will easily lead to discussions of racism and how writers and lawyers can address injustice. Using problems based in other substantive areas, like false imprisonment or real property, can create wonderful openings for discussing implicit bias and raising awareness, all while teaching crucial legal analysis and writing skills. I am not suggesting professors should or should not share their own views in these discussions, I am just noting a discussion of bias in the law and legal profession is a logical and important part of the ethical issues we already teach.
As Ronald Smith said of working for justice to bring peace: “think of another saying, ‘It is better to light one candle than to curse the darkness.’ [When] we seek justice each of us lights candles, [and] light[s] the way for others to see how they . . . can light candles and work for justice, too.” Smith, If You Want Peace, Work for Justice, 16 Crim. Just. at 3.
I wish you all good health and less worry, with hopes for a more just future.
Monday, June 8, 2020
Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian. Today I am sharing an interview that I did recently with David Lat. David is the founding editor of the popular blog Above the Law. He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19. He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background. Thanks David for joining me for the interview!
Edited: Sorry about the video issues, I think that it is fixed.
June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)
Sunday, June 7, 2020
The death of George Floyd was tragic and appalling. The video that showed Officer Derek Chauvin’s knee on Floyd’s neck for almost nine minutes was disturbing. Sadly, many unarmed African-Americans have been fatally shot by law enforcement, and although most officers have been acquitted of criminal conduct based on these events, they have been tragic and involved the questionable, if not unnecessary, use of force.
This is not to say that the majority of law enforcement officers are bad people. Most strive to – and do – protect their communities. But the events this past week have rightfully renewed a call to address problems in the law enforcement community and issues related to inequality. Below are a few thoughts regarding how to address the broader issue of inequality and achieve a society where equal opportunity exists for all citizens.
I. Focus on Institutional Corruption, not merely Institutional, or Systemic, Racism
There can be no doubt that racism and discrimination exist throughout the United States. Indeed, the legacy of, among other things, slavery, segregation, and Jim Crow have caused incalculable social and economic harm to African-Americans that continue to this day. As such, achieving equality and eradicating discrimination in all of its forms is a moral and categorical imperative.
To do so, however, it is not sufficient to rely upon an overly general assertion that the United States is currently an institutionally or systemically racist society. Although institutional racism certainly existed for much of this country’s history, it does not exist to nearly the same degree in contemporary society. For example, federal and state laws outlaw discrimination. Public universities have prioritized diversifying their student bodies and faculty. Private employers have made laudable efforts to diversify their workforces. Affirmative action programs have increased access to education for traditionally disadvantaged groups. This is merely a representative sample of the efforts reflecting a commitment to equality of opportunity and evincing a condemnation of practices that, by design or in effect, discriminate against particular groups.
Of course, although institutional racism is no longer ubiquitous, there can be no doubt that some institutions remain racist or, at the very least, retain policies that disparately impact traditionally marginalized groups. Accordingly, the best path to achieving equality would be to identify, at the county, state, and federal level, the specific institutions that remain institutionally or systemically racist – and to develop workable policy prescriptions to remedy the infirmities in these institutions. Put differently, it does little, if any, good to recite the proposition to institutional or systemic racism exists because these terms are overly broad and thus make it difficult to develop workable and sustainable remedies for specific problems.
Additionally, scholars and policymakers place insufficient emphasis on institutional corruption. This concept, which was developed by Harvard Law School Professor Lawrence Lessig, states as follows:
Institutional corruption is manifest when there is a systemic and strategic influence which is legal, or even currently ethical, that undermines the institution’s effectiveness by diverting it from its purpose or weakening its ability to achieve its purpose, including, to the extent relevant to its purpose, weakening either the public’s trust in that institution or the institution’s inherent trustworthiness.
Simply put, institutional corruption does not involve violations of the law. Rather, it refers to the degradation of an institution’s underlying values, and how the institution’s actions, although not illegal, undermine the public trust.
The United States Department of Justice’s investigation into the tragic death of Michael Brown – and the Ferguson Police Department – is instructive. The Department cleared Officer Darren Wilson of wrongdoing but, in so doing, found that the Ferguson Police Department was institutionally corrupt. That is, although the Ferguson Police Department did not engage in illegal activity per se, its policies and practices disproportionately and unfairly impacted African-American residents, thus highlighting the need for principled reforms.
II. Focus on Crime Prevention by Addressing the Underlying Causes of Criminality
There can be no doubt that reforms to policing practices (and legal doctrines, such as qualified immunity) are necessary in some jurisdictions to ensure that police brutality ends and that the lives of African-American suspects (and all suspects) are not needlessly lost. This may include eliminating specific physical restraints, making changes to police training methods, and revisiting the qualified immunity doctrine.
But such reforms are not enough.
Legislators and policymakers must address a critical issue that has nothing to do with law enforcement – the underlying causes of criminality in the African-American community (and all communities, for that matter) – and strive to reduce criminal behavior.
Regarding this issue, the landmark report of former Senator Daniel Patrick Moynihan is also instructive, albeit controversial. In that report, Senator Moynihan found that, by the mid-1960s, nearly half of African-American families were in the middle class. In subsequent years, however, that progress stalled. Senator Moynihan posited that the decline of the nuclear family and the increase in single-parent families contributed to this problem as part of a “tangle of pathology,” which included “delinquency, joblessness, school failure, crime, and fatherlessness.” These factors, Moynihan concluded, created a “self-perpetuating cycle of deprivation, hardship, and inequality.” Decades after its publication, the Urban Institute revisited Senator Moynihan’s report and concluded that African-Americans “still suffer from the intersecting disadvantages that Moynihan called a ‘tangle of pathologies,’ with each negative factor reinforcing the others.” Specifically, the Urban Institute noted that children “born into single-mother families [approximately 72% of African-American children] are far more likely to be poor and persistently poor than children born into two-parent families,” and that “[h]igh-poverty neighborhoods suffer from high rates of crime and violence, poor schools, and weak connections to the labor market.” Consequently, these factors may be responsible, in part, for criminality and inequality of opportunity.
But the Moynihan Report’s findings do not tell the whole, or even most important part, of the story. Perhaps the most deleterious effect of the systemic discrimination that continued until the mid-twentieth Century was the disparity in the quality of education at the grade and high school levels. To make matters worse, in San Antonio School District v. Rodriguez, the United States Supreme Court held that the funding of public schools based on property tax revenue did not violate the Fourteenth Amendment. The practical effect was far-reaching and long-lasting: children from wealthy neighborhoods received a better education than children from poor neighborhoods. That, in a nutshell, made equality of opportunity illusory for poor children of all races. As the Urban Institute noted, “[y]oung people from high-poverty neighborhoods are less successful in school than their counterparts from more affluent communities: they earn lower grades, are more likely to drop out, and are less likely to go on to college.”
Make no mistake: racism is and continues to be part of the problem. Indeed, the Urban Institute noted that “race remains a factor in determining economic opportunities and outcomes,” and that “aggressive enforcement of antidiscrimination statutes as well as affirmative action policies are required to ensure equal opportunity.” Police brutality, of course, is also a problem, and the recent protests are a testament to citizens’ rightful anger, at such brutality although those citizens who engaged in violence and other criminal activity should not be considered protesters in any sense whatsoever.
But the path to equality requires policymakers and scholars to do far more than focus on law enforcement. For the promise of equality to become a reality for all citizens, researchers and scholars must develop policies that address community and family issues, and that remedy the disparities in education at the grade and high school levels.
III. Reform Federal and State Sentencing Guidelines – and Reentry Programs
At the federal and state level, sentencing guidelines often authorize the imposition of unnecessarily long and unprincipled sentences. Additionally, during incarceration, the criminal justice system often provides inadequate support and treatment for mentally ill inmates. And upon release, these individuals, many of whom are members of traditionally disadvantaged groups, have deteriorated substantially and lack the social and economic support to successfully reintegrate into society. Not surprisingly, they frequently engage in criminal conduct and return to prison, where the cycle continues.
Thus, reforming sentencing law to enhance rehabilitation-based programs for inmates – and prioritize support for inmates upon release – is critical to reducing crime.
IV. The Millennial Sequence
The path to the middle class – and away from criminality – is attainable for citizens of all backgrounds. Specifically, the American Enterprise Institute has found that, among millennials, “getting at least a high school degree, working full-time, and marrying before having any children,” facilitates upward mobility into the middle class:
[The] divergent paths toward adulthood are associated with markedly different economic fortunes among Millennials. Young adults who put marriage first are more likely to find themselves in the middle or upper third of the income distribution, compared to their peers who have not formed a family and especially compared to their peers who have children before marrying … This pattern holds true for racial and ethnic minorities, as well as young adults from lower-income families. For instance, 76% of African American and 81% of Hispanic young adults who married first are in the middle or upper third of the income distribution, as are 87% of whites.
In fact, this sequence is almost certain to reduce, if not eliminate, the likelihood that an individual will live in poverty:
97% of Millennials who follow what has been called the “success sequence”—that is, who get at least a high school degree, work, and then marry before having any children, in that order—are not poor by the time they reach their prime young adult years (ages 28-34). The “success sequence,” so named by Brookings Institution scholars Ron Haskins and Isabel Sawhill, has been described as the path into adulthood that is most likely to lead towards economic success and away from poverty.
The problem, however, is that “young adults aged 28 to 34 from lower-income families are about half as likely to have completed the success sequence, or be on track with the sequence, compared to their peers from upper-income families.”
This short article cannot capture in sufficient detail the many issues relevant to inequality. Ultimately, however, and perhaps most importantly, the solution to this problem requires citizens of all races and backgrounds to come together in a spirit of reconciliation, with a commitment to eradicating racism and discrimination, and with an openness to diverse perspectives. It does no good to maintain an almost-exclusive focus on, for example, white privilege (the extent of which cannot be quantified and differs based on intersectional factors), and implicit bias (which evidence suggests does not correlate with biased behavior). These arguments rightfully identify problems impacting inequality, but without more, they have no practical impact on improving the day-to-day lives of African-Americans. If anything, now is the time to come together and recognize that what we have in common far outweighs that which we do not, and to collectively devote our efforts to achieving equality – and equal protection of the law – for all citizens. After all, what happened to George Floyd, and many others, should never happen again. The United States Constitution guarantees equality for all citizens and whenever the effects of inequality manifest – as they did in Minneapolis – the Founders’ vision for a more perfect union vanishes.
 Institutional racism is generally defined as state-sponsored policies that discriminate against or disproportionately impact traditionally marginalized groups.
 Edmond J. Safra, Institutional Corruption, available at: https://ethics.harvard.edu/lab
 See United States Department of Justice, Civil Rights Division, Investigation of the Ferguson Police Department (March 4, 2015), available at: https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf
 Kay S. Hymowitz, The Black Family: 40 Years of Lies, (2005), available at: https://www.city-journal.org/html/black-family-40-years-lies-12872.html
 Gregory Arcs, The Moynihan Report Revisited (June 2013), available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF
 411 U.S. 1 (1973).
 Arcs, supra note 6, available at: available at: https://www.urban.org/sites/default/files/publication/23696/412839-The-Moynihan-Report-Revisited.PDF\
 W. Bradford Wilcox, The Millennial Success Sequence: Marriage, Kids, and the ‘Success Sequence’ Among Young Adults (June 2017), available at: https://www.aei.org/research-products/working-paper/millennials-and-the-success-sequence-how-do-education-work-and-marriage-affect-poverty-and-financial-success-among-millennials/
Tuesday, May 26, 2020
In May, while the world was still trying to adjust to life during quarantine, the Texas Office of Court Administration was hit by a ransomware attack. While the details are still a bit sketchy because of an ongoing investigation, we do know that the State refused to pay the demanded ransom, shut down the infected systems, and has struggled since then to continue its work via alternate channels.
For appellate attorneys, this has been particularly frustrating. The systems that were shut down include some of the case notification mechanisms, so attorneys are finding out via social media whether they won or lost an appeal. In some cases, the court's access to the record appears to have been lost, so advocates are being asked to help provide case information and records back to the court. Throughout it all, Texas courts have somehow managed to not only continue to work but to lead in holding remote oral arguments and hearings and in continuing to push their dockets despite the quarantine and a crippled IT infrastructure.
In a past life, I worked as a systems administrator and technician, and even wore a "white hat" while hacking to test security. So I am familiar with the challenges in preventing ransomware attacks. This post, however, isn't written for the IT crowd. I hope to give some advice to the attorneys and professors who generally ignore such posts, but are often the source of the problem.
First, you need to know that ransomware attacks generally follow a set pattern. The attackers implant software that helps them gain control of a system, usually be encrypting data so it is no longer usable. They then notify the victim of the attack and demand a ransom, usually in bitcoin or another cryptocurrency. If the ransom is paid, they promise to decrypt the data. Sometimes they do, sometimes they do not.
Where do you, the user, fit into this scheme? Usually, you are the point of infection. By taking a few precautions you might prevent the next attack, or help with the restoration that follows.
1. Don't be the Source of the Infection.
Most ransomware is spread by Phishing, or emails that entice you to click a link that then loads the software onto your computer. Your IT department is serious when it asks you not to click on links from outside sources. The same goes for email attachments, and for links sent via text.
Some attacks start with "social engineering," or gaining access to sensitive information from users that can be used to guess passwords. Avoid the social-media posts that ask you cute personal questions and share with your friends. Even if your password isn't related to your date of birth, favorite pet, child's name, or other seemingly harmless bit of data, one of your friends' passwords might well be. Or, the attacker might use that information to personalize an email phishing attack that is just too hard to resist.
Finally, avoid using public wifi, or if you do, use the VPN that your employer has most likely set up for you. This is probably less common now that we are trying to stay in place, but is still a common source of attack.
2. Help Preserve your Data.
If there is an attack, the target is the sensitive data that you hold. Most likely, that data will be locked away and inaccessible for awhile, if not forever. If your firm or court is going to recover, it needs your help.
Make sure that you keep up with backups. And, if you are working from a court's electronic record available online, do yourself (and the court) a favor and download that information rather than just relying on the online version. After suffering data corruption and other issues, I even email myself drafts of briefs as I progress in writing so that nothing is lost. The idea is to keep multiple copies on multiple storage devices, so that if one fails, there is still a way to recover. Some sensitive data will have to be more restricted, but in general, on appeal at least, we are working with public records that can be stored in multiple places.
3. Remember that Confidentiality is a Ethical Responsibility.
Ransomware attacks are up across the board. There are even some healthcare providers that have been targeted, although some of them have been offered "discounts" on the ransom because they are essential service providers. Don't think that you are not a target. More importantly, don't think that your client's confidential information is not a target.
Indeed, law firms are increasingly the target of security intrusions. To protect clients, Comment 8 to Rule 1.1 of the ABA Model Rules imposes a duty of competence that includes keeping abreast of the "benefits and risks associated with relevant technology." Recently, Formal Opinion 483 clarified that the lawyer's duties include both taking all reasonable efforts to protect clients from data breaches and informing them when one occurs.
In the end, protecting client data is the professional responsibility of the attorney. You can't just blindly rely on your IT department or contractor and avoid that responsibility. Instead, you must be aware of the vulnerable world we live in, and take steps to be safe with not just your personal health, but the health of your data as well.
(Image attribution: "Virus" by kai Stachowiak, CC0 public domain license)