Appellate Advocacy Blog

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

Saturday, May 21, 2022

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part Two

Last month, I noted two April 8, 2022 federal Court of Appeal decisions on attorney sanctions where the courts reminded us claims of experience are no excuse for improper behavior.  I focused on the Fifth Circuit’s reminder:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  This month, I’ll discuss the Seventh Circuit’s order upholding $17,000 of sanctions against a “seasoned litigator” who balked at being required to complete “demeaning” CLE classes.  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022)

Like the Fifth Circuit, the Seventh Circuit rejected an appeal of a sanctions order despite counsel’s claims of competence and experience.  Bovinett (7th Cir. Apr. 8 2022); see Debra Cassens Weiss, “Seasoned Litigator” Fails to Persuade 7th Circuit that Sanction Was Demeaning and Too Harsh, ABA Journal (Apr. 14, 2022).  In a Northern District of Illinois case involving use of an actor’s photo by advertisers, the district court initially dismissed many claims against the out-of-state advertisers for lack of personal jurisdiction.  Bovinett at 2.  Attorney Mark Barinholtz, representing the actor, then asserted the defendants had several contacts with Chicago, and the court “allowed the parties to take limited discovery about personal jurisdiction.”  Id. at 2-3.  The court “soon granted [a defendant’s] motion to compel discovery because [the actor’s] responses were vague and evasive.”  Id. at 3.  For example, Barinholtz “answered every request for admission by stating [the actor] was ‘not in possession of sufficient knowledge or information to admit or deny.’”  Id.  After the court entered an order compelling discovery, the actor, through Barinholtz, replied “only that [the actor] lacked ‘direct, in person knowledge’ of the subjects.“  Id.  In response, the court dismissed much of the complaint and eventually granted the defendants’ motions for sanctions.  Id

The district court found several grounds for sanctions, noting “Barinholtz appeared to have made false assertions to establish personal jurisdiction, [and e]ven if he did not do so in bad faith, . . .  Barinholtz inexcusably failed to investigate the jurisdictional facts.”  Id.  The court  “ordered Barinholtz to pay about $17,000 (much less than the defendants’ [$661,000] request) to compensate the defendants for time spent on the motions to compel and for sanctions.”  Id.  As the Seventh Circuit explained, the district court “also ordered Barinholtz to attend 40 hours of continuing legal education: half ‘on federal civil procedure, including at least one course related to personal jurisdiction,’ and half on “professional conduct, . . . such as those offered in the Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys.’”  Id

In response, Barinholtz moved for what he styled an extension of time either “to file notice of appeal and/or to request other post-order relief,” and the district court granted the motion in part, extending the time to appeal until October 13, 2020.  Id. at 3-4.  Barinholtz did not immediately file a notice of appeal, but filed an October 13, 2020 “motion to reconsider in which he focused on the merits of the lawsuit and his already-raised objections to sanctions.”  Id. at 4.   He again argued that the court had personal jurisdiction and claimed “Rules 11 and 37 did not permit sanctions in this context, [plus] sanctions were ‘unfair’ because the defendants and Bovinett had teamed up to get Barinholtz to pay costs and fees.”  Id

Notably, Barinholtz “also insisted that the defendants deserved sanctions,” based on the alleged “teaming up” against him, “and that requiring him, a seasoned litigator, to attend legal-education courses [was] demeaning.”  Id.  As the Seventh Circuit explained, he “requested a reduced monetary sanction (or none at all) and fewer hours of continuing education.”  Id.  The district court denied the motion to reconsider, finding “Barinholtz failed to identify any legal or factual error in the sanctions ruling and instead repeated previously rejected arguments.”  Id.  The court declined to address what it called “these ‘disheartening’ arguments” again, “and repeated that sanctions were warranted for his ‘egregious’ conduct.”  Id.  Barinholtz filed a notice of appeal within thirty days of the reconsideration order, but after October 13, 2020.

The Seventh Circuit opened its order by explaining Barinholtz “incurred sanctions for repeatedly asserting baseless claims and disregarding a court order. He moved, unsuccessfully, for reconsideration and then filed a notice of appeal . . . timely only with respect to the denial of the motion to reconsider.”  Id. at 1-2.  According to the court:  “[b]ecause [Barinholtz] timely sought and received an extension of time, his appeal was due October 13. But Barinholtz missed this deadline. And his motion to reconsider had no effect on his time to appeal sanctions.  Id. Accordingly, the notice of appeal filed after October 13 was only timely for the denial of the motion for reconsideration.  Id.

The court then reviewed “whether the judge unreasonably denied Barinholtz’s motion to reconsider sanctioning him,” finding no abuse of discretion.  Id. at 5-6.  The Seventh Circuit stressed “Barinholtz lacked a good reason for vacating the sanctions,” “did not cogently explain why his conduct was not sanctionable,” “did not demonstrate any mistake of law or fact in the sanctions order,” and also “provided no excuse or explanation—or apology—for his actions.”  Id. at 5.  For example, “he did not argue that he complied with the discovery order, that he had a strategic reason for repleading baseless claims (such as preserving them), or that it was reasonable to press claims against [a defendant] after it showed that it had no ties to Illinois.”  Id

According to the court, the trial “judge also did not err in rejecting Barinholtz’s argument that [the actor] ‘flipped’ to the defendants’ side and is now in cahoots with them to get Barinholtz to pay both sides’ costs” because the “parties’ settlement agreement states that they must bear their own costs and fees.”  Id. at 6.  Instead, the “amount of the sanction is directly tied to the expenses that the defendants incurred in moving to compel discovery and moving for sanctions: motions necessitated by Barinholtz’s conduct.”  Id.

Finally, Barinholtz contended the court should have imposed “fewer than 40 hours of continuing legal education” based on his “decades of experience.”  Id.  However, the court reasoned “the requirement directly addresses the sanctionable conduct:  Barinholtz raised baseless allegations about [defendant’s Chicago] involvement, pursued frivolous claims, and dodged valid discovery requests; it is reasonable that he be ordered to refresh his knowledge in civil procedure and professionalism despite his proficiency in certain areas.”  Id.

Barinholtz told the ABA Journal in an email that he is reviewing “the procedural and merits-based aspects of the ruling and its impact.”  Cassens Weiss, “Seasoned Litigator.”  He explained he will probably seek rehearing and stated:  “In light of my many years of dedicated practice in the federal courts, 40 hours of vaguely characterized CLE not only appears to be unprecedented—but in any event, is far too harsh and unwarranted in these circumstances.”  Id.

I will keep you posted on any updates in this matter, and in the Fifth Circuit’s ruling in Scott.  In the meantime, both cases give us all excellent reminders about competent representation and  sanctions.

May 21, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession | Permalink | Comments (0)

Monday, May 16, 2022

Do as I do....

Not too long ago I was driving in the car with both junior associates. I was talking to my spouse on the phone (safely via hands free), and in the course of the conversation I used the "s" word--"stupid." An adorable little 4 year old voice called out from the back seat, "Mommy, we don't say 'stupid.'" To which I said, "you are right, I am so sorry." 

This little episode, which has sadly happened more than once, got me thinking about the advice that judges give attorneys. Judges are often very quick to give excellent advice to attorneys, but then fail to follow their own advice in writing opinions. Now, I know that opinions are different from briefs, but despite these differences, I think that there are some pieces of their own advice that judges should follow.

Advice #1: Be Brief

Just last week I read a story that included advice from Chief Justice John Roberts on keeping briefs brief. When I teach appellate advocacy, I tell my students that the one thing that ALL judges agree on is briefs are too long. But what about judicial opinions? Oh my! I decided to do an informal survey of the most recent opinions posted on appellate court websites. Here is what I have for published or precedential opinions:

While this endeavor is highly unscientific (I am sure the empiricists are cringing), my purpose was to get just a random snapshot. This snapshot produced an average of 31.7 pages. Half of the opinions were over 20 pages. Another snapshot would have different results--easily higher, perhaps lower.

What is the problem with long opinions? Well, Luke Burton, a career clerk on the Eighth Circuit has discussed them here. The problems he lists include increased (1) litigation costs, (2) misinterpretation of opinions, and (3) difficulty for the parties in understanding the decision. While all of these are real problems, I think that two and three should especially catch the attention of judges, which leads me to my second piece of advice that isn't always followed.

Advice #2: Write for your audience.

Judges like to remind brief writers to write for judges and their clerks, not the client and not the partner. Likewise, judges need to remember their audience--the parties. Sure, judicial opinions, especially at the highest court in a jurisdiction, can introduce rules that inform and impact others, but at its core, a judicial opinion seeks to resolve a dispute between two (or more) parties. And while these parties may be sophisticated, they might not be lawyers. Therefore, judicial opinions should be written in a clear, concise manner that is largely devoid of legalese. 

Have you ever visited a doctor and had that person explain your ailment in medical terms that you could not understand? I have, and it is really frustrating. Doctors and lawyers deal with some of the most private, trying, and important matters in a person's life. Just like people should be able to understand their diagnosis from a doctor, parties should be able to read judicial decisions and understand the outcome and reasoning.

Advice #3: Don't hide the ball.

Based off of advice in Winning on Appeal, I always tell my students that their appellate briefs should not be like the latest show they are binge watching on Netflix.  It isn't a murder mystery where we wonder whodunnit or a Regency romance where we ponder who the protagonist will marry. In a brief the error being appealed, the proper legal standard, and the desired result should be perfectly clear and upfront in the brief. Some judges encourage advocates to use a well-written introduction to present these issues. 

Likewise, judges can and should use a well-written introduction to set out the key issues being resolved and the outcome. I remember when NFIB v. Sebelius was decided. When one starts reading that decision the result is not immediately apparent. It takes some deep reading (and nose counting) to figure out what is going on. And while that might be an extreme example, a good trial or appellate opinion sets out clearly in the beginning the issues in the case and the result before diving into the facts and reasoning.

Advice #4: About those footnotes.

Last, but not least, judges need to follow their own advice about footnotes. Just like textual footnotes detract from briefs, they also detract from opinions and contribute to the three problems identified above. Incidentally, I am also team #nocitationfootnotes, but I know that reasonable minds disagree on that point.

I get that many judges, especially trial judges, are working on huge caseload and tight deadlines. I also get that when attorneys don't follow this advice it makes it even harder for judges to do their jobs. But, perhaps modeling this advice will help slowly move the profession into following it as well.

May 16, 2022 in Appellate Advocacy, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (2)

Sunday, May 8, 2022

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

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

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

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

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

I.    The Reality of Abortion Jurisprudence

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

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

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

    And the Court in Roe likely knew that.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

II.    Overturning Roe will not endanger other constitutional rights.

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

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

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

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

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

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

 

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

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

[3] Id.

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

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

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

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

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

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

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

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

Sunday, May 1, 2022

The Art of Rebuttal

            Rebuttal provides an advocate with an opportunity to point out otherwise undiscussed weaknesses in an opponent’s argument, as well as to emphasize the superiority of the evidence, precedents, and reasoning that supports your client. Five points fundamental points should guide rebuttal:

  1. Answer your opponent’s best argument. During your opponent’s argument, you can evaluate your opponent’s framing of the argument and the court’s reaction to them. Many advocates go after the obvious weakness in the argument the court just heard. Doing so can be effective, but, if the argument is available, demonstrating why your opponent’s best argument should not prevail can powerfully move the court to your position. Perhaps accepting that argument creates practical problems easily avoided or raises unnecessary constitutional issues that the court should want to avoid. Perhaps it would create precedent that throws into question another line of related precedent that cannot coexist together. Simplicity, rather than new complexities, often provide a court with a path that allows it to resolve your case favorably without creating a host of new problems for those who come after you.
  2. Answer questions posed to your opponent. A judge’s questions are a window into the jurist’s mind, letting you know what concerns might animate the decision. Whether it is a seemingly softball question or a penetrating inquiry, a satisfactory answer that leads the judge in your direction can overcome your opponent’s response. If your answer provides a better path to decision, it can create confidence in the court that the result you seek is the proper one. In one argument last year, a judge known to favor that approach asked my opponent whether he was aware of an original-intent scholarship that supported his position. Using only a few seconds of my rebuttal time, I reminded the judge that he did not receive an answer to that question because academic writings on that point uniformly favored my position, citing two scholars.
  3. Don’t waste time rebutting a point that a judge already accomplished for you. There is no more powerful rebuttal to an opponent’s argument than one that comes from the court itself. Unless questioned about it, there is no reason to reiterate that point and subtract from its impact. In a case I had before the U.S. Supreme Court, my opponent made a facially useful point in his brief. In my reply brief, I explained why it lacked substance, adding a footnote that the record reflected that the evidence took away the foundation for that argument. During oral argument, my opponent, early on, made the same point again, ignoring my rebuttal. Justice Ginsburg, however, did not ignore it. She interrupted to state that the evidence deprived him of that argument. He had no response and, despite substantial experience in that court, never recovered from that loss of credibility. When he first expressed the argument, I made an immediate note to rebut it. When Justice Ginsburg made my point, I crossed the note out. She had settled that issue in my favor. Have a one-sentence conclusory pitch. As time runs down, too many advocates end with a perfunctory request for affirmance or reversal of the court below. Instead, a one-sentence conclusory pitch that articulates exactly the ruling you hope the court will adopt and write into the opinion, providing the judges with a strong, clear basis for its decision. That 30-second or less conclusion will leave an impression much more memorable than any generic statement.
  1. Don’t feel the need to use all of – or any of – your time. Too many advocates believe the opportunity for face time before the judges is too valuable to give up. Although they may have nothing new to say, they remain at the podium, reemphasizing something previously articulated. And, often, the advocate endangers the argument by allowing the court to pose new questions that might not have troubled them if the argument had ended. In one case I argued, as my opponent, thoroughly eviscerated by the court’s questions, finished, I realized I had not written a single note to myself about something I needed to answer. I rose and said that, unless the court had any questions, I waive rebuttal. The tactic proved correct, as I received a unanimous decision months later. Although I am fond of certain rebuttals that made astute observations that showed up in the subsequent opinion, waiving that response was unquestionably the best rebuttal I have made in more than four decades of practice.

May 1, 2022 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, April 29, 2022

Appellate Advocacy Blog Weekly Roundup Friday, April 29, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • Justice Stephen Breyer sat for his final argument this week in Oklahoma v. Castro-Huerta. At the end of the argument, Chief Justice Roberts offered a tribute, saying “[f]or 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful, and hypotheticals downright silly.” Justice Breyer’s seat will be filled by the first Black woman to serve on the Supreme Court, Judge Ketanji Brown Jackson.  Hear the audio clip and see reports from AP News, CNN, and USA Today.

  • Oklahoma v. Castro-Huerta, the last argument of the term, considers whether Oklahoma has authority to prosecute crimes committed on reservation land when those crimes are committed by non-Native Americans. The case comes after a decision in McGirt v. Oklahoma that ruled that state and local law enforcement could not prosecute crimes by Native Americans committed on reservation land. The petitioner, who is not a Native American, was prosecuted by state authorities and appealed his conviction arguing that McGirt should apply to any crime committed on reservation land. Read the transcript or listen to argument and see reports from The Wall Street Journal, New York Times, and The Washington Times.

  • The Court also heard argument in a school speech case, Kennedy v. Bremerton School District, which considers the limits of prayer at school. The case weighs the rights to free speech and free exercise of religion against Constitutional precedent that prohibits schools’ pressuring students to participate in religion. The petitioner, a high school coach, was fired after praying at the 50-yard-line after each game. The coach claims that his prayer, which students and others often joined, is his individual exercise of religion. The school, however, argues that (1) the prayer is coercive and (2) the prayer can be perceived as being endorsed by the school.  Read the transcript or listen to argument and see reports from The New York Times, USA Today, and NPR. The New York Times’ The Daily covered the case on Wednesday.

  • The Supreme Court ruled that businesses that receive federal money cannot be sued for discrimination if the only harm is emotional distress. The majority decision rested on principles of contract. The court recognized that the discrimination claims against such businesses were rooted in the agreement that, in exchange for federal funds, the businesses would not discriminate and could be held accountable if discrimination occurred. Thus, because breach of contract does not include recovery for emotional harm, the Court reasoned, claims against these businesses should likewise not include recovery for emotional harm. Justice Roberts wrote, “[a]fter all, when considering whether to accept federal funds, a prospective recipient would surely wonder not only what rules it must follow, but also what sort of penalties might be on the table.” See the decision and reports from The Washington Post and The New York Times.

Appellate Court Opinions and News

The Fourth Circuit allowed a suit against the judiciary by a former federal public defender who argued that her constitutional rights were violated when a Federal Public Defender's Office in North Carolina was deliberately indifferent to her complaints of sexual harassment. Because the Fourth Circuit was a defendant, three judges from the Sixth, Eighth, and Tenth circuits heard the case.  The decision confirms that the Fifth Amendment "secures a federal judiciary employee's right to be free from sexual harassment in the workplace." See the ruling and reports from The Washington Post and Reuters.

April 29, 2022 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Tuesday, April 26, 2022

Appealing TROs: Some “Practical” Advice

    When 1Ls receive assignments in persuasive legal writing and appellate advocacy, their professors will surely remind them that the appellate process typically begins after the trial court has issued a final and appealable order, from which the litigants can file a notice of appeal. Interlocutory appeals are possible, the professor will note, but only on rare occasions that fall outside the typical advocacy curriculum.

    But perhaps the exceptions to the final judgment rule are worthy of greater exploration, especially in the case of temporary restraining orders that have dramatic, fast-moving effects in the real world. TROs are necessarily ephemeral; they are designed to prevent significant damage to a party for a brief time period, during which the court can hear more detailed arguments about the case and reach a reasoned determination about whether to issue a temporary or permanent injunction. At times, though, TROs can have a more meaningful impact. And sometimes, TROs can become longer-term placeholders for a court than the title seems to suggest. In those situations, parties may need an avenue to rapid appellate review of a court’s issuance of a TRO to avoid severe damages to a party’s interests.

    In her forthcoming article Appealable TROs, Professor Bernadette Genetin catalogues the history of appealable TROs and argues for a limited number of interlocutory appeals from TROs under 28 U.S.C. § 1292(a)(1). Providing the example of the Ninth Circuit’s finding that it had jurisdiction to review a district court’s TRO barring enforcement of the so-called “travel ban” issued by the Trump Administration in 2017, Genetin explains the damage that might be done by bright-line rules banning early appeals from TROs. A TRO should be appealable, Genetin suggests, when it has the practical effect of an injunction; threatens serious or irreparable injury; and effective review is available only through immediate appeal. Though such appeals should remain unusual, they may be necessary where circumstances are extraordinary; where there is a need to prevent serious loss of a high order of magnitude on a time-sensitive basis; where the issue falls within the appellate court’s particular and recognized expertise; or where a TRO exhibits many important characteristics of a preliminary injunction. For Genetin, the “practical effect” analysis gives appellate courts an important avenue to evaluate proposed action by the executive branch that the executive deems immediately necessary, yet others suggest violates the structural norms of our government or constitutional prerogatives of coordinate branches. Appellate courts may rightly lower the threshold showing of irreparable harm typically needed to support interlocutory review of restraining orders in order to address the exigencies of the situation and its importance to our governmental structure. As the Ninth Circuit’s decision in Washington v. Trump, 847 F.2d 1151, 1158 (9th Cir. 2017) illustrates, the decision to permit such interlocutory appeals can have an important effect both in determining the limits of executive action and in meaningfully enforcing those limits when necessary.

    Interlocutory appeals of TROs are, and should be, rare. But as Professor Genetin notes, bright-line rules prohibiting such interlocutory appeals fail to account for the flexibility needed to address rapidly-evolving issues of governmental structure in our present political environment. Courts should not hesitate to implement such limited flexibility in the years to come.

April 26, 2022 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, April 23, 2022

Why Judicial Deference Matters

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

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

A.    Cases where judicial deference was appropriate

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

        1.    Clinton v. New York

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

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

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

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

            2.    Kennedy v. Louisiana

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

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

            3.    Citizens United v. FEC

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

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

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

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

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

            4.    Shelby County v. Holder

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

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

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

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

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

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

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

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

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

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

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

This isn’t a joke.

It actually happened.

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

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

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

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

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

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

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

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

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

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

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

 

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

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

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

[4] 524 U.S. 417.

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

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

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

[8] 524 U.S. 417.

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

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

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

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

[13] Id. (emphasis added).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Saturday, April 16, 2022

Fifth & Seventh Circuits Uphold Sanctions for Seasoned Attorneys, Rejecting Their Requests for Relief Based on Their Experience--Part One

As a legal writing professor, I often blog about appellate work for new attorneys or law students.  For my next two blogs, however, my comments definitely include newer lawyers and those of us (like me) who have lower bar numbers and years of practice experience.  On April 8, 2022, the Fifth Circuit reminded an experienced attorney:  “When litigating in federal district court, it is often advisable to read the court’s orders.”  Scott v. MEI, Inc., 21-10680 (5th Cir. Apr. 8, 2022) (per curiam).  Also on April 8, the Seventh Circuit refused to reverse sanctions against a self-claimed “seasoned litigator,” even though the litigator claimed being required to complete basic CLE classes was “demeaning.”  Bovinett v. Homeadvisor, Inc., 20-3221 (7th Cir. Apr. 8 2022).  Both orders take pains to remind all counsel, even those claiming to be very experienced, of the duty to competently follow the law in the trial and appellate courts.  This month, I’ll focus on the Fifth Circuit, and next month, I’ll discuss the Seventh Circuit.

In the Fifth Circuit case, Scott v. MEI, Inc., the district court sanctioned Dallas attorney Matthew R. Scott for misleading the court and wasting opposing counsel’s time.  Scott (5th Cir. Apr. 8, 2022).  Scott’s defense, in essence, was that he misread an order granting leave to file a second amended complaint. See Debra Cassens Weiss, 5th Circuit Tells Lawyer It Is “Often Advisable to Read the Court's Orders,” Upholds $1,250 Sanction, ABA Journal (Apr. 11, 2022).  Like many similar orders, the district court’s order allowing amendment of several new claims granted Scott’s client only the right to file; of course, Scott needed to actually present the second amended complaint for filing in order to add the claims.  He failed to do so, “assum[ing]” permission to file equaled filing.  Scott at 2.  Scott then missed the deadline for any additional amended complaints.  Id. at 3.  Nevertheless, Scott moved late to file a third amended complaint discussing the never-filed second amendment claims and the original claims.  Id.  When the court questioned Scott about adding new claims after missing several deadlines, Scott erroneously argued the third amended complaint would only remove claims, and would not add new issues.  Id.  “That kind of parlous behavior would, the [district] court reasoned, constitute misrepresentation and conduct unbecoming a member of the bar.”  Id.  Accordingly, the court ordered Scott to pay his opponent $1,250 as “reimbursement for ‘reasonable attorney’s fees incurred in responding’ to the untimely motion for leave to amend and to the show cause order.”  Id. at 4.

Nonetheless, Scott asked the Fifth Circuit Court of Appeals for relief from the sanction, stating:  “I apologize to the court for my mistakes, but I assure the court that those mistakes are not representative of my abilities as an attorney nor evidence of misconduct.”  Id.  Scott repeated his explanation that he misread the order granting leave to file the second amended complaint, and also claimed he had experience litigating “around 750 lawsuits” and obtained referrals from other attorneys.  Id.; see Cassens Weiss, 5th Circuit.  Scott also raised four grounds for reversal, including an interesting claim “that it is illegitimate for a court to order counsel to reimburse another party for a response to a court order or a party’s motion.”  Id. at 5.

The Fifth Circuit began its opinion:  “[w]hen litigating in federal district court, it is often advisable to read the court’s orders. They are not merely ‘the breath of an unfee’d lawyer,’ and an attorney who treats them as such does so at his own peril.”  Id. at 1.  The court then reasoned “[t]his entire debacle was the result of Scott’s failure to follow a court order, so the district court was well within its legal authority to take disciplinary action.”  Id. at 2.  The Fifth Circuit rejected Scott’s arguments on appeal as “paper-thin” and noted the claim of “illegitimacy” was frivolous and based only on Scott’s incorrect “hunch” about what the law might be.  Id. at 4, 6.  The court concluded:  “Scott made a mistake. The district court imposed a reasonable sanction to reimburse [the opponent] for the expense of dealing with that mistake. Law, fact, and logic itself support that course of action.”  Id. at 6.

I will definitely be using the “law, fact, and logic itself” line in the future, and I will write about the Seventh Circuit and its approval of a sanction requiring experienced counsel to attend a class like the “Basic Illinois State Bar Association’s Basic Skills for Newly Admitted Attorneys” next time.   Until then, happy drafting. 

April 16, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing | Permalink | Comments (0)

Sunday, April 3, 2022

The Logic of a Courtroom, the Skewing Influence of Politics

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

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

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

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

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

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

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

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

 

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

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

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

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

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

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

Friday, April 1, 2022

Appellate Advocacy Blog Weekly Roundup Friday, April 1, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • In a shocking and unexpected move, a unanimous Supreme Court overturned Marbury v. Madison this afternoon stating that the principle of judicial review was, in fact, unconstitutional.  The sua sponte ruling sent ripples through the legal community with many wondering how the decision may retroactively affect what was consider controlling Supreme Court precedent. See the opinion here.  And reports from The New York Times, CNN, and Fox.

  • The Supreme Court heard argument this week in a case that addresses whether companies can use arbitrations clauses that forbid class claims. At issue is a California labor law that allows attorneys to sue on behalf of groups of workers even where the workers agreed to arbitrate their claims.  The Court posted transcripts and audio of the argument. See reports from Courthouse News Service and The LA Times.

  • This week, the Supreme Court agreed to hear two interesting cases:

    • A case involving the humane treatment of pigs that will hear a challenge to a California law that requires adequate space for breeding pigs to turn around. The challenge argues that the law is an unfair burden on out-of-state farmers. See discussion of the case from The New York Times and The Washington Post.
    • A copyright battle over Andy Warhol’s Prince image. The question is whether Warhol violated copyright of the photographer Lynn Goldsmith when Warhol created his Prince images based on the Goldsmith’s photo. The case addresses the scope of fair use as a defense to copyright infringement. See discussion of the case from NBC News, USA Today, and The New York Times.

State Court Opinions and News

The Louisiana Supreme Court has ruled that Black Lives Matter leader DeRay McKesson could be liable for injuries an officer suffered during a 2016 protest. The court ruled that people who participate in crimes by others can be held liable and that emergency workers injured while on duty are not automatically barred from suing. See ruling and reports from ABA Journal and The Advocate,

April 1, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Sunday, March 27, 2022

A Few Thoughts on Ketanji Brown Jackson

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

Robert Bork should have been confirmed too.

And Brett Kavanaugh was rightly confirmed.

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

Why?

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

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

How sad, and shameful.

***

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

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

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

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

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

***

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

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

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

As they say, elections have consequences.

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

***

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

Tuesday, March 22, 2022

Why Standards of Review Matter

    When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.

    The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.

    Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.

    In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.

    A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.

March 22, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, March 18, 2022

Appellate Advocacy Blog Weekly Roundup Friday, March 18, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court denied two emergency petitions and allowed to stand court-drawn congressional voting maps in North Carolina and Pennsylvania. In both states, republican gerrymandered maps had been challenged by democrats. However, both the concurrence and the dissent in the North Carolina case indicate that at least four justices are interested in hearing the “exceptionally important and recurring question of constitutional law, namely, the extent of a state court’s authority to reject rules adopted by a state legislature for use in conducting federal elections.”  See the North Carolina order and a report from The New York Times.

  • The Supreme Court issued a news release concerning the March session. Although the Court will continue to hear arguments in the courtroom, “[o]ut of concern for the health and safety of the public and Supreme Court employees, the Courtroom session will not be open to the public.” Live audio feed will continue to be available on the Court website.

  • SCOTUSblog’s Amy Howe provided a list of the March 2022 session arguments with descriptions of the cases.  Find it here.

Appellate Court Opinions and News

The Fourth Circuit approved a permanent injunction that prevents South Carolina’s removing Planned Parenthood from the list of approved Medicaid providers. The panel found that allowing “the State to disqualify Planned Parenthood would nullify Congress’s manifest intent to provide our less fortunate citizens the opportunity to select a medical provider of their choice, an opportunity that the most fortunate routinely enjoy.” See the order and reports from Bloomberg Law, Reuters, and Courthouse News.

State Court Opinions and News

The Texas Supreme Court has ruled that state regulators cannot enforce the State’s near-total ban on abortions and thus cannot be sued to challenge the law.  See the ruling and reports from Reuters, The New York Times, and Bloomberg News.

March 18, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, March 12, 2022

Appellate Oral Argument Tips

Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.

This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.

Below are several tips that attorneys should consider when preparing for an appellate oral argument.

1.    Begin by addressing the weaknesses in your argument.

Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.

Appellate judges aren’t stupid.

They know the law.

They know the record.

And they know what your strongest arguments are – and they probably don’t care.

Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.

For example, in Maryland v. King, where the Court considered  whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:

[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.

Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)

Justice Scalia: That proves absolutely nothing.

[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.

Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.[1]

The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.

The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.

Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value. 

2.    Appellate courts care about their institutional legitimacy and your argument should reflect that reality.

The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.

That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.

Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.

3.    The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.

When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.

But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.

That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.

To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.

For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).

4.    Know who your friends are and target the swing justices.

Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.

Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.

To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.

5.    Be conversational and relatable, not confrontational and rigid.

Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.

That approach is a mistake. An oral argument should be a conversation, not a confrontation.

Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.

Judges – like all people – may be more likely to agree with a litigant that they like.

Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.

6.    Think of the one thing that you want to say – and say it in a way that the judges will not forget.

This needs no explanation.

Watch Matthew McConaughey’s closing argument in A Time to Kill.

 

[1] Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).

March 12, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (1)

Saturday, March 5, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, March 5, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court reversed a lower court decision and upheld the death sentence for Dzhokhar Tsarnaev, one of the two the Boston Marathon bombers. The lower court’s decision had set aside the death sentence finding that the trial judge may have erred in excluding mitigating evidence. In reinstating the sentence, the Supreme Court ruled that Tsarnaev had received the fair trial guaranteed by the Sixth Amendment. See the order and reports from CNN, The Boston Globe, and the Wall Street Journal.

  • This week, the Supreme Court heard argument in what is being touted as the most important environmental case in more than a decade. The case concerns the scope of the Environmental Protection Agency’s regulatory power, specifically, whether the Agency has authority to regulated power plants’ carbon emissions. But the decision may affect federal regulatory power more broadly. The arguments in the case concern the more central question of the scope of federal agencies authority overall. See links to the transcript and audio of the argument and reports from USA Today, Bloomberg, The Wall Street Journal, and The New York Times.

  • The Supreme Court ruled that state-secrets doctrine protects against the disclosure of black-site locations. A Guantánamo detainee sought information concerning his allegations of torture by CIA contractors. The ruling determined that the information could confirm the location of a CIA black site and that the government could therefore assert national security concerns to protect the information. See the order and reports from The New York Times, USA Today, and The Washington Times.

  • In a second state-secrets case, the Supreme Court overturned the Ninth Circuit and ruled that the government could invoke the state-secret doctrine to block claims alleging that the FBI violated the right to the free exercise of religion when it spied on Mosques after 9/11. The decision, which the Court described as “narrow,” does not block or end the lawsuit but sends it back to the Ninth Circuit to determine whether the secret evidence is core to the government’s defense.  See the ruling and reports from The New York Times and The Los Angeles Times.  

Appellate Court Opinions and News

  • The First Circuit has ruled that a Massachusetts judge can be prosecuted for helping an immigrant avoid arrest. The court rejected the argument that the judge enjoyed immunity for actions taken in her official capacity. See the order and reports from the ABA Journal and Reuters.

In other news

  • Vermont Governor Phil Scott appointed Judge Nancy Waples to be the first woman of color to serve on the Vermont Supreme Court. See the news release and a report from The Burlington Free Press

March 5, 2022 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, February 27, 2022

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

“God Hates Fags.”[1]

“Fags Doom Nations.”[2]

“Fag Troops.”[3]

“God hates you.”[4]

Should the First Amendment be interpreted to protect this nonsense?

No.

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

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

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

***

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

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

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

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

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

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

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

No.

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

No.

Put simply, Snyder v. Phelps was wrongly decided.

***

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

The Court got it wrong.

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

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

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

I cannot agree either.

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

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

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

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

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

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

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

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

But there is a limit.

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

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

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

 

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

[2] Id.

[3] Id.

[4] Id.

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

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

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

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

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

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

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

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

[13]  475 U.S. 41 (1986).

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

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

[16] Id. (emphasis added).

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

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

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

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

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

Tuesday, February 22, 2022

Preempting Appellate Issues in Palin v. New York Times

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

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

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

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

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

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

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

Friday, February 18, 2022

Appellate Advocacy Blog Weekly Roundup Saturday, February 18, 2022

WeeklyRoundupGraphic

Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

  • The Supreme Court is set to review whether the Biden administration can end the former administration’s “Remain in Mexico” border policy. After challenges from Texas and Missouri, a Texas US District Court ruled against the attempt to end the policy, ordering that the policy must remain in place. The Court will likely hear argument in Biden v. Texas, et al. in April. See reports from CNN, The Hill, and Roll Call.

  • The Library of Congress and the Supreme Court Fellows program posted this video of the February 17 program, titled “The 2022 Supreme Court Fellows Program Annual Lecture with U.S. Supreme Court Justice Stephen Breyer.”

  • New York University School of Law hosted the “Inaugural Robert A. Katzmann Lecture: A Conversation with Justice Sonia Sotomayor.” Find the conversation between Justice Sotomayro and Dean Trevor Morrison here.

Appellate Court Opinions and News

  • The Fifth Circuit reversed a district court’s denial of an injunction in a case brought by United Airlines employees challenging United’s vaccine mandate. The original petition sought to enjoin the vaccine mandate and the petition was denied. The court ruled that employees may indeed suffer irreparable harm from the vaccine mandate. The Fifth Circuit did not grant the injunction but remanded the case for consideration of other factors. The ruling became a topic of interest this week more for the scathing dissent than for the ruling itself. Judge Smith’s dissent included the following:

    If I ever wrote an opinion authorizing preliminary injunctive relief for plaintiffs without a cause of action, without a likelihood of success on the merits (for two reasons), and devoid of irreparable injury, despite the text, policy, and history of the relevant statute, despite the balance of equities and the public interest, and despite decades of contrary precedent from this circuit and the Supreme Court, all while inventing and distorting facts to suit my incoherent reasoning, “I would hide my head in a bag.” Perhaps the majority agrees. Why else shrink behind an unsigned and unpublished opinion?

    See the ruling and reports from The Associated Press, Courthouse News Service, and The National Law Journal. There was also a well-followed thread on Twitter.

     

  • California Governor Newsom has nominated Patricia Guerroro to the state’s supreme court. If confirmed, she will be the first Latina to sit on the court.  See reports from The Los Angeles Times, NBC News, and The San Francisco Chronical

     

     

February 18, 2022 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, February 7, 2022

In favor of remote arguments

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

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

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

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

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

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

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

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

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

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

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

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

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

Tuesday, January 25, 2022

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

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

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

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

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

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

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

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

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

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