Monday, April 12, 2021
I "won" a major appeal this week. It wasn't in the courtroom, and it wasn't exactly a victory. Rather, after about two months of back and forth, my employer directed my health insurance company to cover two months of my daughter's specialized amino-acid formula. This "victory" came after I wrote, to paraphrase the representative for the insurance company, a "really good appeal." I laughed when he said this and replied, "Well, my job is to teach law students to write persuasive appeals." But, in reality, as I sat down late one night to write the appeal, I did think about principles I taught my students. I wanted to share that here, but first a little backstory.
Both of my kids have needed to be on amino-acid based infant formula for a milk/soy protein intolerance. The formula is very expensive--a small can costs over $40 and lasts us less than 3 days (assuming no waste). The formula is also hard to find--it isn't available in most stores, although some Walgreens carry it. We have had it delivered through a medical supply company. My husband and I are both state employees, and we have the choice of two companies for health insurance. For several years we were on one company, and they covered the formula for both kids with no problem. This year we had to switch companies due to a major restructuring of the state plans. Our kids see several specialists, and the new insurance company covered them better.
Of course, I didn't even think about the formula in making the switch. Well, the new company decided to not cover it. Among its many arguments were: (1) the formula is a plan exclusion and (2) it is standard infant formula and over the counter. We appealed the denial, and after claiming for about a week that they didn't receive the appeal and then initially refusing to expediate the appeal (I mean, it isn't like its her FOOD or anything), they finally denied the appeal. I got the appeal letter right around 5pm on Wednesday night, and I was livid when I read it. The letter said that I could appeal the appeal, and provided a fax number for me to send it to. I wanted to sit down immediately and type a multi-page diatribe against the company, but cooler heads prevailed (or rather, I needed to get the kids to bed before I had time to type).
When I finally had time to type, I kept three key principles that I teach my students in mind: (1) Lead from strength, (2) Be clear and organized, (3) Use strong persuasion not abusive language.
(1) Lead from strength--My best argument on appeal was that the insurance company in its denial letter misstated my daughter's diagnosis. The letter didn't list her milk protein intolerance, which was odd, since that is the diagnosis that requires her to have her formula. So, my first point in the appeal pointed to that misdiagnosis. I provided copies of her medical records stating her correct diagnosis, and I carefully listed her diagnoses in the letter, pointing out the incorrect language that the insurance company used. Similarly, in writing an appeal, start with your strongest argument, unless there is a threshold issue that you need to address like standing or jurisdiction. You want to put your best argument first, since that is your best opportunity to draw your reader (the judge!) in. Likewise, be sure to set out your affirmative argument first. Don't come out as too reactionary to either the adverse decision below or your opponent's brief. Of course you need to rebut some arguments, but set out your affirmative case first--showing how the law is in your place.
(2) Be clear and organized--I divided my appeal into three main arguments--the misdiagnosis, the mischaracterization of the formula as standard infant formula, and the failure to explain the plan exclusions. I set out these three points in my introductory paragraph and then used headings to set apart each argument. It was easy for the reader to follow. Likewise, clarity and organization are critical in an appellate brief. If there is one thing that judges almost universally agree upon it is that briefs are too long. Clarity and organization can keep the length of your brief on track, for example by avoiding unnecessary repetition. It can also help a judge follow your argument. I always tell my students that your point headings should serve as an outline for your brief.
(3) Use strong persuasion not abusive language--I will be honest. I struggled with this point. I used stronger language than I would recommend in a brief, but I also toned down some of my writing as I went along as I thought about this principle. My most strident language was calling their characterization of the formula as "over-the-counter" as "simply false." By the time I had written the appeal, I had also written several emails to the appeals unit, and some of those were a little harsh. I was frustrated at the amount of time I was spending on the matter and the specious arguments being raised by the insurance company. I also was annoyed because I felt that the company was just trying to delay until my daughter turned one and she could try a milk substitute. Finally, I was frustrated for all the parents of kids who have had to deal with this issue and who might not be lawyers or feel comfortable with the appeals process. These parents might also truly not be able to afford $500-$1000 a month on formula (on top of all the specialist doctor visits). My frustration definitely leaked into my written letters and emails. BUT, in general, you should not take cheap (or expensive) shots at the judge below or opposing counsel in your appellate briefs. Be persuasive, but don't call names. Sure, you can show how the judge made a legal error or how opposing counsel's case is inapposite, but you don't need to call them liars, lazy, manipulative, or state that they "ignored the law." Furthermore, rather than saying the law "clearly" supports you, focus on showing how the law clearly supports you. Strong persuasion is always better than strong words.
I hope that these little tips help you in whatever type of appeal that you are writing.
Sunday, April 11, 2021
Recently, Georgia Governor Brian Kemp signed legislation that substantially revised Georgia’s election laws. As discussed in more detail below, the law, among other things, requires voters to present a valid state identification when voting in person (similar requirements apply to mail-in ballots), limits the number and location of drop boxes for mail-in ballots, reduces the time for requesting such ballots, and expands early voting in most of Georgia’s counties.
Almost immediately, critics claimed that Georgia’s law was racist. Such critics claimed, for example, that the law will suppress voter turnout and limit access to voting through provisions that will disproportionately impact people of color and various marginalized communities. The result, critics argued, would benefit the Republican party and diminish the voices of Georgia’s increasingly diverse electorate.
Additionally, Major League Baseball joined the chorus of critics in condemning the law as racist and decided to move its annual All-Star Game from Atlanta, even though doing so will likely have a deleterious impact on Atlanta’s minority-owned businesses. Likewise, Delta Airlines, United Airlines, and Coca-Cola criticized the law, with Delta Airlines CEO Ed Bastian stating that the law is “unacceptable and does not match Delta’s values.”
And President Joe Biden stated that Georgia’s voter identification law was “Jim Crow on steroids.”
But is the law racist? Is the law really “Jim Crow on steroids?” A brief analysis of the relevant provisions of Georgia’s law suggests that the answer is a resounding no.
First, the law requires individuals to present a valid state-issued ID when voting in person. For individuals voting by mail, the law requires individuals to submit a valid driver’s license or state identification number, or provide the last four digits of their social security number. Importantly, the Georgia Department of Driver’s Services and county registrar’s offices issue state ID cards at no cost to voters. Given that a valid ID is required, for example, to pick up tickets at an Atlanta Braves game or to board a Delta Airlines flight, it seems rather sensible to require one before voting.
Second, the law expands early voting in most Georgia counties. Specifically, counties must designate at least two Saturdays in which to conduct early voting; counties also have the authority to offer early voting on Sundays. Indeed, because this portion of the bill increases early voting – as Georgia’s previous law only required one Saturday of early voting – it appears that this provision is the antithesis of racist.
Third, Georgia’s law requires one drop box per county (and only one drop box per 100,000 voters). In so doing, the law reduces the number of drop boxes, and limits the locations where, and times in which, they can be accessed. The rationale for this reduction is likely because the coronavirus pandemic, particularly due to current vaccination efforts, is nearing an end and thus does not justify the number of drop boxes made available for the 2020 election.
Fourth, the law bans giving food or water to voters who are waiting in line at the polls, ostensibly to prevent groups from campaigning to voters before they enter the ballot box. However, the law permits poll workers to create self-service areas where voters can hydrate. And, of course, voters are not prohibited from making the sensible decision to purchase water and food before arriving at their designated precinct. Although this provision seems rather unnecessary, there is simply no basis to conclude that it is racist.
Fifth, voters are required to request absentee ballots and must do so within approximately two-and-a-half months (seventy-eight days) of an election. Again, the racist aspect of this provision is not immediately apparent.
Sixth, and in what is perhaps the most problematic (although not racist) provision in the law, the secretary of state will no longer chair the state election board. Instead, the General Assembly will elect the chair and board members, which gives Republicans in the state an unnecessary degree of power in controlling how elections are conducted and how the results are processed.
The law also includes provisions striving to report election results more quickly by allowing counties to begin processing absentee ballots fifteen days before election day, and establishes a hotline that voters can call to report voter intimidation or illegal activity. 
Consequently, given that a state-issued ID in Georgia is free, that early voting is expanded, and that little, if any, evidence suggests that any of these provisions will suppress voter turnout, can Georgia’s new law properly be characterized as “Jim Crow on steroids?” Of course not. The assertion is ridiculous on its face – just about as ridiculous as harming minority-owned businesses by removing the All-Star Game from Atlanta.
Importantly, empirical evidence does suggest that voter ID laws are not effective in preventing voter fraud and that instances of voter fraud are relatively rare. However, voter ID laws can increase the perception that elections are being conducted honestly and with integrity, which will enhance public confidence in our electoral and democratic process. Perhaps that is why most states have enacted such laws. To be sure, voter ID laws in states that are the darkest shade of blue, such as New Jersey, New York, and Delaware – President Biden’s home state – are similar to, if not more restrictive than, Georgia’s new law. In short, Georgia’s law isn’t racist. It’s not “Jim Crow on steroids.”
Ultimately, racism is despicable. Racists should be universally condemned. And efforts to increase access to the polls for marginalized groups, and conduct free and fair elections, is a legal and moral imperative. But neither of these objectives is accomplished when leaders make irresponsible and factually inaccurate statements regarding voter ID laws, and causally make allegations of racism. Doing so only serves to further divide an already divided society and promote misinformation campaigns that are anathema to a healthy democracy.
 See, e.g., Adam Brewster, What Georgia’s New Voting Law Really Does – 9 Facts (April 7, 2021), available at: What Georgia's new voting law really does — 9 facts - CBS News
 See, e.g., Ben Nadler and Jeff Amy, Georgia’s New GOP Election Law Draws Criticism, Lawsuits (March 29, 2021), available at: Georgia's new GOP election law draws criticism, lawsuits (apnews.com)
 See, e.g., Natasha Dailey, Coca Cola, Delta, United, and 7 Other Companies Blast Georgia’s New Voting Law In a Wave of Corporate Backlash (April 5, 2021), available at: Coca-Cola, Delta, Others Speak Out Against Georgia Voting Law (businessinsider.com)
 Gabe Kaminsky, Biden’s ‘Jim Crow’ Label for Georgia’s Election Laws is Insane – Here’s Why (April 9, 2021), available at: Biden's 'Jim Crow' Label For Georgia Election Laws Is Insane. Here's Why (thefederalist.com)
 See Brewster, supra note 1, available at: What Georgia's new voting law really does — 9 facts - CBS News
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See id.
 See e.g., German Lopes, A New Study Finds Voter ID Laws Don’t’ Reduce Voter Fraud – Or Voter Turnout (Feb. 21, 2019), available at: Study: voter ID laws don’t reduce voter fraud — or voter turnout - Vox
 See, e.g., Katie Daviscourt, MLB’s Decision to Pull All Star Game from Atlanta ‘Crushing’ for Small Businesses (April 7, 2021), available at: MLB's decision to pull All Star Game from Atlanta 'crushing' for small businesses | The Post Millennial
Sunday, March 28, 2021
Social media and online blogging have created extraordinary opportunities for individuals and groups to publicly disseminate information, participate in public policy debates, and contribute to the marketplace of ideas. Indeed, social media and online blogging certainly have benefits, such as providing individuals with platforms to connect with others, give commentary on political issues, and offer additional and alternative sources of information.
But social media and online blogging also have drawbacks.
For example, social media has been used – and continues to be used – as a vehicle by which to disseminate false or misleading information regarding, among other things, current political issues. As a source of misinformation in some instances, particularly during federal and state elections, social media has the potential to unduly influence voters and thereby indirectly affect election outcomes. Additionally, social media and online blogging have been used to disseminate false commentary about individuals and groups. To be sure, some social media users and online bloggers – using anonymity as a shield – have attacked individuals with deeply offensive insults and scurrilous attacks that contribute nothing to public discourse, and that cause severe and irreparable reputational harm.
Given the proliferation of such offensive and often harmful statements, the question arises whether defamation law provides a remedy to individuals who are the target of such commentary. The answer, in most instances, is no. And that is a problem.
Current defamation law suffers from a significant flaw. Statements that are deemed pure opinions, regardless of the harm they cause, cannot be considered defamatory. This limitation makes it impossible to obtain a remedy for statements that cause substantial, and sometimes irreversible, reputational harm.
By way of background, defamation consists of libel and slander, and is divided into two categories: defamation per se and defamation per quod. Defamation per se is reserved for a relatively narrow category of statements that are considered so inherently defamatory that they are presumed to cause reputational harm. Typically, defamation per se is limited to statements negatively affecting a person’s reputation relating to his or her business or profession, falsely claiming that a person has been convicted of a crime of moral turpitude, has a sexually transmitted disease, or is unchaste. Defamation per quod applies to all other allegedly defamatory statements and requires a claimant to demonstrate that a statement was: (1) published to a third party; (2) provably false; (3) likely to subject the claimant to embarrassment, scorn, and ridicule in the community; (4) negligently made; and (5) caused damages to the claimant’s reputation.
Importantly, however, if a statement is considered a pure opinion rather than a provably false fact, it cannot be defamatory. In Milkovich v. Lorain Journal Co., the United States Supreme Court explained that “under the First Amendment there is no such thing as a false idea … [h]owever pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas.” As stated above, this aspect of defamation law makes it impossible to succeed in a defamation action and leaves individuals who suffer severe and often irreparable harm without a legal remedy. That is wrong. Pure opinions should not be categorically exempted from defamation law.
The fact that a statement reflects a speaker’s opinion does not mean that it is not or cannot be defamatory. Opinions can – and do – cause severe reputational harm. In Milkovich and other cases, the Court has acknowledged this fact, holding that opinions that imply underlying facts can be defamatory. Apart from the inherent difficulty of distinguishing pure opinions from opinions that imply underlying false facts, the Court missed the point. Pure opinions can be defamatory, and claimants should be entitled to have a jury decide if they are defamatory.
After all, readers arguably do not distinguish between pure opinions and provably false facts or condition their judgment of a person on whether a statement constitutes an opinion or a provably false fact. As one commentator explains:
Although people are in a position to judge for themselves whether an opinion is justified so long as the alleged facts utilized as a basis for the opinion are proven to be true and are available to them, most, if not all, people are often influenced by others, especially by the press and the media, in formulating their opinions. The reader of a book or an article may have difficulty in assimilating all the facts set forth as the basis for an opinion; as a result, the reader is apt to be more influenced by the opinion than the facts set forth to justify it.
Put simply, the "view that damage to reputation may be minimized by the recipients' ability to judge the soundness of the opinion is naïve … defamatory deductive opinions may be just as damaging to reputation as other defamatory facts." For example:
[C]onsider a hypothetical assertion in an editorial about John Doe, a candidate for city attorney: ‘In my opinion, John Doe is an incompetent lawyer because he was accepted into law school under an affirmative action program and would not have been admitted under the school's standards for whites.’ Even if the premises of this statement are true, a false assertion that Doe is an incompetent lawyer can be very damaging, causing readers to make judgments based on false premises. In part this pure deductive opinion may be persuasive because readers are ill informed; some may assume that the writer is correct that only those who entered law school under the standards applied to ‘whites’ can be competent lawyers.
Of course, some would argue that the First Amendment protects offensive and distasteful speech. Thus, holding individuals liable for such speech would compromise core First Amendment protections by, among other things, chilling speech and inhibiting a true marketplace of ideas. This argument fails to recognize that defamatory opinion "does not advance free speech values … because it is not the type of public discourse that contributes to intelligent decision making or promotes a multicultural society that is both dynamic and durable." Furthermore, the requirement that a claimant demonstrate tangible reputational harm (not merely emotional distress) inherently limits the extent to which opinions will be considered defamatory. To be sure, the problem is not solved by holding that opinions that implying underlying facts can be defamatory. How can courts distinguish between such opinions and pure opinions? There are simply no standards to make this distinction reliably and consistently, and doing so ignores the fact that pure opinions can – and do – cause reputation harm.
For example, imagine a situation where someone states that another person is a “self-serving fraud,” “Nazi war criminal,” or “Charles Manson wannabe.” The courts held that each of these statements constituted pure opinion and, as such, could not be deemed defamatory. Admittedly, depending on the context, such statements may not be defamatory. But to state that they can never be defamatory, regardless of the harm they cause, and simply because they are pure opinion, makes no sense. If a claimant can demonstrate that a pure opinion caused tangible reputational harm (e.g., economic harm), that claimant should have a legal remedy.
In an era where social media and online blogging are replete with slurs, insults, and degrading comments directed at individuals and groups, the law should not categorically shield such statements from legal liability because they are “pure opinions.” Instead, courts should recognize that pure opinions can – and often do – cause substantial and irreversible harm.
 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990); see also Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
 Milkovich, 497 U.S. at 18 (internal citation omitted).
 Kathryn Dix Sowle, A Matter of Opinion: Milkovich Four Years Later, 3 Wm. & Mary Bill of Rights J. 467, 495 (1994).
 Id. at 575-576.
 Id. at 579.
 Nicosia v. De Rooy, 72 F. Supp. 2d 1093 (N.D. Cal. 1999); Koch v. Goldway, 817 F.2d 507 (9th Cir. 1987); Crowe v. Cnty. of San Diego, 593 F.3d 841 (9th Cir. 2010).
Sunday, March 14, 2021
Many academic institutions, professional organizations, and private corporations have embraced implicit bias training as a method by which to combat discrimination. The concept of implicit bias states that all individuals harbor unconscious biases that lead to, among other things, discrimination and the unequal treatment of individuals based on race. Although certainly well-intentioned (eradicating discrimination is a moral imperative), empirical studies suggest that: (1) the Implicit Association Test (IAT), which is used to detect individuals’ implicit biases, is flawed; (2) there is a weak correlation between implicit biases and biased behavior; and (3) few, if any, attempts have been made to quantify the degree to which implicit bias, particularly in light of explicit biases, impacts behavior.
1. The Implicit Association Test is Flawed
Some scholars and commentators have relied on the Implicit Association Test (IAT) to diagnose an individual’s implicit biases. The problem is that the IAT is flawed in many respects.
To begin with, the IAT sets arbitrary cutoff scores to determine whether an individual’s responses reveal implicit biases, yet fails to provide any assessments of the differences, if any, between the many individuals who score above or below those cutoffs. Additionally, IAT scores are arguably context-dependent, as the IAT produces different results for individuals when they complete the test multiple times. Furthermore, the IAT fails to meaningfully distinguish between implicit and explicit bias. As one scholar explains, “the IAT provides little insight into who will discriminate against whom, and provides no more insight than explicit measures of bias.” One commentator states as follows:
The IAT is impacted by explicit attitudes, not just implicit attitudes … It is impacted by people’s ability to process information quickly on a general level. It is impacted by desires to want to create a good impression. It is impacted by the mood people are in. If the measure is an amalgamation of many things (one of which is purportedly implicit bias), how can we know which of those things is responsible for a (weak) correlation with behavior?
To be sure, one scholar acknowledged that “what we don’t know is whether the IAT and measures like the IAT can predict behavior over and above corresponding questionnaires of what we could call explicit measures or explicit attitudes.”
2. Neither the Implicit Association Test Nor The Presence of Implicit Bias Reliably Predicts Biased Behavior
Empirical studies suggest that implicit biases do not predict biased behavior. Indeed, one researcher acknowledged that the IAT “cannot predict behavior at the level of an individual.” In fact, the evidence shows precisely the opposite:
Researchers from the University of Wisconsin at Madison, Harvard, and the University of Virginia examined 499 studies over 20 years involving 80,859 participants that used the IAT and other, similar measures. They discovered two things: One is that the correlation between implicit bias and discriminatory behavior appears weaker than previously thought. They also conclude that there is very little evidence that changes in implicit bias have anything to do with changes in a person’s behavior. These findings, they write, "produce a challenge for this area of research.
Additionally, researchers recently “examined 63 studies that explicitly considered a link between changes in bias and changes in actions … [but] they found no evidence of a causal relationship." Put simply, very few, if any, sociological or psychological studies have established with any degree of reliability that implicit bias directly or proximately caused biased, or discriminatory, behavior. As one social psychologist explains:
Almost everything about implicit bias is controversial in scientific circles. It is not clear, for instance, what most implicit bias methods actually measure; their ability to predict discrimination is modest at best; their reliability is low; early claims about their power and immutability have proven unjustified.
This is not to say, of course, that implicit bias does not exist, or that it does not have a material impact on biased behavior. It is to say, however, that the IAT – and evidence supporting a connection between implicit bias and biased behavior – is, at best, premature and, at worst, untenable. As two prominent scholars explain:
[M]uch murkiness surrounds (a) the proper causal explanation for alleged IAT effects, (b) the psychological meaning of IAT scores, (c) the statistical generality and potency of alleged relations between IAT scores and actual behavior, and (d) boundary conditions on alleged IAT effects.
What’s more, even where researchers have claimed to reduce implicit biases, they found no concomitant reduction in biased behavior. That fact alone should cause scholars who have championed implicit bias to think that, just maybe, they have jumped the proverbial gun.
3. Few, If Any, Attempts Have Been Made to Quantify Implicit Bias’s Impact on Biased Behavior
Assuming arguendo that implicit bias impacts biased behavior, scholars have made little, if any, attempt to quantify implicit bias’s impact on biased behavior. For example, is implicit bias responsible for 5%, 10%, 20%, or 50% (or more) of biased behaviors? This is particularly problematic given that the presence of other factors, such as explicit biases and prejudices, directly impact biased decision-making. This flaw should not be surprising. After all, if implicit bias is the product of unconscious – and thus involuntary – actions, it would appear difficult for researchers to credibly claim that they possess the ability to reliably measure and quantify a phenomenon that resides outside of their conscious awareness. But without attempting to do so, reliance on implicit bias as a predictor of biased conduct raises more questions than answers.
The research cited above is merely a sample of the articles that have cast doubt on the nexus between implicit bias and biased behavior. To be sure, the point of this article is not to say that implicit bias bears no relationship to biased behavior. It is to say, however, that the evidence for such a relationship is inconclusive, contested, and, quite frankly unpersuasive. As such, the adoption of programs in universities and corporations that strive to educate students and employees on the allegedly negative effects of implicit bias is, at best, premature and, at worst, misguided. What’s more, relevant research has produced “little evidence that implicit bias can be changed long term, and even less evidence that such changes lead to changes in behavior.”
Ultimately, eradicating discrimination, addressing inequality, and ensuring equal opportunity are moral imperatives. The question, however, is how best to do that.
 See id.
 Bartlett, T. (2017). Can We Really Measure Implicit Bias? Maybe Not. Retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.
 Lopez, G. (2017). For Years This Popular Test Measured Anyone’s Racial Bias. But It Might Not Work After All. Retrieved from: https://www.vox.com/identities/2017/3/7/14637626/implicit-association-test- racism.
 Lee Jussim, Mandatory Implicit Bias Training is a Bad Idea (2017), available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
 Bartlett, supra note 3, retrieved from: https://www.chronicle.com/article/Can-We-Really-Measure-Implicit/238807.
 Brandie Jefferson, Change the Bias, Change the Behavior? Maybe Bot (Aug. 2019), available at: https://source.wustl.edu/2019/08/change-the-bias-change-the-behavior-maybe-not/
 Jussim, supra note 6, available at: https://www.psychologytoday.com/us/blog/rabble-rouser/201712/mandatory-implicit-bias-training-is-bad-idea.
 Gregory Mitchell & Philip Tetlock, Antidiscrimination Law and the Perils of Mindreading. 67 Ohio St. L. J. 1023- 1121 (2006).
Monday, February 1, 2021
Two weeks ago I blogged that we were close to releasing Volume 21, Issue 1, of The Journal of Appellate Practice and Process. I am pleased to announce that the issue is now online. There are so many wonderful articles in the issue, which I plan to blog on over the next few weeks.
Since I have already written much on online oral arguments, I thought that I would start with the two pieces that discuss that topic. The first, "Remote Oral Arguments in the Age of Coronavirus: A Blip on the Screen or a Permanent Fixture," written by veteran appellate advocate Margaret McGaughey, is a follow-up from her earlier article entitled, "May it Please the Court--Or Not: Appellate Judges' Preferences and Pet Peeves About Oral Argument." In both articles, Ms. McGaughey conducts numerous interviews of state and federal appellate judges and provides their perspectives on the topics. Her interviewees include Justice Stephen Breyer, Judge David Barron (my property professor), Judge Sandra Lunch, Judge Bruce Selya, Judge William Kayatta, Judge Lipez, former Chief Justice Daniel Wathen, Chief Justice Andrew Mean, Justice Catherine Connors, and the late Chief Justice Ralph Gants. She also interviewed several attorneys who have given remote arguments.
The article is full of great tips, including some tips at the end of setting up your space for remote argument. But, there are two things that really stuck with me in reading the article. The first is how well we all adapted. The judges and the advocates have done what has needed to be done to adapt to the situation. They have learned how to use the technology and they have changed how questions are asked and arguments delivered. Some have even changed what they wear to "court." We are all truly in this together, and we have persevered. This leads to the second thing that struck me--while many judges are eager to return to the physical courtroom, things will never be the same. This new style of remote arguments will remain in some form. How frequently it will be used in the future remains to be seen.
The second article on remote arguments is by one of our bloggers--Judge Pierre Bergeron. Judge Bergeron's article, "COVID-19, Zoom, and Appellate Oral Argument: Is the Future Virtual," also contains judges' thoughts about remote argument. What really stands out to me in Judge Bergeron's article, however, is his passionate defense of oral argument in general. He presents a fascinating discussion of the decline of oral argument and how remote arguments can serve to both revitalize oral argument and meet key access to justice concerns. Virtual arguments, he says, could allow courts to create a "pro bono appointment program that would . . . help provide argument at-bats for aspiring appellate lawyers" by matching them with "underprivileged clients who need quality legal representation." He cites to such a program in Arizona. This idea is genius. I could see law school clients jumping on board too.
Hopefully this new year and the vaccine rollout will see some normalcy return to our appellate courts. But, I hope too that we capitalize on all the technological advancements with remote oral argument to increase access to justice and lower costs for clients.
February 1, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (0)
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)