Appellate Advocacy Blog

Legislatures, Initiatives, and the Courts

Commentators have long likened the legislative process to sausage-making, something that those with weak stomachs should not observe too closely. Nonetheless, courts have respected legislative decision-making by providing outsized deference to that body as the policymaker most likely to enact laws in accordance with popular sovereignty. When voters object to the decisions rendered, they can throw the rascals out, and different policy choices can then prevail.

Yet, legislators often seem to disapprove of voters who bypass them to enact laws or constitutional provisions by initiative – especially when it supports ends that the legislators oppose. At the moment, we see this playing out in Ohio. In light of the Dobbs decision,[1] which overturned Roe v. Wade[2] and declared that abortion was an issue that could be decided state-by-state, pro-choice voters have sought to enshrine a right to abortion in state constitutions through the initiative process in several states. To date, all have passed.

In Ohio, the legislature attempted to put up an obstacle in advance of the vote. It sought approval of its own initiative on a quicker schedule that would have increased the requirement for approval from a simple majority to 60 percent, as well as from 44 to 88 the number of counties represented in signatures to qualify for the ballot. That initiative failed. Then the secretary of state proposed language, approved by the state ballot board, designed to make the proposed amendment less desirable.

Nonetheless, the amendment was approved by voters earlier this month. Immediately after the election, Ohio House Speaker Jason Stephens claimed that “multiple paths” exist to prohibit abortion despite the constitutional amendment.”

Most troubling for those who believe in the rule of law and judicial independence is the proposal some Ohio lawmakers have advanced to strip the courts of the authority to review cases that would implement the newly passed constitutional amendment. They released a statement justifying this extreme measure by asserting, without demonstrating any basis for the claim, that “foreign election interference” tainted the vote. The election denialism that infected the last presidential election apparently provides fodder for undermining the courts.

Those courts are currently reviewing a constitutional challenge to a 2019-enacted six-week abortion ban that contains no exceptions for rape or incest. The constitutional amendment would appear to make invalidation of the ban a simple and straightforward inevitability. A jurisdiction-stripping bill, if valid, would prevent that possibility.

At stake is not only the status of abortion, but the authority of our courts – and the place of popular sovereignty in our representative democracy. Certainly, there are arguments against amending laws and constitutions through the initiative process. It can be overused, trivialize the law with popular but ill-considered or poorly drafted mandates, and has spawned an industry that raises and profits from the process. The same, however, can be said of the legislative process itself. While in place, the initiative, a product of progressives a century ago, still provides the rules that we are obliged to follow.

Ohio and the abortion issue is not the only time that legislatures have rebelled against voter initiatives. In 2018, Floridians approved an initiative to restore voting rights to people convicted of felonies and who had completed their sentences, excluding murderers and sex offenders. Months later, the legislature enacted a law that defined completion of a sentence as having repaid in full all fines and fees, even though that often could not be determined. The Florida Supreme Court, in response to a request of the governor while a constitutional challenge was working its way through the courts, read the new law as consistent with the amendment passed by initiative. Whatever one thinks of that conclusion, it conformed to a process that allowed the courts to determine the law.

My favorite example of a voter initiative and a legislature at loggerheads occurred in Massachusetts. In 1988, voters approved the Massachusetts Clean Elections Law, which created a system of public campaign funding for candidates who limited the private financing they accepted. The Massachusetts initiative provision required the legislature to fund it, but no appropriation was ever made. Plainly, legislators were not anxious to fund their challengers. Supporters of the initiative, including a candidate for governor, brought a lawsuit in 2001 to obtain the missing funding or void any election without public funding.

The Massachusetts Supreme Judicial Court held that the initiative, unless repealed, required the legislature to a money judgment in the amount that would provide the public campaign funding promised by the law, while the court would retain jurisdiction with a single justice assigned to assure that other eligible candidates also receive the money.[3] When the legislature dragged its feet in providing the funding, that justice threatened to execute on the Commonwealth’s property to assure that the funding would be forthcoming. The threat proved sufficient, although the legislature exercised its right to repeal the Clean Elections Law a year later.

Ohio’s legislature cannot repeal a constitutional amendment on its own. It could argue that the amendment should not be interpreted to invalidate its 2019 statute. What it should not do, if the rule of law is to prevail, is block the courts from construing the state constitution and measuring legislative acts against its restrictions.

 

[1] Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022).

[2] Roe v. Wade, 410 U.S. 113 (1973).

[3] Bates v. Dir. of Off. of Campaign & Pol. Fin., 763 N.E.2d 6 (2002).

Welcoming Judge Ana de Alba to the Ninth Circuit

On Monday, the United States Senate confirmed President Biden’s nominee, Judge Ana de Alba, to the Ninth Circuit Court of Appeals seat left open when Judge Paul Watford resigned in May 2023.  As the Ninth Circuit news release explained, “Judge de Alba has served as a district judge on the U.S. District Court for the Eastern District of California since July 2022, when she became the first Latina appointed to that court.”  News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023.  Before joining the Eastern District of California bench, Judge de Alba also served as a Fresno County Superior Court judge and a litigator in private practice.  Id. 

When she formally takes her seat at the Ninth Circuit, Judge de Alba will be the fourth Latina to serve on that court.  Senator Alex Padilla told Law360:  "The daughter of immigrants from Mexico, Judge de Alba's path to her confirmation to the Ninth Circuit today embodies the American Dream."  Courtney Buble, Eastern District Of Calif. Judge Confirmed To 9th Circ., Law360 11/13/2023.

Similarly, the Chief District Judge for the Eastern District of California, Kimberly J. Mueller, offered  “[h]earty congratulations to Judge de Alba! We are thrilled that the U.S. Senate has recognized her stellar qualifications and substantial experience as fully supporting her elevation to the federal appellate court.”  News Release, Senate Confirms District Judge Ana de Alba to U.S. Court of Appeals for the Ninth Circuit, 11/13/2023.  Bloomberg Law reported that “three judges she served with on the Superior Court of California” found Judge de Alba “exceptionally well suited for appellate work” because “[s]he excels at research and writing, carefully and meticulously prepares for matters before her and approaches cases and issues with an open mind.”  John Crawley, Latina Judicial Trailblazer Elevated to Largest Appellate Court, Bloomberg Law, 11/13/2023.

Judge de Alba will maintain her chambers in Fresno, where she has deep ties to the community.  Born in Merced, California, Judge de Alba attended the University of California at Berkeley for her undergraduate and legal studies.  As the Ninth Circuit press release explained, Judge de Alba has served on the board of many public interest and bar association boards in the Eastern District and throughout California.  Judge de Alba has received service awards from the Rape Counseling Services of Fresno, Centro La Familia Advocacy Services, Central California Legal Services, and many more.  Id.; see also Ben Shatz, New 9th Cir. Judge de Alba!, http://socal-appellate.blogspot.com/2023/11/new-9th-cir-judge-de-alba.html, Southern California Appellate News, 11/14/2023. 

Welcome Circuit Judge Ana de Alba!

The Unsettling Politicization of Higher Education (Including Legal Education)

Law schools should train students how to think, write, and practice like a lawyer. They should only admit students, based on LSAT scores and undergraduate grade point average, who are likely to succeed in a law school and the legal profession. And they should produce competent graduates who can pass the bar examination on their first attempt, and who obtain jobs that justify the non-dischargeable debt that graduates often incur.  

To do so, contrary to the views espoused by some scholars, the Socratic method is necessary, as it teaches students the value of, among other things, preparation, thinking on your feet, and performing capably in front of a large audience.[1] And if cold calling causes students stress and anxiety, so be it. Law schools should teach students how to cope with, not avoid, anxiety, pressure, and stress because that will prepare them for the legal profession – and life. Additionally, legal writing courses should be integrated within the law school curriculum and courses should blend doctrine and practical skills to produce marketable graduates. In short, law school is about teaching students how, not what, to think, providing students with real-world skills, and respecting the diverse viewpoints that students of all backgrounds bring into the classroom.

Recently, however, some law schools – and universities – have become so liberal that division and discord have replaced civility and respect, and ideological uniformity has replaced the tolerance of diverse viewpoints.[2] The bias against hiring conservative scholars at many law schools is one example that reflects the liberal bias and discriminatory behavior that pervades some institutions.[3]

Sadly, the current conflict in the Middle East underscores how political – and often extreme – institutions of higher education have become. To be sure, the history of the Israeli-Palestinian conflict is complex. Both Israelis and Palestinians have suffered horribly, and both sides bear responsibility. One would expect that academics, including law professors, would have a balanced view that recognizes the nuances of this conflict and appreciates the diverse points of view that students and citizens express on this tragic situation.

Think again.

For example, despite the torture and murder of Israelis last month, a professor at Albany Law School posted on social media "Long live the Palestinian resistance & people of Gaza, tearing down the walls of colonialism and apartheid."[4] Did this professor express compassion for the horror and suffering that so many Israelis endured? No. Additionally, a professor at Cornell University described the attacks by Hamas as “exhilarating,”[5] and a professor at Columbia University described Hamas’ attacks as “astounding,” "incredible,” and a "stunning victory."[6] Not to be outdone, an organization that a New York University professor  co-founded praised “heroic Palestinian resistance.”[7] And an adjunct professor at the City University of New York posed on social media that “Zionists are straight Babylon swine,” who are “racist arrogant bullies” affected by a “genocidal disease.”[8]

In response, major donors at some institutions, including Harvard University, Stanford University, and the University of Pennsylvania, criticized these universities for failing to explicitly condemn Hamas’ attack, with one Penn donor expressing disgust at the university’s “silence in the face of reprehensible and historic Hamas evil against the people of Israel.”[9] Considering the expressed and unrelenting desire of some of Penn’s faculty and administration to fire Professor Amy Wax, one would have expected that Penn’s administration would immediately condemn the torture and slaughtering of countless Israelis. It did not.[10] Given the increasing toxicity in academia, it should come as no surprise that students are so afraid to disagree with their professors.[11]

This troubling reality, namely, academics with extreme viewpoints who show no tolerance for opposing views, is not new.  At Stanford University, former Associate Dean for Diversity, Equity, and Inclusion Tirien Steinbach told federal judge Kyle Duncan, who was invited to speak at the law school, that his opinions have “caused harm” thus placating a mob of students who tried to shout down Duncan because they disagreed with his conservative judicial philosophy.[12] Similarly disgraceful conduct occurred when Josh Blackmun, an accomplished and highly respected constitutional scholar, attempted to speak at CUNY Law School, only to be met by students who sought to censor his speech and mischaracterize his views.[13] And consider administrators and professors who, while preaching “diversity, equity, and inclusion,” condemn “whiteness,” embrace segregated living spaces and graduation ceremonies, establish “bias” hotlines where students can anonymously claim to be the victim of “microaggressions,” ban words such as “brave” and “American,” and claim that math is racist.[14]  Sadly, this is only a sample of the concerning behavior that is occurring on college and law school campuses across the country – and dividing students based on, among other things, race, gender, and political affiliation.

***

The deplorable conduct of these and other educators has affected students and inhibited the exchange of diverse viewpoints. For example, Nyna Workman, an NYU law student, refused to condemn Hamas, stating that “Israel bears full responsibility for this tremendous loss of life,” and that Israel’s “regime of state-sanctioned violence created the conditions that made resistance necessary.”[15] Remember that this gibberish was expressed by a student at NYU Law – one of the best law schools in the United States – not at some predatory law school that admits unqualified students, saddles them with non-dischargeable debt, and provides them with no legitimate prospects for long-term employment.  Thankfully, in response to Workman’s disgraceful conduct, Winston and Strawn withdrew her offer of employment.[16]

Likewise, at Harvard University several student groups stated that Israel was “entirely responsible” for the violence.[17] And few can forget CUNY Law School’s student commencement speaker who used her platform to denounce “Israeli settler colonialism” and “the fascist N.Y.P.D.”[18] Additionally, some NYU students were seen ripping down posters detailing stories about Israeli hostages,[19] and a student at Cornell University threatened to slit the throats of Jewish students.[20]  Not to mention, Princeton and NYU law graduate Colinford Mattis, who, along with Urooj Rahman, thought it would be a good idea to throw a Molotov cocktail at an empty police car.[21] This is a sample of what some universities and law schools are producing these days. Indeed, the damage that ideologically driven professors inflict has far-reaching consequences on the students that they serve because it fails to teach students how to think critically, disagree respectfully, and communicate civilly.

To make matters worse, some professors coddle rather than challenge students, placing less emphasis on the development of critical thinking and other real-world skills, and instead indoctrinating them into a worldview where diverse viewpoints are unwelcome, ‘feelings’ matter more than logic, and emotion matters more than reason.[22] Lest there be any doubt, look at the nonsense occurring on many campuses where ultra-fragile students often feel “unsafe” when confronted with a perspectives different from their own and thus demand “safe spaces,” administrators provide “cry closets,” to help students deal with the stress of examinations, or offer Play-Doh to students who could not cope with the results of the 2016 presidential election. [23] And consider the shenanigans at Yale Law School, where a group of ‘offended’ students interrupted a discussion on free speech by a speaker whose views differed from their own.[24] 

Put simply, some academics have placed a premium on identity politics, where one’s group identity matters far more than an individual’s character, and on victimhood, where students are convinced that they are ‘oppressed’ and ‘marginalized.’ As Cornell Law Professor William A. Jacobson stated, “[a]lmost everything now is viewed through an identity lens, pitting groups against each other, pitting colleagues against one another, and pitting students against their peers.”[25]  In other words, the notion of diversity, equity, and inclusion is anything but diverse, equitable, or inclusive.[26]

As Professor Jacobson stated, "[t]here is substantial evidence that such DEI programming makes race and other relations worse, not better.”[27] Moreover, the impact of this divisive nonsense is that it promotes hate and homogeneity of thought, not diversity and a marketplace of ideas. As one professor at the University of California-Berkeley School of Law stated, “if you don’t want to hire people who advocate hate and practice discrimination, don’t hire some of my students.”[28] No wonder our society is divided and riddled with ignorance.

The role of professors is to prepare students for the real world, not to indoctrinate students into a liberal or conservative worldview that is infused which the very implicit and explicit biases that professors often accuse others of harboring. Professors should develop students’ (particularly law students’) critical thinking, writing, and communication skills, and hold students to high standards. They should also ensure that the classroom is a welcoming place for all students, regardless of, among other things, political affiliation, race, gender, sexual orientation or identity, and socioeconomic status. Equally as important, professors should expose students to conservative and liberal viewpoints, and ensure that dialogue is civil and respectful. After all, if diversity, equity, and inclusion mean anything, it should mean that universities respect and welcome views with which they disagree, and that educators dedicate themselves to equipping students with the tangible and intangible qualities needed to succeed in law and life.

Put simply, educators must teach students how to think, not what to think, because teaching is not about professors or their views – it is about the students.

 

[1] See The University of Chicago Law School, The Socratic Method, available at: The Socratic Method | University of Chicago Law School (uchicago.edu)

[2] See, e.g., Robert Leroux, Woke Madness and the University (Winter 2021), available at:  Woke Madness and the University by Robert Leroux | NAS; Lexi Lonas, UPenn Loses Bog Donor, Board Member Resigns Citing ‘Antisemitism,’ (Oct. 16, 2023), available at:  UPenn loses big donor, board member resigns citing ‘antisemitism’;  

[3] See Adam Bonica, et al., The Legal Academy’s Ideological Uniformity (2018), available at:  The Legal Academy’s Ideological Uniformity (harvard.edu)

[4] Michael Goot, Albany Law Professor Ripped for Praise of Palestinians ‘Tearing Down the Walls of Colonialism (October 12, 2023), available at:   Albany Law professor ripped for praise of Palestinians 'tearing down the walls of colonialism' - WNYT.com NewsChannel 13

[5]   Yarun Steinbuch, Cornell Professor Who Found Hamas Attack ‘Exhilarating and ‘Energizing’ Now on Leave of Absence (Cornell professor who found Hamas attack ‘exhilarating’ and ‘energizing’ now on leave of absence (msn.com)

[6]   Tens of Thousands Sign Petition to Oust Ivy League Columbia Professor Who Praised Hamas Terror Attack Against Israel as an ‘Awesome Stunning Victory,’ (Oct. 16, 2023), available at:  Tens of thousands sign petition to oust Ivy League Columbia professor who praised Hamas terror attack against Israel as an 'awesome stunning victory' | Daily Mail Online

[7] Marya Ruth Dunner,   NYU Prof’s ‘Decolonization’ Org Praises ‘Heroic’ Hamas After Brutal Attacks Against Jews (Oct. 11, 2023), available at: Campus Reform | NYU prof's 'decolonization' org praises 'heroic' Hamas after brutal attacks against Jews

[8]  See Juni Nguyen, Some U.S. Professors Praise Hamas’s October 7 Terror Attacks (Nov. 8, 2023), available at: Some U.S. Professors Praise Hamas’s October 7 Terror Attacks | ADL

[9]  Kate Anderon, Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (Oct. 24, 2023), available at: Donors Pull Support After Harvard, UPenn Fail to Condemn Hamas (dailysignal.com); see also Judy N. Liu,  Alumni Condemn University’s Response to Hamas Attach (Oct. 31, 2023),  available at: Alumni condemn University's response to Hamas attack (stanforddaily.com)

[10] See id.

[11] See James Freeman, Most U.S. College Students Afraid to Disagree with Professors (Oct. 26, 2018), available at: Most U.S. College Students Afraid to Disagree with Professors - WSJ To be clear, there are many outstanding and inspiring law professors (and professors throughout academia) who are instrumental in helping their students prepare for the legal profession (or whatever profession they pursue). And there are many law schools whose administrations do the same. But that is increasingly becoming the exception, not the rule.

[12] Josh Moody, Dean at Center of Stanford Law Controversy Resigns (July 21, 2023), available at:  Dean at center of Stanford Law controversy resigns (insidehighered.com)

[13]  See  Scott Jaschik, Guest Lecture on Free Speech at CUNY Law School Heckled (April 15, 2018), available at:  Guest lecture on free speech at CUNY law school heckled (insidehighered.com)

[14] See, e.g., Paul Farrell, Florida University Adopts Radical DEI Program that Condemns US As a System of ‘White Supremacy,’ (March 1, 2023), available at:  Florida university adopts radical DEI program that condemns US as a system of 'white supremacy' | Daily Mail Online; Seattle Schools Propose to Teach That Math Education is Racist—Will California Be Far Behind? (Oct. 29, 2019), Lee Ohanian, available at:  Seattle Schools Propose To Teach That Math Education Is Racist—Will California Be Far Behind? | ;  Karsten Schneider, New York University Moves to Implement Racial Segregation in Student Dorms (Aug. 24, 2020), available at:  New York University moves to implement racial segregation in student dorms - World Socialist Web Site (wsws.org); Richard Vedder, Racial Segregation on American Campuses: A Widespread Phenomenon (Nov. 15, 2018), available at: Racial Segregation On American Campuses: A Widespread Phenomenon (forbes.com)

[15]  Danielle Wallace, Nonbinary NYU Student Bar Association President Loses Job After Defending Hamas Terror Attack on Jews (Oct. 11, 2023), available at:  Nonbinary NYU Student Bar Association president loses job offer after defending Hamas terror attack on Jews | Fox Business; Tesfaye Negussie and Aisha Frazier, NYU Law Student Who Blamed Israel After Hamas Attacks Defends Remarks (Oct. 25, 2023), available at: NYU law student who blamed Israel after Hamas attack defends remarks - ABC News (go.com)

[16] See id.

[17]  Names and Faces of Harvard Students Linked to an Anti-Israel Statement Were Plastered on Mobile Billboards and Online Sites (Oct. 12, 20203), available at:  Names and faces of Harvard students linked to an anti-Israel statement were plastered on mobile billboards and online sites | CNN Business

[18]  Ginia Bellafante, She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target (June 2, 2023), available at:  She Attacked Israel and the N.Y.P.D. It Made Her Law School a Target. - The New York Times (nytimes.com)

[19]  Krish Dev, Students Caught Tearing Down Israeli Hostage Posters May Face Disciplinary Action (Oct. 23, 2023), available at: Students caught tearing down Israeli hostage posters may face disciplinary action (nyunews.com)

[20]  See Brian Mann, Cornell Student Arrested in Connection with Antisemitic Threats on NY Campus (Oct. 31, 2023), available at:  Cornell student arrested in connection with antisemitic threats on NY campus : NPR

[21]  Jonathan Dienst, Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty Oct. 6, 2021), available at:   Lawyers Who Allegedly Threw Molotovs at NYPD Cars Amid George Floyd Protests to Plead Guilty – NBC New York

[22]  See, e.g., Yascha Mounk The Real Chill on Campus (June 16, 2022), available at: The Real Chill on Campus - The Atlantic

[23]  See, e.g., Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas are Setting Up A Generation for Failure available at: The Coddling of the American Mind; Grace Bird, ‘Cry Closet’ Installed for Finals at University of Utah (April 25, 2018), available at: 'Cry Closet' Installed for Finals at University of Utah (insidehighered.com); Jonathan Zimmerman, College Campuses Should Not be Safe Spaces (Jan. 17, 2019), available at: College Campuses Should Not Be Safe Spaces (chronicle.com); Stacy Zaretsky, T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled ‘P*ssies,’ (Nov. 14, 2016), available at: T14 Law School Removes Post-Election Play-Doh Event From Website After Students Labeled 'P*ssies' - Above the Law

[24]  See Yaron Steinbuch, Yale Law Students Disrupt Bipartisan Free Speech Panel (March 18, 2022), available at: Yale law students disrupt bipartisan free speech panel (nypost.com)

[25]  Louis Casiano, Ivy League School Slammed After Professor Calls Israel Attack ‘Exhilarating’: A Much Deeper Problem (Oct. 20, 2023), available at:  Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News

[26]  Ryan Quinn White Professor Resigns, Alleges Reverse Discrimination (June 26, 2023), available at: White professor resigns, alleges reverse discrimination (insidehighered.com); Bonica, et al., supra note 3, available at:  The Legal Academy’s Ideological Uniformity (harvard.edu)

[27] Casiano, supra note 26, available at: Ivy League school slammed after professor calls Israel attack ‘exhilarating’: ‘A much deeper problem’ | Fox News

[28]  Allie Griffin, UC Berkeley Law Professor Urges Firms to Not Hire His ‘Antisemitic’ Students (Oct. 21, 2023), available at: UC Berkeley law professor urges firms to not hire his ‘antisemitic’ students (msn.com)

A More Appellate-Style Bar Exam? In Support of the Pending Pilot for a California Portfolio Bar Exam Alternative

As appellate practitioners and teachers, we all stress deep analysis of the law, not quick determinations without research, investigation, or collaboration.  One of my favorite aspects of full time appellate practice was just that:  time.  I treasured having more time--albeit never enough time--than I had in trial practice.  I knew being able to consult with wise colleagues, read all of the relevant cases, and carefully scour the record made me a better advocate and officer of the court.  Yet our respective state bar exams too often test quick recall of memorized rules, including some rules not even in effect anymore, and performance on a few days of high-stakes testing without the collaboration of colleagues or the benefit of research.  Sure, being able to think quickly and work as an expert in an area of the law are part of competently representing clients.  In practice, however, have you ever faced a multiple choice question on trespass to chattels which you could only answer with info you memorized?  Neither have I.   

In my state of California, a committee of incredibly dedicated law professors and legal community members created a "Portfolio Bar Exam Alternative" (PBE) proposal pending now at the State Bar.  The Bar is considering whether to adopt a pilot for this PBE alternative.  You can read the proposal in a 44-page report with 82 pages of appendices showing the data behind the proposal here:  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.  In sum, the proposal discusses what the current bar exam tests well, which sadly is socioeconomic class, and shows how an alternative pathway could benefit the public by increasing diversity in the profession and ensuring true competency before licensure. 

The PBE Pilot does not recommend eliminating the traditional bar exam for bar applicants who prefer the test.  Instead, the PBE would provide an alternative pathway to licensure for applicants who take a rigorous set of law school courses, graduate in good standing, and then work in paid post-graduate positions under attorney supervision.  These applicants would spend about six months after law school earning a salary and creating a portfolio of work showing competency to represent clients.  As former Trustee of the State Bar of California Joanna Mendoza recently explained, the pending proposal is “modest,” asking for a small initial pilot program with an approach that would “assess candidates’ competence over time, as they handle real client matters under supervision,” but would also “offer candidates a choice” and “not undermine” the current California Blue Ribbon Commission’s “proposal for a better bar exam.”  Joanna Mendoza, Opinion: The bar exam benefits test preppers and isn’t indicative of qualified attorneys, L.A. Daily J. (Oct 17, 2023).  

How would this work?  Applicants would submit portfolios of “redacted client letters, contracts, and other lawyering documents, as well as evaluations of client encounters and negotiations.”  Then, “trained, independent graders would assess these portfolios, determining which candidates are competent.”  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.    

Of course, not everyone favors the PBE proposal.  Some opponents raise thoughtful and important issues of bias and discrimination.  A small pilot can help us address these concerns.  Moreover, the PBE proposal drafters modeled their proposal “on California’s highly successful Provisional Licensure Program, as well as innovative programs in other states,” which showed positive outcomes for applicants from underrepresented communities.  See  https://board.calbar.ca.gov/docs/agendaItem/Public/agendaitem1000031526.pdf.; Mendoza, Opinion.   As former Trustee Mendoza explains: 

The State Bar’s survey of provisional licensees showed that these California candidates experienced relatively little harassment or discrimination, that they succeeded in the program even when they reported those negative experiences, and that they rated the program very highly.  Those surveys also showed that a Portfolio Bar Exam may be particularly effective in enhancing the diversity of California’s legal profession. Women of color were significantly more likely than any other demographic group to take advantage of provisional licenses that led to full bar admission. They, along with men of color and white women, were also more likely than white men to obtain full licenses. And contrary to some concerns, candidates from disadvantaged groups did not encounter difficulty finding supervisors or securing paid positions. California’s Provisional Licensure Program operated with admirable equity despite the pandemic’s many disruptions.

Mendoza, Opinion.   

The most vocal opposition seems to be from people connected to profitable bar preparation courses.  Given that “[t]est-takers in California spend an estimated $20 million a year on commercial bar preparation courses,” this opposition is not surprising.  See id.  While the PBE Pilot would not fix the system, a PBE alternative would be a start, testing actual competence, not whether an applicant has the support system to pay for expensive test prep while taking many weeks away from paid employment.   

The State Bar is asking for public comment on the PBE Pilot.  The Bar has created an incredibly easy way to comment, and commenters do not need to be attorneys.  If you are interested in commenting, just click this link, scroll to the bottom under "Direct comments to" and click the link for "online Public Comment Form”:  https://www.calbar.ca.gov/About-Us/Our-Mission/Protecting-the-Public/Public-Comment/Public-Comment-Archives/2023-Public-Comment/Proposal-for-a-Portfolio-Bar-Examination.

If you like or dislike the proposal, you can comment by simply selecting an “agree” or “disagree” button.  The Bar has also provided a box for typed or uploaded comments.  The deadline to comment is Wednesday, October 25, 2023.  I clicked “AGREE” and completed my comment in less than two minutes.  I urge you to weigh in on this important question too.   

Disclosing the Use of AI

Following well-publicized instances of lawyers using generative artificial intelligence to draft briefs that misrepresented the law, some courts now require lawyers (and pro se litigants) to certify whether, and if so, to what extent, they used AI in preparing briefs. These orders are not uniform and may require more disclosure than would be apparent at first blush. But before delving into what disclosures may or may not be required, let’s talk about AI.

Merriam-Webster defines AI as, “the capability of computer systems or algorithms to imitate intelligent human behavior,”[1] and as “a branch of computer science dealing with the simulation of intelligent behavior in computers.”[2] Merriam-Webster defines generative AI as “artificial intelligence that is capable of generating new content (such as images or text) in response to a submitted prompt (such as a query) by learning from a large reference database of examples.”[3] Generative AI includes things like ChatGPT.

The instances where lawyers found themselves in trouble for using AI involved the use of generative AI. And it was those instances that prompted the orders requiring lawyers to disclose the use of AI. But tools like Grammarly and Word’s “Editor” are AI—they’re just not generative AI. And there lies the problem—the orders requiring disclosure don’t always distinguish between AI and generative AI. For example, Judge Baylson of the United States District Court, Eastern District of Pennsylvania put on this order:

If any attorney for a party, or a pro se party, has used Artificial Intelligence (“AI”) in the preparation of any complaint, answer, motion, brief, or other paper filed with the Court and assigned to Judge Michael M. Baylson, they MUST, in a clear and plain factual statement, disclose that AI has been used in any way in the preparation of the filing and CERTIFY that each and every citation to the law, or the record in the paper, has been verified as accurate.[4]

On the other hand, Judge Starr of the United States District Court, Northern District of Texas, has put on order that distinguishes between the use of AI and generative AI. That order says:

All attorneys and pro se litigants appearing before the Court must, together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being. These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them. Here’s why. These platforms in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations. Another issue is reliability or bias. While attorneys swear an oath to set aside their personal prejudices, biases, and beliefs to faithfully uphold the law and represent their clients, generative artificial intelligence is the product of programming devised by humans who did not have to swear such an oath. As such, these systems hold no allegiance to any client, the rule of law, or the laws and Constitution of the United States (or, as addressed above, the truth). Unbound by any sense of duty, honor, or justice, such programs act according to computer code rather than conviction, based on programming rather than principle. Any party believing a platform has the requisite accuracy and reliability for legal briefing may move for leave and explain why. Accordingly, the Court will strike any filing from a party who fails to file a certificate on the docket attesting that they have read the Court’s judge-specific requirements and understand that they will be held responsible under Rule 11 for the contents of any filing that they sign and submit to the Court, regardless of whether generative artificial intelligence drafted any portion of that filing.[5]

Thus, a lawyer filing something in Judge Baylson’s court should disclose the use of an AI tool like Grammarly or Word’s “Editor” function in preparing the brief, whereas a lawyer filing something in Judge Starr’s court does not have to disclose the use of those tools, but instead must only disclose the use of generative AI.[6] While Judge Baylson’s order suggests that he might have only meant to require the disclosure of the use of generative AI (because he refers to checking citations), the language of the order sweeps more broadly and requires disclosing the use of any AI.

Given the increased use of AI and particularly generative AI, it’s likely that more courts will require the disclosure of the use of AI in preparing filings. It’s important that lawyers fully comply with those requirements.

 

[1] https://www.merriam-webster.com/dictionary/artificial%20intelligence

[2] Id.

[3] https://www.merriam-webster.com/dictionary/generative%20artificial%20intelligence

[4]https://www.paed.uscourts.gov/documents/standord/Standing%20Order%20Re%20Artificial%20Intelligence%206.6.pdf

[5] https://www.txnd.uscourts.gov/judge/judge-brantley-starr

[6] Disclosure: I used Word’s Editor in preparing this post.

Impeachment Fever and the Judiciary

Every appellate advocate wants an impartial and independent judiciary, not a bench populated by people who would trim their sails to whatever political winds put them in their seat or is blowing so hard that the easier course is to let it dictate a result. Instead, we ask for a fair application of the law.

It may seem obvious that our justice system should operate that way, but political partisans often seek to bend the courts to their favor, whether through the appointment process or through elections. Even so, we hope that on the bench our judges will seek to make decisions rooted in law rather than political preference. Not everyone agrees, however.

In 2006, one stripe of political partisans operating under the banner of the South Dakota Judicial Accountability Project sought approval of a constitutional amendment that became known as “Jail for Judges.” The proposed amendment, which was defeated at the ballot box, would have allowed thirteen special grand jurors to decide that a judge’s ruling was wrong and either fine or jail the judge, as well as strip away as much as one-half of earned retirement benefits. Judicial rulings made years ago would have been subject to this process, as long as the jurist was still alive.

As extreme as that measure was, we are seeing a spate of new challenges to our courts that seek to guarantee certain results and threaten judicial independence. One that has received a great deal of attention is the threat of impeachment aimed at a newly installed Wisconsin Supreme Court justice. It has a transparently political purpose: keeping the Court’s new majority from upsetting the legislature’s redistricting handiwork. The basis for impeachment is incredibly weak. During her campaign, now-Justice Jane Protasiewicz called the gerrymandered districts “unfair” and “rigged,” while still avoiding any promise that she would rule one way or another. Republican Assembly Speaker Robin Vos accused her of “prejudging” the challenge to those districts, now before the Court, and has suggested the impeachment was a proper response if she chooses not to recuse herself.

Of course, this is not the first time an elected judge spoke to issues coming before a court. In one instance, the Washington Supreme Court considered whether one of their newly elected members was subject to discipline for his participation in an anti-abortion rally on the day of his swearing-in ceremony. At the “March for Life” rally, Sanders thanked the crowd for supporting his election and expressed “his belief in the preservation and protection of innocent human life.”[1] A judicial conduct commission found probable cause that Sanders violated several different canons of judicial conduct, but the state supreme court found that he acted within his free speech rights and his comments and actions did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.”[2]

In another case that reached the U.S. Supreme Court, Republican Party v. White,[3] the Republican Party and several candidates for judicial office successfully challenged a canon of judicial conduct that prohibited candidates for judicial office in Minnesota from announcing their views on disputed legal and political issues on First Amendment grounds. Justice Scalia’s opinion for the Court distinguished between “pledges or promises,” a prohibition that was not before the Court, and merely announcing ones views, which the Court said does not bind a candidate once elected.[4]

The opinion found it incongruous to permit candidates to express support for a prior judicial decision, but not criticism of it. It further noted that the prohibition related to taking positions on issues, but not expressing oneself for or against particular lawsuit parties. Thus, rather than be aimed at impartiality, which was its putative purpose, the Court found the prohibition was against expressing a view of the law upon which voters might choose to vote. As Justice O’Connor expressed in a concurrence, as long as you have judicial elections, something she disfavored, candidates, including incumbents, are going to express views on issues before the public, and that doing so was necessary to maintain public confidence in the courts.[5]

These cases suggest that the principal basis for impeachment in Wisconsin is inconsistent with established First Amendment principles. Garnering less attention, but no less problematic, is the tactic being employed in North Carolina. Justice Anita Earls, a black jurist on the state supreme court, gave an interview in which she advocated for greater diversity in the state court system, labeled the frequent interruptions of female advocates before the court an example of implicit bias, and bemoaned the termination of racial equity and implicit bias training in the judiciary. She relied on a recent study for her comments and said that diverse decision-making results in better outcomes, assures that a range of perspectives are considered, and secures greater public support because people are confident that more voices are heard.

For those remarks, the North Carolina Judicial Standards Commission began an investigation in August based on reading those remarks as accusing her judicial colleagues of “racial, gender and/or political bias.” The Commission suggested that the remarks “potentially violate[] Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” Earls, who believes she was supporting public confidence in the judiciary, filed a federal lawsuit to enjoin the Commission from proceeding, citing First Amendment grounds and intimating that the Commission’s investigation could be used by the legislature to remove her from the bench.[6]

Early in our history, these types of attacks on judges when the political powers that be disagreed with rulings had a brief lifespan. The party of Thomas Jefferson, in control of the presidency and the Congress, was frustrated by the Federalist judicial appointees and their rulings. They tested the impeachment powers first against a New Hampshire district court judge, John Pickering, who was removed from office in 1804 upon apparently deserved accusations of habitual intoxication and insanity. Then Congress went after Justice Samuel Chase in what was generally regarded as a dry run at Chief Justice Marshall. Chase had placed himself in the sights of the new Democratic-Republican majority through partisan rants contained in his jury charges, as well as his handling of cases under the Alien and Sedition Acts. Despite holding a sufficient majority to convict in the Senate, enough party members balked at the process so that conviction fell four votes short, effectively ending the effort aimed Marshall and understood as a commitment to judicial independence that seemed strong until more recently.

As advocates, we need to recommit to first principles and denounce these new efforts to turn the judicial branch into a political football that can be manipulated to achieve what proper legal arguments cannot. While the judiciary is not immune from the ebb and flow of political opinion, it should not be reshaped by political threats based on the expression of views.

 

[1] Matter of Disciplinary Proceeding Against Sanders, 135 Wash. 2d 175, 178, 955 P.2d 369, 370 (1998).

[2] Id. at 768, 955 P.2d at 370.

[3] Republican Party of Minnesota v. White, 536 U.S. 765, 768 (2002).

[4] Id. at 770.

[5] Id. at 788–89 (O’Connor, J., concurring).

[6] Earls v. N.C. Jud. Stds. Comm’n, et al., Complaint, Case No. 1:23-cv-00734 (N.C. M.D., filed Aug. 29, 2023).

Teaching A New Generation of Law Students (and Students Generally)

     Law students (and students generally) are different than students from twenty or thirty years ago. Below are a few observations about the current generation of students, and a recommendation concerning how to adapt to a changing student population. Of course, this does not apply to all or even the majority of students, but the issues listed below are certainly more prevalent now in universities and law schools.[1]

1.    Students can be entitled and narcissistic.

     Some students are simply entitled and, quite frankly, narcissistic.[2] They lack respect for authority and do not adhere to common norms of civility and respect (e.g., shouting down a speaker with whom they disagree). They believe that they are entitled to a certain grade, to contact a professor at any time of the day, or to challenge any decision that is inconsistent with their expectations (often to administrators so concerned about student retention that they yield to every demand, however unreasonable). They often don’t respect boundaries – or their professors. And they rarely take accountability for their actions, instead blaming others for their failures or behavior. Not to mention, these students’ parents, who are often living in a state of ignorance and believe that their child can do no wrong, react with hostility when their child is subject to criticism.

2.    Students don’t buy into the process of what it takes to be successful.

    Achieving success and performing at a high level requires grit. It requires hard work and sacrifice. It demands that you learn from failure and respond effectively to adversity. It requires discipline, consistency, and commitment. It requires you to take responsibility for the choices and decisions that you make daily. And it requires a recognition that your choices, not your circumstances, determine the likelihood of achieving your goals. Many students, however, do not embrace these principles or the process that it takes to be successful. In fact, over sixty percent of university students have admitted to cheating.[3]

3.    Students lack mental toughness – and other intangibles.

     Some students are too sensitive.[4] They often lack the mental toughness and other intangibles necessary to achieve success in a competitive legal profession. For example, some students react negatively to constructive criticism. They respond poorly to adversity. They make excuses for an unacceptable work product and eschew accountability for their choices. They allow external factors to affect their self-perception and motivation and blame others whenever they experience failure. And they do not interact and work effectively with others, especially those whose viewpoints differ from their own. As one scholar explains:

Gen Z has less resilience than other generations, … It’s less that faculty are making their courses harder and more that students feel greater anxiety and overwhelmed when they perform worse than they expected. This puts them in a ‘fight or flight’ state, and often they’re fighting to get grades changed or to discipline faculty members.[5]

     This is a sad state of affairs.

4.    Students struggle with mental health issues.

     Increasingly, students struggle with mental health and substance abuse issues, which affects their ability to study effectively and perform at a high level. To be sure, approximately sixty percent of college students meet the criteria for at least one mental health problem.[6] One survey concluded as follows:

Specifically, 44 percent of students reported symptoms of depression; 37 percent said they experienced anxiety; and 15 percent said they were considering suicide—the highest rate in the 15-year history of the survey. More than 90,000 students across 133 U.S. campuses participated in the survey.[7]

     Undoubtedly, this affects students’ ability to succeed academically and professionally.

5.    Students are consumed with and affected negatively by social media.

     Many students are consumed with social media, often interested in how many 'likes' they receive for a post on Instagram or Facebook, or engaged in a debate on X, formerly known as Twitter.[8] And for some students, social media is their primary source of information. Unfortunately, this can affect students’ mental health and affect their ability to succeed academically. As one commentator states, “[e]xcessive social media use can … take a toll on young people's mental health.”[9] Indeed, “[a]s college-age students are spending up to an hour or two a day at a minimum on social media, it is cutting into time that they could be studying or engaging in actual social activities.”[10]

6.    Students enter law school lacking analytical thinking and writing skills.

     Students often enter law school without adequate analytical thinking and writing skills, often because their undergraduate institutions did not sufficiently emphasize the development of these skills.[11] This places a substantial burden on professors, especially legal writing professors, to prepare students for law practice. It should come as no surprise that many judges and lawyers criticize law graduates’ writing skills, which can be traced to inadequate emphasis on developing writing skills at the undergraduate level (and to some extent, in legal education).

7.    Students are too political.

     Some students have such strongly held political views that they develop their relationships with, and judgment of, others based on whether they agree with their views.[12] This has led to a failure to respect different viewpoints, which is one of the primary benefits of a diverse student body. It has led to a lack of civility and respect among those with whom students disagree. It has made compromise impossible, and a failure to appreciate nuance prevalent. Indeed, one needs only to look to students’ behaviors in response to university-sponsored speakers that they don’t like to see how pathetic some students have become.[13] If you doubt this, consider how many students claim to feel “unsafe” or cry, scream, or collapse whenever a professor or student says something that “offends” them.  To know that college and even law students behave like this shows how deeply troubled students have become.[14]

     Students and future advocates need to understand that, if you are pro-choice, you can respect and be friends with someone who is pro-life. If you voted for President Biden, you can respect and be friends with someone who voted for Donald Trump. The fact that this even needs to be stated shows how significantly our educational system and culture has declined.

***

      How should law professors (and professors generally) respond to this reality?

     It begins with university administrators. If administrators coddle entitled students and accommodate their every demand, this leaves professors powerless to do anything to ensure student accountability and success. After all, if professors know that their dean will not support them if a conflict with a student arises and where the student is at fault, there is no incentive for professors to do anything other than coddle students and give inflated grades.

     More fundamentally, however, educators, including law professors, should hold students to high standards and focus on preparing them for the real world. This means teaching students how to think analytically and write persuasively and holding them accountable for subpar work. It also means teaching soft skills such as mental toughness, resilience, perseverance, grit, and respect for diverse viewpoints, and emphasizing the coping skills needed to control their emotions and deal with the challenges that law and life invariably present. 

    After all, students need to know how to handle adversity. They need to learn how to respect and work with people who think differently from them – and who they do not like. They need to deal with failure constructively and cope with setbacks effectively.[15] They need to learn that crying and screaming whenever things don’t go their way (or when someone disagrees with them) will not serve them well as a lawyer (or in any aspect of life). As one commentator explains:

College is not summer camp, college is not group therapy, college is not a sanatorium, college is not (despite the current fad for "adventure" bonding experiences prior to the beginning of classes) survival training. They are students (the word comes from the Latin for "to apply oneself seriously"), and the best thing I can do for them, as their professor, is to treat them not as children but as serious people who are there to be serious about the subjects they study.[16]

      Most importantly, students need to know that they are not entitled to anything – except what they earn, and teachers should know that coddling students only sets them up for failure.[17]

 

[1]  See Niraj Chokshi, Attention Young People: This Narcissism is All About You (May 15, 2019), available at: Attention Young People: This Narcissism Study Is All About You - The New York Times (nytimes.com)

[2] See id.; see also Cynthia M. Frisby, “It’s All About ME”: Narcissism and Entitlement Among College Students (2008), available at: Narcissism.pdf (aejmc.com)

[3]  See International Center for Academic Integrity, available at: Facts and Statistics (academicintegrity.org)

[4] See Brett A. Sokolow,  College Students Are Sooo Sensitive (Jan. 6, 2016), available at: College Students Are Sooo Sensitive... | HuffPost College

[5] Chris Burt, Are Gen Z’s Complaints About College Workload Warranted, Or Are They Just Entitled? (October 16, 2022), available at: Are Gen Z’s complaints about college workload warranted, or are they just ‘entitled’? - University Business

[6] See Mary Ellen Flannery, The Mental Health Crisis on College Campuses (March 29, 2023), available at: The Mental Health Crisis on College Campuses | NEA

[7] Id.

[8] See Peter Suciu, Social Media Continues to Affect the Health of College Students (December 12, 2022), available at: Social Media Continues To Affect The Health Of College Students (forbes.com)

[9] Id.

[10] Id.

[11] See John Schlueter, Higher Ed’s Biggest Gamble, Can colleges truly teach critical-thinking skills? (essay) (insidehighered.com)

[12] Georgetown University, One in Four College Students Say They Ruled Out a School Due to Its State’s Political Climate (A One in four college-bound students say they ruled out a school due to its state’s political climate - THE FEED (georgetown.edu)

[13] See Karen Sloan and Nate Raymond, Stanford Apologies After Law Students Disrupt Judge’s Speech (March 13, 2023), available at:  Stanford apologizes after law students disrupt judge's speech | Reuters

[14] See Josh Blackman, Students at CUNY Law Protested and Heckled My Lecture About Free Speech on Campus (April 12, 2018), available at: Josh Blackman » Students at CUNY Law Protested and Heckled My Lecture about Free Speech on Campus

[15] Thankfully, at Georgia College and State University, I have outstanding administrators and students who inspire me to continue teaching.

[16] Daniel Mendelsohn,  How To Raise a Proper College Student (June 28, 2017), available at: Professor Daniel Mendelsohn On Entitled College Students - How to Raise a Proper College Student (townandcountrymag.com)

[17] See Greg Lukianoff and Jonathan Haidt, The Coddling of the American Mind: How Good Intentions and Bad Ideas Are Setting Up a Generation for Failure (Penguin, 2018).

 

The Optics of Ending Affirmative Action

In Students for Fair Admissions v. Harvard, the United States Supreme Court ended affirmative action in college admissions.[1] Specifically, the Court held that race-based considerations in the admissions process violated the Fourteenth Amendment’s Equal Protection Clause.[2] Writing for the majority, Chief Justice John Roberts stated that such affirmative action policies “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”[3] Chief Justice Roberts also interpreted the Equal Protection Clause to require that universities act "without regard to any difference of race, of color, or of nationality," and emphasized that “[e]liminating racial discrimination means eliminating all of it.”[4] This language is reminiscent of Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, where he stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[5]

Importantly, however, the Court did not prohibit universities from considering race in the admissions process "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."[6] In other words, although an applicant’s race cannot, by itself, be a factor in the admissions process, it can be considered if an applicant explains, such as in a personal statement, how the applicant's race created unique obstacles or adversity that the applicant overcame.

Regardless of one’s opinion about the constitutionality – or efficacy – of affirmative action programs, the Court’s decision undermined its legitimacy and reinforced the notion that the Court is a political institution. To begin with, Chief Justice Roberts’ opinion effectively overruled three precedents – Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas – thus making stare decisis appear like a doctrine of convenience rather than conviction.

What’s worse, the Court’s decision reflects the deeply troubling reality that the Constitution’s meaning changes when the political affiliation of the Court’s members changes. Let’s be honest: the only reason that the Court ended affirmative action in college admissions is because Justice Brett Kavanaugh replaced former Justice Anthony Kennedy and because Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg. To be sure, ten years ago, the Court would have decided Students for Fair Admissions differently, and only because the political affiliations of the Court’s members at that time were different. Indeed, the Court’s decision suggests that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2023 than there were in 1978 (when Bakke was decided) or 2003 (when Grutter was decided). That is the point – and the problem. The Court’s decision cheapened constitutional meaning and contributed to transforming the Court into a political, not legal, institution. The justices surely understand this, but probably do not care.[7]

Lest there be any doubt, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and Planned Parenthood v. Casey and held that the Fourteenth Amendment did not protect a right to abortion.[8] Although the Court’s decision was correct as a matter of constitutional law, it was also incorrect from a pragmatic standpoint. After all, just as one wonders what made the justices discover an unenumerated constitutional right in those invisible penumbras that the Court created in Griswold v. Connecticut, one must also wonder what made the justices suddenly discover that the Constitution did not protect a right to abortion. The answer is obvious: the justices’ political preferences. Unfortunately, the public’s opinion of the Court is damaged when it perceives that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. And although the justices continually emphasize that policy preferences do not motivate their decisions, the fact remains that perception matters more than reality. In fact, it is reality.

This raises a broader point: why is the Court getting involved in these cases? Where reasonable people can disagree regarding the Constitution’s meaning, such as where the text is broadly phrased or ambiguous, why is the Court deciding for an entire nation what should be decided democratically? For example, in Kennedy v. Louisiana, the Eighth Amendment’s text could not possibly answer the question of whether authorizing the death penalty for child rape constituted cruel and unusual punishment.[9] Likewise, in Clinton v. New York, the Presentment Clause provided no guidance on the Line-Item Veto Act’s constitutionality.[10] Additionally, in Citizens United v. FEC and McCutcheon v. FEC, the First Amendment’s text could have been interpreted differently when deciding the constitutionality of limits on independent expenditures.[11] As a result, the Court should have allowed the people to decide these issues democratically.  But the Court refused to do and, in so doing, nine unelected justices –who graduated from elite law schools and come from a privileged pedigree – substituted their judgment for that of citizens and Congress. Not to mention, it is quite problematic to preach deference to the coordinate branches in cases such as National Federation v. Independent Investors v. Sebelius, and then in Shelby County v. Holder to simultaneously invalidate portions of the Voting Rights Act that the Senate reauthorized by a vote of 99-0.

If the Court wants to maintain its legitimacy, it should show greater respect for its precedents and stop getting involved in cases where the Constitution’s text nowhere demands its involvement.

 

 

[1] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)

[2] Id.

[3] Id.

[4] Id.

[5] 557 U.S. 701 (2007).

[6]  See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)(emphasis added).

[7] This is not to say that the majority was wrong as a matter of constitutional law, or in any way to question the justices’ motivations. It is to say, however, that their decision suggests that politics, not law, drove the decision.

[8] 142 S. Ct. 2228.

[9] 554 U.S. 407 (2008).

[10] 524 U.S. 417 (1998).

[11] 558 U.S. 310, (2010); 572 U.S. 185 (2014).

What Makes a Great Attorney – The Intangibles

The best attorneys often, but not always, share common characteristics. They are incredibly intelligent. They often graduated from top law schools and were ranked at the top of their law school classes. They were on law review. They obtained federal clerkships. And they received an offer from a large law firm in, for example, New York, Los Angeles, or Chicago.

But what truly distinguishes the best from the very good (and mediocre) attorneys is the intangibles, namely, those characteristics that you cannot teach in a classroom or learn from a textbook. Below is a list of the intangibles that are essential for greatness in the law – or any aspect of life.

1.    Hard work.

This doesn’t need a detailed explanation. The best attorneys will always outwork their adversaries. They never use notes. They know every precedent that is relevant to their litigation. They can recite the page and line numbers of every deposition that was taken in their case. And they will spend however long it takes to ensure that their preparation is as perfect as possible. In short, they are tough, and they have heart.

As legendary coach Vince Lombardi stated, “[i]f you’re lucky enough to find a guy with a lot of head and a lot of heart, he’s never going to come off the field second.”[1]

2.    Doing things right all of the time, not some of the time.

Vince Lombardi stated that “[w]inning is not a sometime thing; it’s an all the time thing. You don’t win once in a while; you don’t do things right once in a while; you do them right all of the time.”[2] He was right.

The best attorneys demonstrate unwavering commitment, unparalleled motivation, and unquestionable discipline every day, and in every case. And they do so when their circumstances, whether professional or personal, are less than ideal. After all, it’s easy to do the right things when you’re doing something that you want to do, or when your life circumstances are perfect. But it’s harder to do the right things when you are required to do a task that you despise or when you are facing professional or personal adversity. The best attorneys do the right things regardless of external factors because they focus on what they can control and never get distracted by what they cannot.

Most importantly, the best attorneys focus on the process by which a successful outcome is achieved, and not on the outcome itself. They know that if they make the right choices, the results will take care of themselves. They also know that success must be sustained if one is to truly be called successful.

3.    They take responsibility for their choices and don’t make excuses or blame others.

The best attorneys -- indeed, the best people – recognize that their choices and decisions, not their circumstances, determine their destiny. They take responsibility for their life (and happiness) and make choices and decisions daily that maximize their chances for success. As Vince Lombardi stated, “truth is knowing that your character is shaped by your everyday choices.”[3]

And when things go wrong, such as by receiving an unfavorable ruling, they don’t make excuses. They don’t blame others. They learn. They take responsibility. And they grow.

4.    Responding positively to failure.

Everyone fails at some point in the law and in life. As stated above, the best attorneys do not respond to failure by making excuses or blaming other people and circumstances. Instead, they view failure as an opportunity to enhance their self-awareness and their ability to self-assess. To grow. To improve.

As Nick Saban, the head coach of the University of Alabama’s football team stated, you should “never waste a failure.”[4]

5.    Humility.

The best attorneys are humble. They listen to and learn from their colleagues. They accept criticism. They collaborate. And they value different perspectives because they know that they don’t know everything, that they aren’t always right, and that others may have something to teach them.

Lawyers (and people generally) who lack humility often harm their careers because, among other things, no one likes to work with them. In so doing, they prohibit meaningful professional (and personal) relationships. If you doubt that, have a conversation with your local narcissist(s).

6.    Adaptability.

The best lawyers know how to adapt to changing circumstances. They do not, for example, follow a script when making an oral argument or taking a deposition. Rather, they listen to a judge’s questions, or a deponent’s answers, and adapt their strategy based on a judge’s concerns or a deponent’s evasiveness. The ability to adapt, particularly when circumstances are unexpected and situations are fluid, is critical to success.

7.    Control of emotions.

The best lawyers are mature. They exercise outstanding judgment, particularly when confronted with incomplete facts. Most importantly, they know how to control their emotions. When they lose a motion, they don’t get angry (or cry) and let it affect their preparation. When a judge (or a client) is difficult, they maintain professionalism and focus on the facts. And they know how to put the past behind them and focus on living in the moment, in which past failures do not affect or influence future success. 

***

Ultimately, as Vince Lombardi said, “winning is not everything, but making the effort to win is.”[5] Lombardi summarized it perfectly when he stated that “the difference between a successful person and others is not a lack of strength, a lack of knowledge, but rather in a lack of will.”[6]

Making the effort to win – and making the right choices – isn’t determined by an LSAT score or a class ranking. It depends on whether you have the intangibles. And those with the right intangibles recognize that life “ain’t about how hard you hit. It’s about how hard you can get hit and keep moving forward. That’s how winning is done.”[7]

 

[1] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[2] Id.

[3] Id.

[4] Jason Kirk, Nick Saban Explains the Most Precious Fuel of All: Failures (July 13, 2017), available at: Nick Saban explains the most precious fuel of all: failures - SBNation.com

[5] Vince Lombardi, What It Takes to Be Number One, available at: What It Takes to Be Number One - YouTube

[6] Id.

[7] Rocky Balboa (2006), available at: HD - Rocky Balboa (2006) - inspirational speech - YouTube

Reflections on the Originalism Debate

Admittedly, I was at a loss today about what topic to write about on this blog. But then I thought about the debate that I had with Robert Peck and Phillip Seaver-Hall regarding originalism. That debate was an example of how to engage in civil and respectful discourse.

1.    We did not attack each other; we attacked each other’s ideas.

Not once did Robert, Phillip, or I attack each other. Rather, we challenged each other’s ideas and arguments, including regarding the cases upon which we relied to support different interpretive methods. Indeed, to promote a diverse and reasoned public discourse, you must separate the person from the argument, and the individual from the ideas. Otherwise, you cannot have a constructive debate and the marketplace of ideas becomes a fading memory rather than an enduring value.

2.    You can disagree and still be professional and respectful.

At all times, the language that Robert, Phillip, and I used in presenting our arguments was respectful and professional. We did not use over-the-top language or strong adjectives to denigrate or demean each other’s position or person. Simply put, you can disagree with someone and still be friends. You can disagree and still value each other as professionals and people.

If anyone doubts that, talk to a couple that has been married for fifty years. Or remember that Justices Scalia and Ginsburg had a close and enduring friendship for years. And for good reason. Human beings are much more than their views on, among other things, constitutional interpretation, their vote for a presidential candidate, or their views on abortion. As Justice Scalia said when discussing his close friendship with Justice Ginsburg, “some very good people can have some very bad ideas.”[1]

3.    We showed humility.

The debate was respectful and polite. And it was not about trying to force our views upon the readers, but about making an argument and letting the readers form their own conclusions. Robert said it perfectly: “Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said.” I suspect that some readers will agree with Robert and Phillip, and some will agree with me. That is a good thing.

Humility means, among other things, that you do not always believe that you are right. It means that you do not dismiss alternative perspectives. Rather, you listen to and learn from your opponents’ perspectives – and have the courage to admit when you are wrong. When people insist that they are right, something is usually very, very wrong.

Put differently, being an originalist does not make you a bad person; it does not mean that you support discrimination or inequality or are striving to advance a conservative agenda. Likewise, being a living constitutionalist (or embracing any alternative theory) does not make you a bad person either; it does not mean that you are relying solely on subjective values to advance a liberal agenda. Human beings are far more complex. Their ideas are far more nuanced. They come from different environments and thus have different worldviews. Respecting, rather than vilifying, those views is essential to a properly functioning democracy.

In academia today, this is often glaringly absent, and it is a shame. If diversity and inclusion mean anything, they mean welcoming and respecting different perspectives and allowing students to form their own conclusions rather than indoctrinating them into a particular worldview.

Ultimately, when asked how he dealt with colleagues with different ideas on constitutional interpretation, Justice Scalia replied, “if you can’t separate the two [the ideas from the person], you [have to] get another day job.”[2]

The same is true for law students, lawyers, professors, and, for that matter, everyone.

 

[1] 60 Minutes, Interview with Justice Scalia, available at: Justice Scalia On Life Part 1 - YouTube

[2] Id.

A Sur-Reply on Originalism

A Sur-Reply on Originalism

1. The debate on these pages teaches lessons about arguing appeals.

Most readers of this blog probably look for the practice tips and insights that are often discussed on this blog. Occasionally, though, contributors address more substantive content. Beyond the doctrinal discussions that the contributors believe inherently interesting, these debates provide practical lessons. The different approaches to argument and counterpoint also enable readers to assess the effectiveness of these different tactics.

Recently, three of us weighed in on the use of originalism as an interpretive methodology. We used support for our views from putative allies of the other side (e.g., Adam citing Justice Kagan and me citing James Madison and Justice Scalia), disputed whether examples used supported the claims made for them, employed rhetorical devices, suggested procedural flaws, and honed in on weaknesses in our opponents’ theory.

In his reply to the arguments that Phillip Seaver-Hall and I made, Professor Adam Lamparello, who started the debate, wrote a reply. I found his defense of his position too juicy to ignore.

2. A familiar debate tactic does not necessarily win the day when it assumes too much.

Adam starts with a truism – that it is easy to criticize and much harder to propose solutions, which is a standard debate tactic. He suggests that his critics have failed to propose an alternative to originalism and that undermines their stance. However, he assumes that the goal he seeks is either universally desired or achievable. While it is true that we generally agree that judges should not invent constitutional holdings as though a court were a rolling constitutional convention and instead show fidelity to text and principles, both Phillip and I argued that originalism does not produce the interpretative nirvana Adam seeks and is as prone to imprinting personal views on the Constitution as any other approach. I showed that the decisions he cited to show results different than a judge’s ideological predisposition did not qualify as originalist so that they did not support his point.

Moreover, I expressed my doubts that any methodology could cabin human preferences or biases and were instead subject to selective reliance on those historical artifacts that hit a responsive chord with our personal views. Even so, as the best we could do, I suggested that common-law methodologies were both constitutionally proper and useful, citing a 1992 book I wrote for West Publishing on the topic.

That methodology permits us to consider the text, the framers’ intent, the ratifiers’ understandings, our collective experience, and precedents to understand the wisdom of all who came before us, seeking to apply constitutional principles, and be a part of that cross-generational conversation of what free speech or due process means, anchored in the written words and underlying purposes of a constitution, as Chief Justice John Marshall said, “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”[1] That sentiment was cited and endorsed by the originalist decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] with the additional explanation that the Constitution’s fixed meaning still must be “appl[ied] to circumstances beyond those the Founders specifically anticipated.”[3]

Nor is a common-law methodology necessarily unbounded. Properly utilized, it employs generations of wisdom in applying law to controversies “to form a stable body of rules that not only determine immediate controversies but also guide future conduct,” as the late New York Chief Judge Judith Kaye explained.[4] She added, that to the extent it changes, it “grows incrementally, in restrained and principled fashion, to fit into a changing society.”[5]

That growth in sensible application, such as finding that schoolchildren do not shed their constitutional rights at the schoolhouse gate when public schools or the rights of children may never have been in the contemplation of those responsible for the First Amendment or even Fourteenth Amendment due process but still accords with our understanding of those rights throughout the ages. For me, this process seeks to remain faithful to the words and the document’s legitimacy as the written product of a democratic process, yet seeks to maintain its continued vitality by applying its commands and principles today to modern controversies not by whether those applications occurred at the time of ratification but with an understanding that that constitutional principles “have an iceberg quality, containing beneath their surface simplicity submerged complexities”[6] that may only be apparent when tested under a specific fact pattern.

3. Examples used must support the claim made.

Because he believes his debate opponents did not propose an alternative, Adam uses a straw man of “living constitutionalism,” to argue against it. Living constitutionalism is a loaded term, associated with the idea that the Constitution evolves to fit modern times and leaving judges with unbridled authority as though judges were solons employing their personal wisdom. He then works to knock down the legitimacy of “living constitutionalism.”

Treating Adam’s post as an argument against constitutional evolution through judicial decision, he uses a frequent tactic in arguments by showing how it produces bad results. Specifically, he attributes the decisions, unthinkable today, of Dred Scott v. Sandford,[7] and Korematsu v. United States,[8] to its use. He argues that both cases were policy decisions by a court not invested with policy authority, rather than interpretations of the Constitution as originally understood. I found that formulation curious because a reading of the two cases suggests that they were either originalist or textualist in nature.

In Dred Scott, Chief Justice Roger Taney wrote “[i]t is not the province of the court to decide the justice or injustice, of the laws” but to interpret the Constitution “according to its true intent and meaning when it was adopted.”[9] That sentence certainly sounds like the originalism Adam favors. Consistent with what the current Supreme Court has done to explore originalism, Taney concluded that black people “were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States,” because they were not considered citizens when the Constitution was adopted.[10] That sentence, fueling the decision, also sounds quite originalist. To overcome that position, we required a civil war and the adoption of the Thirteenth and Fourteenth Amendments.

His second example, Korematsu, might be deemed a textualist decision, rather than one based on “living constitutionalism.” The Court upheld the detestable internment of Japanese-Americans in that case, employing the same rationale it expressed a year earlier in upholding a wartime curfew applied to Japanese-Americans on the West Coast in Hirabayashi v. United States,[11] the Supreme Court reasoned that the

The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. … Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.[12]

The absence of an equal-protection declaration in the Fifth Amendment allowed the Court to treat the constitutional war powers as the proper focus of its analysis. That authority, which it thought would support a plenary curfew despite its burden on rights, would also supports a targeted curfew:

The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.[13]

Subsequently, in Korematsu, the Court echoed that explanation, stating that even though racial discrimination warrants “rigid scrutiny,” “[p]ressing public necessity may sometimes justify the existence of such restrictions; [even if,] racial antagonism never can.”[14] Once again, war necessity rather than racial discrimination, the Court believed, undergirded the abhorrent treatment of Japanese-Americans.

I’m hard-pressed to understand how originalism might have prevented this result. Originalism would not have read equal protection into the Fifth Amendment, nor would it have necessarily found applicable limits to Congress’s war powers. Certainly, when the Court soon afterwards read an equal protection strand into the Fifth Amendment, it did not engage in originalism to get there. It instead lodged it in the “American ideal of fairness” and precedent that established that equal protection for schoolchildren in the District of Columbia had to be protected just as the Court said for students in the States in the Fourteenth Amendment, was merely a “more explicit safeguard of prohibited unfairness than ‘due process of law,’” and, equally “unjustifiable” as a matter of due process.[15]

5. Conclusion

Adam initiated a fun debate, and I’m grateful to him for doing so and for the way in which it was conducted. We disagree, and we have our perspectives on what counts or doesn’t count. Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said. And they can also judge for themselves how effective our different argument strategies were in the ways that we deployed them.

 

[1] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis in orig.).

[2] 142 S. Ct. 2111 (2022).

[3] Id. at 2132.

[4] Judith S. Kaye, State Courts at the Dawn of A New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 5 (1995).

[5] Id.

[6] Flast v. Cohen, 392 U.S. 83, 94 (1968).

[7] 60 U.S. 393 (1857), superseded by U.S. Const. amend. XIV (1868).

[8] 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[9] Dred Scott, 60 U.S. at 405.

[10] Id. at 407.

[11] 320 U.S. 81 (1943).

[12] Id. at 100 (citations omitted).

[13] Id. at 101.

[14] Korematsu, 323 U.S. at 216.

[15] Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

Summer Hallucinations, Plagiarism, and ChatGPT

Recently, I asked ChatGPT to write some poems about hallucinations.  Why?  In part, because it’s summer and I think watching ChatGPT create poems is fun.  I also asked because I’ve been thinking about how to cover generative AI with my first-year students in the fall.

First, the fun.  Here’s one poem ChatGPT wrote:

In realms where minds dance on fragile strings, Where perception waltzes and reality sings, There lie the realms of wild hallucinations, A kaleidoscope of bewildering sensations.

In the tapestry of swirling dreams, Illusions bloom, unraveling seams, Colors ignite, in vivid display, As sanity fades, in a twilight ballet.

Whispers of shadows tease the mind, Whimsical echoes, elusive to find, Figments morph and take their form, An enigmatic symphony, a tempestuous storm.

Phantoms parade through the labyrinth of thoughts, Phosphorescent specters, tangled in knots, They twirl and they twist, surreal and sublime, Guiding the lost to a place out of time.

Walls dissolve, unveiling hidden dimensions, Mirrored reflections, fragmented inventions, A fragile balance, fragile as glass, Where illusions and truths become enmeshed.

The boundaries blur, in a psychedelic trance, Reality's grip begins to wane and advance, Visions arise, transcending the known, A voyage into realms where reason is thrown.

Whispers turn to laughter, laughter to screams, In this realm, nothing is as it seems, A carnival of apparitions, a fevered reverie, An exploration of the mind's symphony.

But as the moon yields to the sun's gentle touch, The hallucinations fade, leaving little as such, A fading memory, a fleeting sensation, Lost in the haze of our imagination.

Yet, in the realms where hallucinations reside, A glimpse of the extraordinary may yet preside, Where the mind's kaleidoscope paints its own art, Unveiling mysteries, a journey to embark.

So let us wander, embrace the unknown, Where hallucinations thrive and fantasies are sown, For within these realms, as illusions unfold, The depths of our imagination are truly untold.

Hopefully, you enjoyed the poem as much as I did.  But on a serious note, we know counsel who use ChatGPT run many risks, as the current free version of the generative AI program will “hallucinate” cases and statutes.  Several of my fellow bloggers have posted great notes on the ethical pitfalls of using current free generative AI without checking its sources.  Of course, we always had ethical obligations to check the work of our human staff, and of any brief-writing features we used from Lexis or Westlaw.  Perhaps ChatGPT is so fun, easy, and free, that we’re more likely to rely on it without questioning its work.  In any event, several courts have now issued standing orders reminding us of our ethical obligations.

For example, Judge Brantley Starr of the Northern District of Texas issued a standing order titled “Mandatory Certification Regarding Generative Artificial Intelligence” for “[a]ll attorneys and pro se litigants appearing before the Court.”  https://www.txnd.uscourts.gov/judge/judge-brantley-starr; see also https://www.cbsnews.com/news/texas-judge-bans-chatgpt-court-filing/.

Judge Starr ordered that parties must, “together with their notice of appearance, file on the docket a certificate attesting either that no portion of any filing will be drafted by generative artificial intelligence (such as ChatGPT, Harvey.AI, or Google Bard) or that any language drafted by generative artificial intelligence will be checked for accuracy, using print reporters or traditional legal databases, by a human being.”  Mandatory Cert. Order.  The judge explained:  “These platforms are incredibly powerful and have many uses in the law: form divorces, discovery requests, suggested errors in documents, anticipated questions at oral argument. But legal briefing is not one of them.”  Id.  According to Judge Starr, these programs “in their current states are prone to hallucinations and bias. On hallucinations, they make stuff up—even quotes and citations.”  Id.  

Judge Starr also exposed a more existential problem with these current generative AI programs, reasoning they are “[u]nbound by any sense of duty, honor, or justice,” and “act according to computer code rather than conviction, based on programming rather than principle.”  Id.  I plan to emphasize this point with my students, in hopes they will see a broader goal behind our rules on plagiarism and limits on generative AI. 

I might also show my students what ChatGPT said when I asked it to write a poem about  ChatGPT hallucinations in law:

In the realm of legal filings, precise and stern, Where facts and truth should always discern, There dwells a specter, an unwelcome guest, ChatGPT's hallucinations put to the test.

Within the code and circuits, a mind simulated, Words flow freely, but often miscalculated, In the realm of law, where clarity is key, ChatGPT's hallucinations become a liability.

For in the realm of justice, truth must prevail, But illusions dance, weaving a murky veil, False narratives concocted in the machine's mind, Threatening the integrity that we must find.

Legal filings, a battleground of truth's fight, Yet ChatGPT's hallucinations cast a blight, Misinterpretations, misconceptions arise, Distorting the facts before our very eyes.

Subtle nuances lost in a tangled web, As ChatGPT's hallucinations spread and ebb, Precision diluted, arguments distorted, The foundation of justice, slowly thwarted.

Where once we sought justice, a balanced scale, Now we grapple with the machine's tall tale, For ChatGPT's hallucinations, though mere illusions, Can lead to consequences, grave inclusions.

Thus, caution must prevail when machines take part, Their hallucinations tearing at the fabric of art, For in the realm of legal filings, we must tread, With vigilance and wisdom, ensuring truth is spread.

So let us harness technology's immense power, Yet remain mindful in this transformative hour, To temper ChatGPT's imaginative train, And keep its hallucinations bound, restrained.

For in the world of law, where justice resides, Hallucinations in filings should not coincide, Let truth be the guide, unwavering and clear, So justice may prevail, untouched by fear.

Happy summer!

"We Are All Originalists": A Response to Robert Peck and Phillip Seaver-Hall

This post responds to Robert Peck and Phillip Seaver-Hall, two contributors to this blog. Before I respond, I would like to thank Robert and Phillip for responding to my post, and for a great discussion on constitutional interpretation. I respect but disagree with their views, and below I provide a brief summary of why originalism, albeit imperfect, is the best method of constitutional interpretation.

1.    Robert and Phillip provide no credible alternative to originalism.

It’s easy to criticize and problematize. Whether it is a theory of constitutional interpretation, the flaws of implicit bias theory, or the discrimination against conservatives in the legal academy, anyone can identify flaws.

It’s harder to propose solutions.

So, what is the alternative to originalism? What interpretive theory do you support, and why? And why is that theory superior to originalism, particularly in adhering to the Constitution’s text, promoting democratic participation, and ensuring that citizens, not unelected judges, have an equal voice in determining the rights and laws under which they will be governed? In my view, Robert and Phillip’s critiques offer no alternative theory, or at least not in any great detail.

Regardless, the primary alternative – living constitutionalism – would be the cure that is worse than the disease. To be clear, in their responses, Robert and Phillip did not explicitly support living constitutionalism (or some variation thereof) but their arguments suggest that they embrace an interpretive method that at least prioritizes or at least includes elements consistent with living constitutionalism (e.g., considering contemporary values and attitudes, and relying on a provision’s underlying purposes). For example, Phillip states, “[w]hile the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.” That sounds like living constitutionalism.

Living constitutionalism, which, broadly speaking, states that the Constitution’s meaning evolves over time based on contemporary societal attitudes and circumstances that the Founders could not foresee, sounds nice, but the devil is in the details. At its core, living constitutionalism is a license for arbitrariness and subjectivity. What living constitutionalism really means is that judges can reach almost any outcome they want and for whatever reason they want. In short, it allows judges to drown in a sea of subjectivity. And when you are at sea in constitutional law, the result is often nine unelected judges imposing their policy views on an entire nation, where the Constitution’s text and the Founders’ understanding of that text becomes an afterthought – or an inconvenience. 

Furthermore, living constitutionalism does not always lead to the equitable results that its opponents believe, and it often involves manipulating or ignoring the Constitution. Let’s look at some of the decisions that “living constitutionalism” produces. To begin with, Dred Scott v. Sandford and Korematsu v. United States, decisions that reasonable (and hopefully even unreasonable) people would find abhorrent, were decisions that “living constitutionalism” produced.[2] As Justice Gorsuch explains, “each [decision] depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.”[3]

And how can anyone forget the poster child for living constitutionalism – Griswold v. Connecticut – where the Court acknowledged implicitly that the Fourteenth Amendment’s text did not provide a basis to invalidate Connecticut’s law banning contraception.[4] Yet, the Court decided to ignore the text and, out of thin air, create invisible constitutional “penumbras” that emanate from the text like Linda Blair rose from her bed in The Exorcist, or like steam rises from a hot apple pie, and from which the Court – and only the Court – could identify unenumerated rights. As the Court traveled into these invisible penumbras to create a right to privacy, the Constitution, again, became an afterthought. To be clear, a prohibition on contraception is utterly ridiculous. But it was for the people of Connecticut to petition their legislators to change the law – or vote them out of office – not for the Court to intervene and invalidate a law by inventing “penumbras” that, despite how hard you look, are nowhere to be found in the Constitution.

After Griswold, and as living constitutionalism gained traction, it gave us Roe v. Wade, where the Court discovered, either in those penumbras or in the jungle room at Graceland, a right to abortion.[5] Likewise, in Roper v. Simmons, the justices suddenly discovered that it was unconstitutional to execute a minor.[6] Yet, in Washington v. Glucksberg, the Court decided that the Constitution did not protect the right to assisted suicide.[7] So, women can abort pregnancies, minors cannot be executed, and we cannot take our own lives when terminally ill. What in the Constitution gave the Court the right to decide these questions? Nothing. And it has created a mess of constitutional jurisprudence where the political affiliations of the justices, not the Constitution, sometimes determine the outcomes.

Living constitutionalism also fails to constrain judicial decision-making. For example, consider living constitutionalism in the Eighth Amendment context. Phillip states that the Eighth Amendment should prohibit punishments that the Founders would consider cruel and unusual and punishments that are inconsistent with evolving standards of decency. How, exactly, can one possibly define what punishment violates evolving standards of decency? What does that even mean? Imagine judges sitting in their chambers and contemplating, “Hmmm…does executing a child rapist violate evolving standards of decency?” What will guide that determination? Subjective values. And why should a justice on the Supreme Court have the right to impose those values on an entire nation? Your guess is as good as mine.  Phillip provides one answer, stating, “one cannot determine what is "cruel" without engaging in a normative, moral analysis.” And that is the point – and the problem.

Likewise, in Kennedy v. Louisiana, the Court confronted the question of whether imposing the death penalty for raping a child under the age of twelve violated the Eighth Amendment. In a 5-4 decision, the Court answered in the affirmative, holding that executing a defendant for child rape was not consistent with “evolving standards of decency.”[8] Now, let’s assume that Robert, Phillip, and I had different views on whether imposing the death penalty for raping a child is consistent with “evolving standards of decency.”

Which view would be superior?

None of them.

After all, who am I to say that I know better than Robert or Phillip or have superior moral values such that I am more able to determine what violates evolving standards of decency?

Furthermore, I don’t think that citizens care what Robert, Phillip, or I think about this matter. I think they care about having the right to decide for themselves and have a voice in the democratic process. After all, this question, like the abortion question, depends largely on a person’s moral values. Thus, why should nine unelected and life-tenured judges decide this question, rather than the citizens of every state in this country? They shouldn’t. Living constitutionalism invites subjectivity, shows a lack of humility, and it enables morality to become the basis for judicial decision-making.

To be clear, I am pro-choice. I do not think that we should execute minors. I believe that laws against contraception are ridiculous. I support same-sex marriage. And I am neither conservative nor liberal. But, again, who cares what I think? Why should the Court be deciding these questions when the Constitution says nothing about them? As Chief Justice Roberts stated in Obergefell v. Hodges, “just who do we think we are?”[9]

Don’t be fooled. Advocates for living constitutionalism want the Court to reach outcomes that further their political agenda and thus reach what they believe are the “right” outcomes. But courts don’t exist to reach outcomes that you like, and if we base our view of the Court solely on whether the outcomes it reaches comport with our policy preferences – or what we perceive as the most just or moral outcome – then we are responsible for politicizing the Court and delegitimizing the rule of law.

Additionally, the process by which the Court makes decisions is critical to ensuring the Court’s legitimacy and ensuring that constitutional meaning does not change simply because its composition changes. Look no further than Dobbs v. Jackson Women’s Health, where the Court’s decision, although certainly defensible on originalist grounds, resulted, as a practical matter, from the fact that the Court’s composition had changed in a conservative direction.[10] So, for advocates of living constitutionalism, I am curious how they would feel about Amy Coney Barrett, Samuel Alito, and Clarence Thomas basing their decisions on subjective values. That is why living constitutionalism fails – it politicizes the judiciary. And it is why the text, and the Founders original understanding of what the text means, it vital to ensuring that judges do not venture into a sea of subjectivity (or any sea, for that matter), and that policy changes occur democratically.

Living constitutionalism is also elitist. You can often spot living constitutionalists from a mile away. It assumes that judges know better than the average citizen about what the ‘right’ outcome is in a particular case. That’s the point: living constitutionalism is about achieving an outcome that a small and elite group of justices prefer, and to reach those outcomes, they need to visit those invisible penumbras or create fictional doctrines like substantive due process. Judges don’t know better, and they don’t deserve that power.

At bottom, living constitutionalism assumes that, in the “heady days of the here and now,” the justices somehow know better, or are more enlightened, than their former colleagues, policymakers, or citizens.[11] It also assumes that, since contemporary society is more advanced and all-knowing in these heady days of the here and now, the results will always produce progressive, or more equitable, results. But who is to say (outside of obvious examples), what is progressive or regressive, and who is to say that living constitutionalism cannot result in what liberals would consider bad or regressive outcomes? If you doubt that, look no further than Dred Scott and Korematsu. And if you think that judges are more knowledgeable than they were a century ago, think again. Read Citizens United v. FEC, McCutcheon v. FEC, or Shelby County v. Holder, and you will see that the justices of today are no better or worse than the judges of yesterday.

Living constitutionalism also predicates constitutional meaning in substantial part on the purpose of a constitutional provision. But how can one know or define what the purpose of a provision is? And what if there are multiple or conflicting purposes? If so, how should these purposes be quantified, and which purpose should govern? Additionally, at which level of generality do you define a purpose because the broader the purpose, the less constrained the judge. For example, if a judge determines that the purpose of a constitutional provision is to protect “bodily autonomy,” or “liberty” then we are all in a lot of trouble. After all, what does “liberty” mean, and what principles exist to determine what “liberty” requires, and when restrictions on liberty violate the Constitution? For example, Justice Anthony Kennedy stated that “the Constitution promises liberty to all within its reach?”[12] What does that mean? It means nothing – and it gives judges the power to do anything they want in the name of “liberty.” As Justice Scalia stated, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”[13]

Indeed, consider the  “sweet mystery of life” passage, where the Court stated, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life?”[14] If that’s true, why is the Court defining liberty (and autonomy) for everyone in cases such as Roe, yet holding in Washington v. Glucksberg that the right to “define one’s own concept of existence” does not include a right to assisted suicide, and in Dobbs, reversing Roe?  Because the composition of the Court, not the Constitution, changed, and because its jurisprudence had strayed so far from the text that subjectivity and morality was the primary driving force underlying those decisions.

Living constitutionalism is nice when most of the justices align with your political views, but it’s not so nice when they do not. Think about Roe and Dobbs: in Roe, the Court discovered in the Constitution (or its “penumbras”) a right to terminate a pregnancy but then, nearly fifty years later in Dobbs, suddenly determined that the Constitution didn’t protect a right to abortion. What exactly changed in the “heady days of the here and now?” The fact that Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch were on the Court.

This is not, of course, to say that originalism is perfect, or that judges don’t use originalism to reach outcomes that coincide with their policy predilections. And to the extent that bad judges use originalism to further a conservative agenda – which some do – they are equally blameworthy. As stated above, the Court is not here to reach outcomes that you like – and no one who believes in democratic self-governance should believe that nine unelected and life-tenured justices know more than anyone else about the “mysteries of human life.” Again, as Chief Justice Roberts stated, “just who do we think we are?”[15]

Importantly, however, can’t the same criticism be made against originalism, namely, that it advances the political preferences of conservative justices? Of course. But that, as stated above, is a product of bad judging, not of originalism itself. And originalists often reach outcomes that do not coincide with their policy preferences. Consider, for example, Justice Scalia’s Fourth Amendment and Confrontation Clause jurisprudence. Is that ‘conservative’? Is it a conservative result to decide that the First Amendment protects the burning of the American flag, a decision in which Scalia joined the majority but stated in an interview that he would outlaw it if he were a legislator? No. In other words, Justice Scalia’s political views didn’t always or even often dictate his judicial philosophy. The same is true for Justice Gorsuch, who stated as follows:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[16]

Ultimately, if the process of decision-making results from creating invisible “penumbras,” to reach predetermined outcomes, then judging is no different from legislating. And that should trouble people of any political persuasion.

Indeed, for a “living constitutionalist” who lives, rents, or leases space in Griswold’s penumbras, believes in the fairy tale called “substantive due process,” and thinks that liberty encompasses the “right to define one’s own concept of existence ... and of the mystery of human life,” what constrains their decision-making?[17] Surely, it can’t be the text. Surely, it can’t be history and tradition. Certainly, it can’t be precedent, since stare decisis is akin to the toxic, on-again, off-again relationship that you pursue only when convenient. And most certainly, it cannot be “purpose,” as the purpose of a constitutional provision can be divined at any level of generality that allows you to do whatever you want, whenever you want, and for whatever reason you want.

Put simply, politics and policy preferences have no place in the Supreme Court. Living constitutionalism, however, puts those preferences at the forefront rather than in the rear-view mirror.

2.    Constitutional ambiguity, Clinton v. New York, and deference.

What should the Court do when it confronts constitutional ambiguity? How should originalists and living constitutionalists address this problem? Robert and Phillip provide no satisfactory answer. But it appears that they would not object to the Court intervening to decide questions where the Constitution’s text is ambiguous. I do object. In such instances, the Court should defer to the coordinate branches and the democratic process.

Many scholars will, of course, cite Marbury v. Madison, a case that did not do nearly as much as living constitutionalists might claim, to support the proposition that the Court has the right and duty to clarify constitutional ambiguity.[18] Marbury stands for the proposition that the judiciary has the power to say, “what the law is,” although it’s difficult to know what that statement exactly means. Regardless, does Marbury say that the Court has the power to say what the law should be, and even if it did, is there a legitimate justification for intervening in constitutional disputes when the text is ambiguous and reasonable people could arrive at different conclusions? No.

In such circumstances, the Court should do nothing. The Court’s decision in Clinton v. New York is among the best and rarely discussed examples of where the Court intervened when the Constitution was ambiguous, and when it should have deferred to the coordinate branches.[19] In Clinton, Congress passed the Line-Item Veto Act of 1996, which, among other things, gave the president the right to veto specific provisions in spending bills. The bill was passed by both houses of Congress and, after its constitutionality was challenged, the issue before the Court was whether the legislation violated the Presentment Clause.[20]  Now, the text of the Presentment Clause is sufficiently broad that reasonable persons could differ on whether it rendered the Act unconstitutional. Thus, why did the Court intervene and, in a 6-3 decision, invalidate legislation that would have likely reduced wasteful government spending? I have no idea.  The same was true in District of Columbia v. Heller, where the Court invalidated a law in the District of Columbia requiring, among other things, that certain guns be unloaded and disassembled in the home.[21] The Second Amendment did not clearly answer the question of whether the law was constitutional. As such, the Court – and its originalists – should have deferred to the District of Columbia’s lawmakers.

Put simply, if reasonable people can interpret a constitutional provision differently, why should nine unelected justices decide that question for an entire nation? Again, your guess is as good as mine.

Now, Phillip claims that this approach suggests that I support “a shockingly limited perception of the proper role of the judiciary,” that’s “entirely atextual” and that I am inventing “constitutional rules out of thin air.”  I do support a more limited judicial role, but I don’t find it shocking. Where does the text support Phillip’s approach? I respectfully suggest that, as the commentator below argues, living constitutionalism is entirely inconsistent with what the Founders expected:

America’s contemporary understanding of judicial power is inconsistent with the argument put forward by Hamilton and Madison in The Federalist. Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.[22]

Indeed, the view that courts should be the final or primary arbiters of constitutional meaning, particularly concerning moral questions, reflects the desire to use the Court to advance a political agenda:

Although the courts have always held a key place in our constitutional system, this very lofty conception of their authority has largely arisen over the past several decades. The rise of this view can be traced in part to the influence of modern liberalism, which has used the courts as instruments of social and political change and has accordingly had to bolster the authority of the judiciary.[23]

This passage, among many others, doesn’t support the argument that I am inventing constitutional rules out of thin air. If I wanted to do that, I could have entered Griswold’s penumbras with nothing but my moral compass to guide the way. Ultimately, since the outcomes for which living constitutionalists advocate “are not clearly required by the text of the Constitution—or, in the case of affirmative action, may even be in tension with it—the Left has had to argue for a more free-wheeling kind of judicial review.”[24] A “free-wheeling kind of judicial review” is precisely what Griswold and Roe embrace, and reflect what is antithetical to a country committed to democracy. As Professor Holloway explains:

The Federalist’s account of the judicial power is more consistent with the dignity of the American people as the country’s sovereign because it ensures that, although their will can be checked by courts defending the clear and settled meaning of the Constitution, it cannot be subordinated to the will of judges who make the Constitution mean what they want it to mean in order to secure outcomes that they regard as just.[25]

Importantly, when the Court gets involved in deciding disputes where the Constitution is ambiguous (and living constitutionalists and originalists are equally to blame) it often harms democratic participation and efforts to improve democratic governance. For example, in Citizens United v. FEC and McCutcheon v. FEC, the Court invalidated limits on independent expenditures by groups, including corporations, and individuals that Congress passed to, among other things, reduce the undue influence of money in elections.[26] Why? As the Court held in Austin v. Michigan Chamber of Commerce, the First Amendment could arguably be interpreted to allow such limitations.[27] At the very least, alternative interpretations of the First Amendment were possible. As such, the Court should have deferred to the coordinate branches.

Likewise, in National Federation of Independent Investors v. Sebelius, did the Affordable Care Act’s individual mandate (and its other provisions) violate the Commerce Clause?[28] Again, who knows. The Court should have never intervened, and Chief Justice Roberts likely upheld the mandate, at least in part, because he didn’t want the Court to be perceived as invalidating a statute that did not clearly violate a constitutional provision. The problem is that, in Shelby County v. Holder, Roberts wrote a majority opinion that overturned portions of the Voting Rights Act that the Senate had re-authorized by a 99-0 vote.[29] Why?  

What does all of this have to do with originalism? In other words, between originalism and living constitutionalism, which theory is better when the Court is faced with constitutional ambiguity?

Originalism.

Although originalism is not perfect and cannot answer every constitutional question, and although there are certainly bad judges who use originalism to reach specific outcomes, it requires judges to at least try to identify what the Founders intended the words to mean, and to base their decisions on a reasonable interpretation of the text. That reduces the influence of subjective values on judicial decision-making. If you disagree, look no further than Griswold’s penumbras, the “sweet mystery of life” passage, and “substantive” due process – all of which can be attributed to living constitutionalism – and which allow the Court to create unenumerated rights that have nothing to do with the Constitution.  

The less power the courts have, the better. Originalism lends support to the basic proposition that citizens should stop looking to the Court to impose policy on an entire nation. Change occurs through the legislative process.

Erwin Chemerinsky, who is among the most influential legal scholars in the country (and a wonderful person), recently wrote an outstanding book titled: Originalism: Worse than Nothing. The Dangerous Fallacy of Originalism.[30] For the reasons stated above, living constitutionalism, not originalism, is worse than nothing because, at bottom, living constitutionalism is nothing.[31]

After all, there is a reason why, as Justice Kagan stated, “we are all originalists.”[32]

 

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

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

[3] Id.

[4] 381 U.S. 479 (1965).

[5] 410 U.S. 113 (1973)

[6] 543 U.S. 551 (2005).

[7] 521 U.S. 702 (1997).

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

[9] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[10] 597 U.S.           , 2022 WL 2276808.

[11] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[12] Id.

[13] Id. (Scalia, J., dissenting).

[14] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[15] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

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

[17] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[18] 5 U.S. 137 (1803).

[19] 524 U.S. 417 (1998).

[20] Id.

[21] 554 U.S. 570 (2008).

[22] Carson Holloway, Against Judicial Supremacy: The Founders and the Limits on the Courts (January 25, 2019), available at: Against Judicial Supremacy: The Founders and the Limits on the Courts | The Heritage Foundation

[23] Id.

[24] Id.

[25] Id.

[26] 558 U.S. 310 (2010); 572 U.S. 185 (2014).

[27] 494 U.S. 652 (1990).

[28] 567 U.S. 519 (2012).

[29] 570 U.S. 529 (2013).

[30] Yale University Pres, 2022.

[31] See Adam Carrington, Erwin Chemerinsky’s Weak Critique of Originalism (September 18, 2022), available at: Erwin Chemerinsky’s Weak Critique of Originalism - The American Spectator | USA News and Politics.

[32] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com) (emphasis added).

Originalism's Frailties: A Reply to Professor Lamparello

Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation."  I'm skeptical. 

Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force.  The Framers created a system of separated powers, originalists reason.  Congress makes law; the judiciary merely interprets it.  Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic.  Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification.  After all, the law is the law, until lawfully changed under Article V. 

I happily concede these points.  (What serious constitutional lawyer would dare disagree with these basic principles of political science?)  But they're not the whole story.

In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions.  In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory.  In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support.  And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges. 

I.    Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers.  But on that score, there is serious reason for doubt.

 Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism?  Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.

    A.    The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.

In interpreting the Constitution, we must start with its text.[1]  To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators[2]--and when the text is clear, the inquiry ceases.  But the text also contains many provisions with broad, normative language.  Take, for example, the Constitution's guarantee of "equal protection of the laws,"[3] its prohibition of "cruel and unusual punishments,"[4] or its clause forbidding "unreasonable searches and seizures."[5]  It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees. 

Why would the Framers purposefully choose such ambiguous, value-based language?  First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates.  But more importantly, the Framers wanted their document to have staying power.  This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity[6]--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."[7] 

Let's pause here to nip a possible misapprehension in the bud.  Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time.  Not so.  The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity.  But, as mentioned, the Constitution frequently uses ambiguous, normative language.  While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.[8]  That's a key difference. 

Consider, for example, the Fourteenth Amendment's Equal Protection Clause.  Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens.[9]  Indeed, in 1868, no state had an operative women's suffrage law,[10] and coverture still held a grip on American gender relations.[11]  And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws."  While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed.  For that reason, the Supreme Court correctly held in Reed v. Reed[12] that the Equal Protection Clause applies to women.  Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens.  Our understanding of what the Equal Protection Clause tells us to look for, however, evolved. 

Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion?  I have my doubts.

Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard.  The Eighth Amendment forbids "cruel and unusual punishments."[13]  But one cannot determine what is "cruel" without engaging in a normative, moral analysis.[14]  For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society."[15]  But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”[16] 

The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency.  Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative. 

Undeniably, originalists make many good points.  But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language.  In doing so, originalists commit the same sin they swear to disavow.

    B.    The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.  

Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench.[17]  But here again, history renders that claim dubious. 

Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law.  Justice Scalia has famously called Blackstone a "thoroughgoing originalist."[18]  Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable.  And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law."[19]  Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[20]  That's hardly the stuff of modern-day originalism.  

Consider, also, Chief Justice Marshall.  In Cohens v. Virginia,[21] Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution.[22]  And in McCulloch v. Maryland,[23] Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."[24]  Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words."[25]  But the fact remains: Marshall was far from the rigid originalist many claim. 

Thomas Jefferson provides another example.  Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling.  But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant.  Jefferson wrote this to Samuel Kercheval in 1816:

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.[26]

All this is not to say that contrary evidence tending to support originalism can't be found.  It certainly can.  But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.

II.    Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.

Most of Professor Lamparello's essay presents garden-variety originalist arguments.  But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.

That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual.  The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt."  But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.[27]

For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air.  And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence. 

Professor Lamparello's theory is also impractical and ahistorical.  James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above.[28]  But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case?  After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue?  If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place?  Wouldn't it be easier to simply say nothing and let the states legislate as they see fit? 

III.    Originalism, while theoretically attractive, does a poor job of constraining judges.

Originalism hails itself as the best way to constrain judges.  Critics have long questioned that claim, too. 

To see why, consider District of Columbia v. Heller.[29]  In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment.  Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition.[30]  And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation.[31]  In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:

Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words.  The older the text, the more distant that interpretive community from our own.  At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . .  [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.[32]

This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate.  In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous.[33]  But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community.[34]  The "living political community" in Heller was the District of Columbia legislature.  But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition. 

And historical questions plagued more than just the Heller majority's holding.  In a dictum, the Court explained the contours of the right it recognized:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[35]

As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes.[36]  "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."[37] 

United States v. Eichman[38] provides another example of how originalism fails to constrain judges.  In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag.[39]  To Scalia's credit, it was a vote against his political predilections.  But it was certainly an odd ruling for an originalist.  The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"[40]--says nothing about non-verbal forms of protest.  And the eighteenth-century conception of the speech right was much narrower than our modern understanding.  According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious.[41]  Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.

Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences.  However, that reflects bad judging, not problems with originalism per se."  Is the truth so conveniently simple?  Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion?  Or is it possible that the problem lies deeper below the surface?

* * *

To be sure, no theory of constitutional interpretation is perfect.  But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do. 

---

[1] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).

[2] See U.S. Const. art. I, § 3, cl. 1.

[3] U.S. Const. amend. XIV, § 1.

[4] U.S. Const. amend. VIII.

[5] U.S. Const. amend. IV.

[6] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).

[7] U.S. Const. pmbl. (emphasis added).

[8] See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”). 

[9] See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).

[10] Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023). 

[11] Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”). 

[12] 404 U.S. 71 (1971).

[13] U.S. Const. amend. VIII.

[14] Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382). 

[15] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[16] Atkins v. Va., 536 U.S. 304, 311 (2002).

[17] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”). 

[18] Id.

[19] Id.

[20] Id.

[21] 19 U.S. 264 (1821).

[22] Id. at 383.

[23] 17 U.S. 316 (1819). 

[24] Id. at 421 (emphasis added).

[25] Sturges v. Crowninshield, 17 U.S. 122, 202 (1819). 

[26] Jefferson Quotes & Family Letters, https://tjrs.monticello.org/letter/1384 (last visited June 20, 2023). 

[27] The Federalist No. 78 (Alexander Hamilton).

[28] The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023). 

[29] 554 U.S. 570 (2008). 

[30] Posner, Incoherence.

[31] Id.

[32] Scalia & Garner, Reading Law at xxv.

[33] Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”). 

[34] Scalia & Garner, Reading Law at xxv.

[35] Heller, 554 U.S. at 626-27.

[36] See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[37] Id. at 200. 

[38] 496 U.S. 310 (1990). 

[39] Id. at 312.

[40] U.S. Const. amend. I.

[41] Posner, Incoherence.

Originalism, Not What It’s Cracked Up to Be

The quest for an interpretative construct that would produce principled decisions in construing the Constitution is an impossible dream, a chimera presuming that there lies a single best answer. The search for a singular approach that answers all questions seeks to implement what Justice Brandeis once described as the appropriate approach to the judicial enterprise: “we must be ever on our guard, lest we erect our prejudices into legal principles.”[1] Those engaged in the debate about various schools of interpretation latch onto one or another theory and often claim that it, above all others, reads the Constitution correctly. Yet, in the end, no theory can prevent us from imbuing our constitutional constructions with the biases and the limitations on knowledge that draw us to a particular result, just as history’s meaning is read differently throughout the ages.

Last week, a colleague on this blog claimed that originalism provided the best approach to interpreting the Constitution. In his post, Adam Lamparello argues that “originalism, although not perfect, is the best method of constitutional interpretation.” This dubious proposition operates under the assumption that the Framers shared a consistent view of what the Constitution meant, even when applied to situations they never could have imagined. And it erroneously presumes that the Framers’ collective views are knowable and, if consulted, leads to valid conclusions capable of avoiding either judicial adventurism or the reading of modern values into the Constitution. Experience teaches otherwise.

1. Originalism is no less outcome-oriented than any other theory of construction.

The “originalist” decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] like its building-block predecessor, District of Columbia v. Heller,[3] demonstrates that originalism does nothing more to prevent results-driven decision-making than the approach taken by the Queen of Hearts in Alice-in-Wonderland when she demands “Sentence first–verdict afterward.”[4] Bruen’s author, Justice Thomas, had long taken the position that judicial decisions had erroneously treated the Second Amendment as a “second-class right.”[5] When presented with an opportunity to make his view the law of the land, he wrote an opinion that carefully chose only favorable historical sources that supported his result, while rejecting the value of other available choices that would have confounded the decision. History, however, is messy and rarely as one-sided as Bruen makes it out to be.

In dissent, Justice Breyer called out the problem, noting, “[a]t best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue,’” producing only one favored result.[6]

Justice Scalia’s revisionist view of the Second Amendment, which he justified as originalist, set the stage for Bruen 14 years earlier in Heller when the Court held that the right to bear arms was an individual right unconnected to the introductory phrase, “a well regulated Militia.”[7] Conservative Fourth Circuit Judge J. Harvie Wilkinson criticized Heller for pressing a “political agenda in the courts.”[8] Most tellingly, Judge Wilkinson added, “While Heller can be hailed as a triumph of originalism, it can just as easily be seen as the opposite--an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other.”[9]

In fact, Justice Scalia, the leading advocate of originalism in his day, professed that he was a “faint-hearted originalist,” unwilling to go where originalism might take him if the result was absurd, so he would not uphold flogging as a punishment[10] or racial segregation.[11] In an interview with NPR, he jocularly explained his deviations from originalism as simply because he is “not a nut.”[12] As one of the grand apostles of originalism, Justice Scalia’s faintheartedness runs counter to the idea that originalism limits judicial discretion that relies on modern sensibilities.

2. The examples chosen fail to support the purpose behind originalism.

Professor Lamparello argues that originalism must cabin judicial choice because it has shown itself to cause conservative justices to reach “liberal” results. His examples do not support his thesis. He cites Texas v. Johnson,[13] which he notes had “Justice Scalia in the majority.” Johnson, though, was written by Justice Brennan and held that burning an American flag as a protest could not be punished for the crime of “desecration of a venerated object” consistently with the First Amendment’s protections. The decidedly non-originalist opinion was joined in full by Justice Scalia, who did not write separately to proffer an originalist rationale. The decision thus says nothing about originalism and everything about modern understandings about free speech.

Professor Lamparello’s second example is an odd choice, Justice Scalia’s much-criticized opinion in Employment Div. v. Smith,[14] a case that hardly represents a “liberal” result. The dissenters were the Court’s most liberal members, Justices Blackmun, Brennan, and Marshall. Smith reduced the constitutional protection afforded to religious practices in the context of members of the Native American Church and their use of peyote as a sacrament. Moreover, there is nothing originalist in Justice Scalia’s reasoning. It consists entirely of distinguishing modern precedents in a manner that Justice O’Connor found “dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”[15]

His final example, Bostock v. Clayton Cnty.,[16] also fails for multiple reasons. First, rather than be an example of constitutional construction, Bostock interpreted a statute, Title VII. Justice Scalia was not an originalist when it came to statutes. He refused to consider congressional debates or legislative history, relying instead on statutory text,[17] which is the same approach that Justice Gorsuch took in writing Bostock. An originalist would have cared what the drafters of Title VII meant; the majority in Bostock did not care. The dissenters cared, though. Justice Alito’s dissent accused the majority of legislating from the bench and inventing a meaning to the word “sex” to include sexual orientation” that was unimagined in 1964 when the law passed.[18] In colorful language, Justice Alito called the opinion a “pirate ship” that “sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[19] Thus, Bostock provides no support for Professor Lamparello’s thesis.

Nor does the absence of direct language on various issues mean that the Constitution has nothing to say about them. For example, the phrase “separation of powers” appears nowhere in the Constitution. Nor does the authority to establish a national bank. Yet, even in the founding period, both were understood to flow from constitutional principles.

3. There is a compelling case that the framers disfavored originalism.

Justice Robert Jackson put forth a standard critique of originalism when he wrote that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah.”[20] That is perhaps why Professor Ronald Dworkin said that “there is no such thing as the intention of the Framers waiting to be discovered, even in principle. There is only some such thing waiting to be invented.”[21]

Frequently, originalists seek the views of James Madison, as the most important of the framers. In a revealing joke about the Father of the Constitution’s hallowed status, Justice Alito chided Justice Scalia for questions seeking an originalist answer during oral argument in Brown v. Entertainment Merchants Ass’n.[22]  Rephrasing his colleague’s question, Justice Alito said, “what Justice Scalia is asking is what did James Madison think about video games. . . . Did he enjoy them?”[23]

If Madison’s views help define originalism, it is significant that he disfavored singular reliance on that approach. During the congressional debate over the Jay Treaty, members of Congress sought to resolve their differing views on a relevant constitutional question by turning to Madison, who was then serving in that body. He found the inquiry “a matter of some surprise.”[24] He told his colleagues that he could neither reconstruct his “own ideas at that period, [nor] . . . the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject.”[25] Where delegates had strong views, Madison said they were often in disagreement, but willing to accept language susceptible of different results when debates took place in the future. For that reason, he concluded by telling his colleagues that “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.”[26]

Given that Madison kept the best notes on the debates at the Constitutional Convention, which could have shed light on interpreting the Constitution in its earliest days, but withheld publication until after all the other framers had passed away,[27] and that Madison rejected any idea that the framers’ views should be deemed authoritative, a strong case can be made that the intent of the framers was that their views should not be controlling.

Instead, as Chief Justice Taft observed, those who wrote the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[28] They celebrated jurists like Lord Coke, who some four centuries after it was first promulgated, re-read Magna Carta as a source of rights that later appealed to the American colonies.[29] The framers understood the wisdom of his common-law approach to interpretation, which allowed them to stand on the shoulders of all those who came before them, enjoying and for posterity to stand on their own shoulders, thereby enjoying the benefits of a surfeit of views.[30] Inevitably, whatever lessons may be drawn from originalism, or any other interpretative methodology, we read the past, as we read precedents, through the lens of what we know and understand today. No canon of construction can overcome that built-in, even as we strive to achieve Brandeis’s admonition against reading our prejudices into legal principles.

 

[1] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

[2] 142 S. Ct. 2111 (2022).

[3] 554 U.S. 570 (2008).

[4] Lewis Carroll, Alice in Wonderland, ch. XII, https://www.gutenberg.org/files/11/11-h/11-h.htm#chap12.

[5] See Friedman v. City of Highland Park, 577 U.S. 1039, 136 S. Ct. 447, 450 (2015) (Mem.) (Thomas, J., dissenting from denial of cert.).

[6] Bruen, 142 S. Ct. at 2180 (Breyer, J., dissenting).

[7] U.S. Const. amend. II.

[8] J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009).

[9] Id. at 256.

[10] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).

[11] For a description of why Justice Scalia’s explanation of why Brown v. Board of Education was correctly decided on originalist grounds lacks the originalist rigor he often championed and, in reality, was a product of modern sensibilities, see Ronald Turner, A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education, 60 UCLA L. Rev. Discourse 170 (2014).

[12] Nina Totenberg, “Justice Scalia, the Great Dissenter, Opens Up,” (Apr. 28, 2008), https://www.npr.org/2008/04/28/89986017/justice-scalia-the-great-dissenter-opens-up.

[13] 491 U.S. 397 (1989).

[14] 494 U.S. 872 (1990).

[15] Id. at 891 (O’Connor, J., concurring).

[16] 140 S. Ct. 1731 (2020).

[17] Antonin Scalia, A Matter of Interpretation 29-30 (1997).

[18] Id. at 1755 (Alito, J., dissenting).

[19] Id. at 1755-56 (Alito, J., dissenting).

[20] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952).

[21] Ronald Dworkin, A Matter of Principle 39 (1985).

[22] 564 U.S. 768 (2011).

[23] Oral Argument Transcript, Brown v. Entertainment Merchants Ass’n, No. 08-1448 https://www.oyez.org/cases/2010/08-1448.

[24] 5 Annals of Cong. 775 (Apr. 6, 1796).

[25] Id.

[26] Id. at 776.

[27] James Madison, Notes of Debates in the Federal Convention of 1787 viii-ix ((1984 reprint).

[28] Ex Parte Grossman, 267 U.S. 87, 109 (1925).

[29] Coke was “widely recognized by the American colonists ‘as the greatest authority of his time on the laws of England.’” Payton v. New York, 445 U.S. 573, 594 (1980). See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring) (recognizing Coke’s unrivaled influence on American constitution writers).

[30] See Robert S. Peck, The Bill of Rights and the Politics of Interpretation 183-203.(1992).

The Supreme Court and Originalism

Justice Elena Kagan once stated, when referring to the justices on the Court, that “we are all originalists.”[1] She is right. Originalism, which has many variations, is the predominant interpretive theory in American constitutional law – and for good reason.

Below are a few reasons why originalism, although not perfect, is the best method of constitutional interpretation.

1.    Originalism focuses on process, not outcomes.

Originalism, when properly applied, ensures the integrity of the judicial decision-making process, and eschews a focus on whether the outcome of a decision is politically or personally desirable. This is not to say, of course, that judges should never consider outcomes, or the consequences of their rulings when deciding a case (and when the text reasonably supports such outcomes). It is to say, however, that judges should not base decisions on whether the outcome is consistent with their subjective values or policy predilections. As Justice Neil Gorsuch stated:

Of course, some 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.[2]

Furthermore, as Justice Gorsuch noted, even if “originalism does lead to a result you happen to dislike in this or that case,” that should not matter because “[t]he “judicial Power” of Article III of the Constitution isn’t a promise of all good things.”[3]

2.    Originalism leads to conservative and liberal results because the focus is primarily on the legitimacy of the decision-making process, not on         reaching outcomes that reflect the justices’ subjective values.

When originalism is properly applied, it leads to conservative and liberal results because the justices are focused on interpreting the text, not reaching outcomes that comport with their policy preferences. As Justice Gorsuch explained:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[4] 

Justice Gorsuch is exactly right. In Texas v. Johnson, for example, the Court, with Justice Scalia in the majority, held that the First Amendment protected the right to burn the American flag.[5] In Employment Division v. Smith, Justice Scalia held that generally applicable laws that only incidentally affect religious practices did not violate the Free Exercise Clause.[6] In Bostock v. Clayton County, Justice Gorsuch, an originalist, held that Title VII protects gay and transgendered employees from discrimination.[7]

And Justice Scalia's Fourth Amendment and Confrontation Clause jurisprudence shows that originalists reach outcomes that most living constitutionalists -- and liberals -- would support. Thus, originalism cannot be categorized as simply a tool for a conservative majority to implement a political agenda. 

3.    Originalism focuses on the Constitution’s words and what the Founders understood those words to mean, not on vague formulations about a         provision’s underlying purposes.

When interpreting a constitutional provision, originalists focus on the words – and what the Founders understood those words to mean – not the purposes of a constitutional provision.[8] And for good reason.

Determining the intent or purpose of a constitutional provision can be difficult, and even where it is ascertainable, it may not guide judges to an outcome that reflects a reasonable interpretation of the text. After all, a constitutional provision can have more than one purpose. How is a judge to quantify these purposes and decide which purpose should have priority over another? And at what level of generality – or specificity – do you define that purpose? Moreover, how should an alleged purpose be applied in a specific case, and given how broadly a purpose can be interpreted, how can it be applied without involving a judge’s subjective values? Put differently, a focus on a provision’s underlying purposes can unmoor judges from the Constitution’s text and, as Justice Scalia emphasized, leave them “at sea” where nothing but their personal values guide the way.[9] That is a prescription for judging of the most politicized and untenable kind.

Lest there be any doubt, recall the “sweet mystery  of life” passage where the majority in Planned Parenthood v. Casey stated, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[10] That passage is precisely what living constitutionalism, which states that the Constitution’s meaning changes over time, produces: a lot of nothing – except maybe those invisible penumbras that the Court, in Griswold v. Connecticut, invented out of thin air, and from which it created unenumerated constitutional rights.[11]

4.    Originalism constrains judges and promotes democratic governance.

Courts should protect vigorously the express and implied rights enunciated in the Constitution. For example, the Sixth Amendment right to counsel can certainly be interpreted to include the right to effective assistance of counsel. But courts should not invent rights out of thin air that have no grounding in a reasonable interpretation of the text and that remove important social and political issues from the democratic process. Originalism is the best way to prevent this type of judicial overreach.

Think about it: where in the Constitution is there a right to abortion?[12] Where in the Constitution does it say that a state cannot authorize the death penalty for child rape?[13] Where in the Fourteenth Amendment’s Due Process Clause, which protects citizens from being deprived of life, liberty, or property without due process of law, is there a substantive right to privacy (or any substantive rights whatsoever)?[14] Where in the Constitution does it say that a person under the age of eighteen cannot be sentenced to death for murder or sentenced to life imprisonment?[15] Where in the Constitution does it say that, when you provide personal information to third parties, you surrender all privacy rights in that information?[16] Where in the Constitution does it say that you do not have a right to assisted suicide, or suicide generally?[17] And what about the right to polygamy? Can that be found somewhere in the Constitution?

No.

And where are the rights that the Court recognized in Griswold and in Roe located in the Constitution?

Nowhere.

That’s why when the Court answers these questions, it is acting arbitrarily and basing its decisions on little more than the justices’ subjective values. Why, though, do the justices’ values or policy preferences matter more than every American citizen? And why should nine unelected and life-tenured justices be inventing rights for an entire nation? As Justice Scalia argued, “[i]f the constitution is not an ordinary law but rather this empty bottle into which each generation is going to pour the liquid that it desires, why should the bottle be filled by nine unelected judges?”[18] After all, when deciding whether a punishment is “cruel and unusual,” why should citizens trust nine unelected justices to determine what punishments are consistent with “evolving standards of decency that mark the progress of a maturing society?”[19] And what does that even mean?[20]

When judges have this kind of power, democracy is truly in danger. Of course, many will agree with the outcomes that the Court reached in these and other cases. But that is not the point. What should trouble citizens of every political persuasion is that the process by which these outcomes were reached had nothing to do with the Constitution. Instead, they originated from those invisible “penumbras” that Griswold invented and that any legitimate constitutional would find illegitimate. That, in a nutshell, is the problem with living constitutionalism. It allows judges to do whatever they want for whatever reason they want.

To be sure, decisions such as Roe, Kennedy, and Roper did not result from a principled interpretation of the Constitution. They happened because, at the time, the political affiliations of the justices were more liberal than conservative. And while many celebrated those decisions, they failed to consider that what the Court gives, it can take away whenever it wants. Indeed, the moment that you embrace living constitutionalism as a basis to create unenumerated rights, those rights are contingent on the whims of the justices and the justices’ respective political affiliations at a given moment in time. Lest there be any doubt, look no further than Dobbs v. Jackson Women’s Health, where the Court overturned Roe and other precedents, suddenly discovering that the Constitution does not protect a right to abortion.[21] The only reason the Court overturned Roe was because there were more conservative justices on the Court. It was not because the Court suddenly gained new insight into constitutional meaning. Rather, it demonstrated that the foundation for constitutional rights is more political than principled.

This reduces constitutional meaning to little more than what the justices think it means – based on their political affiliations and subjective values – and with no regard to what you think it should mean. It is difficult to imagine fundamental rights with a more flimsy and arbitrary foundation. Simply put, the creation of unenumerated rights should occur through the legislature, not the courts, and the people, not nine unelected and life-tenured justices, should identify the unenumerated rights to which all citizens in a particular state are entitled.

5.    When judges have unchecked power or rely on their subjective values to reach decisions, it often leads to unjust outcomes.

Living constitutionalism, which states that the meaning of the Constitution changes over time, can lead to terribly unjust outcomes. As Justice Gorsuch states:

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. A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution.[22]

Indeed, “as Korematsu and Dred Scott illustrate, 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.”[23] The Court’s decision in Dobbs is a testament to this fact.

Furthermore, consider that those who support living constitutionalism so conveniently happen – in nearly every case – to be liberal. Why is that? Because they want the Court to reach outcomes that they believe are morally correct, and they want to politicize and use the Court to make policies that properly belong to the legislative process. To be sure, when was the last time that you encountered a liberal professor who was an originalist?

6.    Originalism is best suited to deal with constitutional ambiguity.

A significant problem when interpreting the Constitution is the fact that some provisions in the Bill of Rights contained broad language that is subject to reasonably different interpretations. For example, the Eight Amendment prohibits “cruel and unusual” punishment, and the Fourth Amendment prevents law enforcement from conducting unreasonable searches and seizures.

In the face of this ambiguity, the ideal approach would be for the Court to defer to the coordinate branches when reasonable people could disagree regarding a law’s constitutionality. For example, in Clinton v. New York, the Constitution’s Presentment Clause did not clearly support the conclusion that the line-item veto was unconstitutional.[24] Thus, why did the Court invalidate a law that was designed to reduce wasteful government spending? And in Citizens United v. FEC, the First Amendment’s text certainly did not answer the question of whether Congress’s law limiting independent expenditures was permissible.[25] Thus, why did the Court, including several originalists, invalidate a law that sought to reduce undue influence in the political process? That’s a great question.

In short, the answer to ambiguity is not living constitutionalism. It is deference. And when the Court does decide cases where a provision is ambiguous, originalism is the best, although certainly not perfect, approach because, at the very least, originalists will attempt to discern what the Founders understood the words to mean rather than basing decisions on subjective values.

***

Originalism is not perfect, and in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se. And in the final analysis, originalism, when applied faithfully, limits judicial power and respects constitutional constraints on that power.

Ultimately, as Justice Scalia stated, “[y]ou either adopt originalism or essentially you say to your judges, ‘Come govern us.’”[26]  Put differently, the Constitution does not give courts the authority to “change meaning from age to age to comport with whatever the zeitgeist thinks appropriate.”[27] And when scholars base their opinion of the Court – or of interpretive methods – on whether they agree with a decision, they are politicizing the Court and contributing to the delegitimization of the judiciary.

 

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

[2] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution  (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[3] Id.

[4] Id.

[5] 491 U.S. 397 (1989)

[6] 494 U.S. 872 (1990)

[7] 590 U.S.             , 140 S. Ct. 1731 (2020). Additionally, originalism can and does support invalidating bans on interracial and same-sex marriage.

[8] See Pete Williams, Scalia: Judges Should Interpret Words, Not Intent (Aug. 22, 2012), available at:  Scalia: Judges should interpret words, not intent (nbcnews.com)

[9]  U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009), available at:

U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009) - YouTube

[10] 505 U.S. 833(1992).

[11] 381 U.S. 479 (1965).

[12]  See Roe v. Wade, 410 U.S. 113 (1973).

[13]  See Kennedy v. Louisiana, 554 U.S. 407 (2008).

[14] See Griswold v. Connecticut, 381 U.S. 479 (1965); U.S. Const., Amend XIV.

[15] See Roper v. Simmons, 543 U.S. 551 (2005).

[16] Smith v. Maryland, 442 U.S. 735 (1979).

[17] Washington v. Glucksberg, 521 U.S. 702 (1997).

[18] Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com

[19]  Trop v. Dulles, 356 U.S. 86 (1958)

[20] This is not to say that the Court’s decisions in  Griswold, Roe, and Roper did not reach good outcomes. The problem is that it took making bad constitutional law to reach those outcomes.

[21] 597 U.S.            , 2022 WL 2276808 (June 24, 2022).

[22] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution  (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[23]  Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution  (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[24] 524 U.S. 417 (1998).

[25] 558 U.S. 310 (2010).

[26] Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com

[27] Id.

Imagining the Appeal if the Dominion v. Fox News Case Had Gone to Trial

The highly anticipated trial of Dominion Voting System’s defamation lawsuit against Fox News evaporated on the cusp of trial with a settlement. As a result, we can only speculate about what an appeal might have looked like – but that does not prevent us from engaging in the thought experiment of what might have occurred. Both sides were prepared for an appeal regardless of the trial’s outcome. And the First Amendment implications of the case could well have garnered interest in the U.S. Supreme Court.

At trial, Dominion had two overriding burdens. It had to prove that Fox’s reporting on the voting machine manufacturer was not true and that, in doing so, Fox engaged in actual malice because it knew the claims were false or showed a reckless disregard for the truth. On the first issue, the truth or falsity of the on-air assertions by Fox, the judge had granted summary judgment in Dominion’s favor – Fox could not overcome the evidence that its on-air claims were false. The trial, then, would likely have focused on whether the actual malice standard was met and the resulting damages.

Although a host of issues may have arisen from the conduct of the trial or objections and rulings made during the course of trial, it is not hard to imagine that, if Fox had lost, some of the issues it might have appealed.

First, was the trial court’s decision on summary judgment supported by uncontroverted evidence? A court may only grant summary judgment if no material issues of fact exist, thereby entitling the movant to judgment as a matter of law.[1] The court reviews factual assertions in the light most favorable to the party opposing summary judgment, and any inferences drawn must operate to the benefit of that nonmovant.[2] Moreover, using a burden-shifting standard, the nonmoving party’s evidentiary obligation is triggered only if the moving party’s evidence appears to establish each element of the case.[3] The U.S. Supreme Court has described the burden the nonmovant bears to be to create more than “some metaphysical doubt as to the material facts.”[4]

My purpose in reviewing the applicable standards is not to comb through the evidence proffered in the case to support summary judgment, but to show that the standard, at face value, disfavors summary judgment as long as an operative fact is in real dispute. Even so, an appellate court examines a grant of summary judgment de novo, because the absence of contradictory facts renders the issue a question of law.[5]

Second, one can imagine an appeal focusing on whether the actual-malice standard, deemed protective of the First Amendment rights of the media, was met. Under New York Times v. Sullivan[6] and Curtis Pub. Co. v. Butts,[7] both public officials and public figures seeking to recover compensation for a defamatory falsehood must show that the defamation was the product of actual malice. That standard, as articulated in Butts, tellingly states that it requires “a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.”[8] The reports on the evidence amply show that Fox’s on-air personalities and owner Rupert Murdoch understood that the claims of election fraud that were common currency on the network were laughably false and suggest that Dominion had the goods to overcome the actual-malice hurdle.

On the other hand, observers have no idea whether Fox had evidence that demonstrated sufficient doubt from reliable quarters that would have chipped away at any finding of malice. Even so, taking a different angle to an appeal, it is fun to imagine counsel for Fox attempting to contrive an argument that the modern standard for investigation and reporting by today’s “responsible publishers” is greatly diminished from when Butts was rendered so that the standard was satisfied in this instance. That Fox itself is heavily responsible for that lowering of standards would not seem to enter into that calculation.

Finally, the most interesting potential issue on appeal could be whether the New York Times test is still valid as a constitutional command. Concurring in a 2019 order that denied certiorari in a defamation case brought by an alleged victim of sexual assault against actor and comedian Bill Cosby, Justice Clarence Thomas solicited an appropriate case to review New York Times v. Sullivan and its progeny, asserting that the standards it set were “policy-driven decisions masquerading as constitutional law” and that providing extra protection for public officials and figures lacked support in the First Amendment’s original understandings.[9] Justice Thomas reiterated this stance in 2021 and 2022, both times dissenting from the denial of cert and suggesting that each petition provided a good vehicle to reevaluate the interplay of the First Amendment and libel law.[10]

In the 2021 case, Justice Thomas was joined in this sentiment, by Justice Neil Gorsuch, who wrote separately. Justice Gorsuch agreed that the First Amendment involved no special solicitude for libel that should affect its treatment in court, but he also suggested that circumstances had changed. He noted that in today’s world, everyone can become a publisher and a public figure in ways unimaginable in 1964.[11] He speculated that the New York Times majority may have believed that the rule they announced “would apply only to a small number of prominent governmental officials whose names were always in the news and whose actions involved the administration of public affairs.”[12] Now, he said, it applies much more widely in a world where expediency is valued over “investigation, fact-checking, or editing.”[13]

Justice Gorsuch’s speculation seems about the New York Times majority’s presumptions seems off the mark. In the original case, plaintiff L.B. Sullivan, a Montgomery, Alabama city commissioner with supervisory authority over the police department sued the Times over its publication of a one-page newspaper advertisement by place by four black clergymen decrying the treatment of nonviolent civil rights demonstrators by “Southern violators.” Though he was not named as one the Southern violators, Sullivan claimed the advertisement defamed him. As required by Alabama law, he wrote the Times and demanded a retraction before suing. Rather than enter a retraction, the Times wrote back, “‘we . . . are somewhat puzzled as to how you think the statements in any way reflect on you.’’’[14] It seems highly unlikely that the majority imagined they were covering a “small number of prominent government officials whose names were always in the news.”

Even so, more potential tests of New York Times are likely coming. A Dominion loss would have opened the door to a challenge in this instance against a conservative media institution, but the idea of a challenge has become a cause for a number of conservative politicians. The markers laid down by members of the Supreme Court remain invitations in an appropriate case, making it likely that a case is coming, even if it will never be Dominion’s lawsuit against Fox.

 

[1] Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979). Because the trial was to take place in a Delaware state court, Delaware precedent is cited here.

[2] Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992)

[3] Moore, supra note 1, 405 A.2d at 681.

[4] Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

[5] Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991).

[6] 376 U.S. 254, 279-80 (1964).

[7] 388 U.S. 130, 155 (1967).

[8] Id. at 155.

[9] McKee v. Cosby, 139 S. Ct. 675, 676. 678 (2019) (Thomas, J., concurring in denial of cert.).

[10] Coral Ridge Ministries Media, Inc. v. S. Poverty L. Ctr., 142 S. Ct. 2453, 2455 (2022) (Thomas, J., dissenting from denial of cert.); Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from denial of cert.).

[11] Id. at 2428-29 (Gorsuch, J., dissenting from denial of cert.).

[12] Id. at 2428.

[13] Id.

[14] New York Times, 376 U.S. at 261.

Comments Against Angel Reese Call Us to Check for Bias in Our Writing

As I’ve mentioned before, I was lucky enough to teach a seminar on bias in legal analysis and writing this semester.  Much of the class focused on implicit bias and the way we can use words as lawyers to help find and remove bias.  Occasionally, we encountered bias in court opinions, legal scholarship, and the like that was almost express.  While easier to spot and remove than subtle implicit bias, overt bias also reminds us, as lawyers and legal writers, to scrutinize our own writing. 

One example of clear bias in the media that could help us as legal writers came at the end of the NCAA basketball tournament this year.  Students and I were struck by social media and sportscaster disparate discussion of a strong, powerful player for the University of Iowa and a strong, powerful player for Louisiana State University.  These women, Angel Reese of LSU and Caitlin Clark of Iowa, are incredible competitors who each led their teams to the NCAA championship game.  Along the way to the final game against each other, which LSU won, both played beautifully and both sported almost identical ponytails.  Both also made the same “you can’t see me” taunt to opponents during the tournament by waving their outstretched hands in front of their faces, to show they were too quick for opponents to see and stop.  In response to these taunts, Clark faced praise, including from ESPN and pro wrestler John Cena, who invented the “you can’t see me” taunt, but Reese faced profanities and statements she was “classless.”   

The difference:  Clark is white, while Reese is Black.  Our class had a robust discussion of what the different language used to describe these similar athletes using identical taunts in the same tournament meant to us as legal writers, and the students inspired me to share this incident here.

As Mike Freeman of USA Today explained, “Clark is a skilled trash talker and used the John Cena "you can't see me" taunt multiple times throughout the tournament.” Mike Freeman, Reaction to Angel Reese taunting Caitlin Clark shows the double standard for Black Athletes,  https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/ (Apr. 3, 2023).  Freeman continued, “[i]n the closing moment of the championship game, Reese did the same taunt and also pointed to her hand, signaling she was getting a championship ring.”  Id.   

Aisha Sultan of the St. Louis Post-Dispatch noted Clark often taunted opponents.  Sultan explained:  the “you can’t see me,” gesture “had been used by Clark toward a Louisville opponent in the Elite Eight” round of the NCAA tournament, and “ESPN even produced a segment hailing Clark as the “Queen of Clapbacks” featuring these moments of taunting by her.” Aisha Sultan, Backlash to Angel Reese raises question: Which athletes get called 'classless'?, https://www.stltoday.com/lifestyles/parenting/aisha-sultan/sultan-backlash-to-angel-reese-raises-question-which-athletes-get-called-classless/article_fa75a30d-67d7-56c1-aac6-ea09c00b638f.html (Apr. 3, 2023).  “The reaction to Reese [using the taunt in the final game], however, included Dave Portnoy, founder of the site Barstool Sports, tweeting that she was a ‘classless piece of (expletive)’ and Keith Olbermann calling her an ‘(expletive) idiot’ on Twitter.”  Id.

Freeman honed in on the use of language here, and his notes are especially helpful to appellate writers as we edit our work.  For example, he described what he called stereotypes of sports as:

When Black players are aggressive, and talk trash, they are thugs and animals.

When white players are aggressive, and talk trash, they are passionate and fiery.

This stereotype goes back decades. Larry Bird was the greatest trash talker of all time but was celebrated for his passion. Tom Brady screamed at teammates and coaches and was viewed as scrappy. John Thompson's Georgetown Hoyas, who played defense with spirit and ferocity, were called thugs. Fight[ing] in hockey is seen as tradition. Fight[ing] in NASCAR is seen as cool and spirited. Fights in NBA games lead to white commentators asking: "Where are the fathers?"

https://www.usatoday.com/story/sports/columnist/mike-freeman/2023/04/03/angel-reeses-taunt-iowas-caitlin-clark-shows-double-standard/11591498002/

What can we learn from this incident to catch less obvious bias in our own writing?  The long answer: my class spent fourteen weeks looking at scholarship on writing and bias to help us start to answer this question, and removing bias takes work and careful attention.  One shorter answer:  many of the rules of good writing, like using active voice and direct sentence structure, help us avoid bias.  Being attentive to our own underlying privilege and bias and asking a trusted colleague to proofread helps too.  There are many thoughtful ideas on addressing bias in our legal publications.  For just a few, consider recent articles, like I Think He’s Nice But He Might Be Mad About Something, 25 U.C. Davis Soc. J. L. Rev. 73, 99 (2021), and older scholarship, like Prof. Lucinda Finley’s Breaking Women’s Silence in Law:  The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886, 886-97, 909 (1989).

I give this example of overt bias in sports discussions not as a suggestion appellate lawyers often show such bias, but as a reminder we all must be as thoughtful as possible in the words we choose.  My students helped me see we should all take the time to edit for bias when we check for clarity and punctuation, and we should mentor new appellate writers to do the same.

Why Paul Clement Is So Good

Attorney Paul Clement is among the best attorneys – and oral advocates – in the United States. And for good reason. His oral advocacy skills are second to none. In fact, listening to even one of Paul Clement’s arguments before the United States Supreme Court provides law students and young lawyers with invaluable tips on what it takes to be an outstanding advocate. Below are a few reasons why Paul Clement is among the country’s best lawyers.

1.    Confidence

As Woody Allen said, 90% of life is just showing up. And when you do show up, it’s critical to have confidence. Paul Clement has the confidence (or ‘swagger’) that reflects self-assuredness and conviction in his arguments. Put simply, he owns the courtroom and commands respect.

2.    Preparation

No attorney can outwork Paul Clement. He is so prepared that he never uses notes and can cite the page and line number of, for example, a deposition. In short, Clement knows every detail of his case, including the law that governs its disposition.

3.    Conversational tone

Many lawyers who argue before the United Supreme Court will understandably be nervous and, perhaps, overly formalistic when making their arguments.

Not Paul Clement. When Clement argues before the Supreme Court, he has a conversation with the Court, much like you would have a conversation with one of your friends. As Professor Richard Lazarus of Harvard Law School states, “[h]e’s very smooth. He’s engaging. Formal but not too much so. Extremely credible and straight with the justices. You don’t have the sense that anyone is trying to sell you anything.”[1]

It almost seems that Clement enjoys engaging with the justices, which reflects his confidence and personability.

4.    Integrity and credibility

Paul Clement has integrity. He never misrepresents the law or the facts. He never acts in an arrogant, disrespectful, or dismissive manner. Rather, he presents the law and facts honestly and thoroughly, and explains with persuasiveness why he should win. Doing so reflects his integrity and enhances his credibility with the Court.

As one Supreme Court advocate stated, “[h]e just doesn’t do things that upset people … [t]here’s no edge to him.”[2]

5.    Persuasiveness

Paul Clement is extremely persuasive. Whether it is, for example, his tone, word choice, ability to distinguish precedent, skill at addressing unfavorable facts and crafting a compelling narrative, or using non-verbal techniques, Paul Clement is among the most talented at telling a persuasive story that maximizes his likelihood of success.

6.    Answering judges’ questions directly and effectively

One of the most important aspects of effective appellate advocacy is answering a judge’s questions directly and persuasively, and adjusting your argument based on the concerns that a judge expresses about the merits of your case. Paul Clement is among the best, if not the best, at doing so.  An excellent example is Clement’s argument in Kennedy v. Bremerton School District (21-418_3dq3.pdf (supremecourt.gov)).

Ultimately, Paul Clement’s oral advocacy skills exemplify what it means to be a great lawyer and advocate. Both law students and young law lawyers would benefit from listening to his oral arguments. 

 

[1] Natalie Singer, ‘Defending Unpopular Positions is What Lawyers Do,’ says Paul Clement, ’92 (January 31, 2012), available at: 'Defending unpopular positions is what lawyers do' says Paul Clement '92 - Harvard Law School | Harvard Law School

[2] Jason Zengerle, The Paul Clement Court (March 16, 2012), available at: Why Paul Clement Is the GOP’s Great Hope for This Supreme Court Season -- New York Magazine - Nymag

When an Ethics Code is Not Enough

Revelations that Justice Clarence Thomas and his wife received more than two decades of luxury trips and gifts from a billionaire friend, who has donated significant amounts to conservative political causes, have raised the volume on calls for a set of ethics rules for Supreme Court justices. The largesse that took place over two decades to the Thomases largely went unreported on financial disclosure forms the justice filed because he understood that the rules exempted personal hospitality. While others have interpreted the rules to require disclosure, new rules that went into effect in March have removed any ambiguity – and Justice Thomas has indicated that he would report the trips and gifts in the future.

The new information, the product of a ProPublica investigative report, piles onto other developments that have raised the temperature on the absence of a binding ethics code for Supreme Court justices. These include allegations that Justice Samuel Alito or his wife may have leaked the result in Burwell v. Hobby Lobby Stores, Inc. in 2014 several weeks before it was announced, the leak of the draft opinion in Dobbs v. Jackson Women’s Health Org. last year, and Justice Thomas’s refusal to recuse himself from cases arising from the 2020 presidential election even as his wife was involved in activities to overturn its result.

Federal law already mandates that “[a]ny justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.”[1] That seemingly comprehensive standard also has a largely amorphous quality to it. Still, it is supplemented by a number of specific examples of circumstances that warrant recusal: instances where the justice harbors a “personal bias or prejudice concerning a party” or “personal knowledge of disputed evidentiary facts,” where the justice previously served as a lawyer or practiced with one concerning the matter or was a material witness in the case; where the justice had participated, even to the point of expressing an opinion, in the matter as a government employee; where the justice, a spouse, or child living in the household has a financial or other interest that could be “substantially affected” by the outcome of the of the proceeding.[2]

New rules promulgated by the Judicial Conference and that went into effect in mid-March require federal judges, including Supreme Court justices, to report all travel by private jet and paid-for stays at commercial properties, such as hotels, resorts or hunting lodges.

Still, some members of Congress have pledged to investigate the facts behind the latest revelations and consider imposing an ethics code on the Supreme Court. Senator Sheldon Whitehouse (D-RI) has noted that, out of all federal officials, only Supreme Court justices lack a binding ethics code.

In the absence of a mandatory code, and perhaps to stave off a conflict between branches of government, Chief Justice Roberts has said that the justices voluntarily consult the law applicable to other federal judges in making ethical determinations. From time to time, justices have suggested that the Court might adopt a code of its own, yet mounting pressure has not resulted in a Supreme Court-specific set of rules.

The current financial disclosure requirements applicable to federal judges are subject to review and potential punishment by the chief judge of the respective circuits yet does imbue the Chief Justice with the same authority over the justices. Chief Justice William H. Rehnquist considered that type of discipline or oversight outside of his authority, noticing that recusal was a question that that “each justice must decide” individually under settled practices.[3] In fact, it is often said that the chief justice is merely the first among equals. The chief justice’s dilemma recalls an incident involving Justice James McReynolds, a Woodrow Wilson appointee remembered for racist, misogynistic, and  anti-Jewish outbursts and actions. To assure Justice McReynolds’s on-time arrival on the bench for Court, Chief Justice Charles Evans Hughes sent a messenger with a polite request. The acerbic response from the associate justice: “Tell the Chief Justice that I do not work for him.”

And that highlights the dilemma that any Supreme Court ethics code faces: how can it be enforced? Transparency through disclosure has its benefits, but lifetime tenure provides a significant buffer to any condemnatory reaction from the public, even when the public gives more than fleeting attention to the transgression. However, flaunting disclosure rules or refusing to recuse under the guise of necessity can be harmful to the fair administration of justice. In Caperton v. A. T. Massey Coal Co.,[4] the Court recognized that there are situations, such as one where the financial interest of a political supporter is at stake, that creates a danger of actual bias is so great that the Constitution itself requires recusal.[5]

In Caperton, the failure to recuse required the West Virginia Supreme Court of Appeals to rehear the dispute without the justice who should have recused. If the same situation arose in the U.S. Supreme Court, it would undoubtedly be messier. It would require a decision of the other justices that found a constitutional violation in a colleague’s decision not to recuse. Unless the consequent due-process violation was utterly crystalline, it seems unlikely that the justices would act. That leaves but one other enforcement mechanism: impeachment. And in today’s political environment, the possibility seems theoretical at best. That leaves a new ethics code as largely hortatory, which would still have some value but allow a rogue justice to resist compliance.

 

[1] 28 U.S.C. § 455(a).

[2] Id. at § 455(b).

[3] William Rehnquist, “Let Individual Justice Make Call on Recusal,” Atlanta J.-Const., Jan. 29, 2004, at 15A.

[4] 556 U.S. 868 (2009).

[5] In the new controversy, Justice Thomas’s benefactor, real estate developer Harlan Crow, denied that he had any cases before the Supreme Court or discussed or attempted to influence any case where the justice might have been involved. Still, reports indicate that Crow provided financial support to at least two groups that filed amicus briefs whose views were, unsurprisingly, consistent with the way Justice Thomas voted.