Appellate Advocacy Blog

Democracy and Deference

In U.S. v. Skrmetti, the United States Supreme Court will determine whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause.

On December 4, 2024, the Court held oral argument, and the attorneys for Petitioner and Respondent presented strong arguments. Among the issues under consideration is whether the prohibition on gender-affirming care discriminates based on age or sex, the latter of which would require heightened scrutiny under the Court’s jurisprudence. Petitioner and Respondent’s attorneys also presented competing arguments regarding, among other things, the benefits and harms that upholding Tennessee Bill 1 would engender. In so doing, the justices acknowledged that both sides presented compelling arguments and that reasonable people could disagree on whether Tennessee Bill 1 furthered legitimate and salutary purposes.

Given this fact, a few justices questioned why the Court, rather than the legislature, should resolve this issue through the democratic process. For example, during oral argument, Justice Kavanaugh stated:

I want to ask about our role here and pick up on the Chief Justice's questions at the beginning, who decides. You've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn't take sides, if there's strong, forceful scientific policy arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?[1]

As Justice Kavanaugh stated, “[y]ou say there are benefits from allowing these treatments,” but given that “there are also harms … how do we as a Court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?”[2]

The concern that the democratic process, rather than the Court, should resolve this issue—particularly when reasonable people differ on whether the law is beneficial or harmful and where the Constitution’s text is ambiguous—will likely carry the day. If it does, the Court will rightfully embrace a principle that promotes democracy and bottom-up governance: where reasonable people can disagree about a law’s constitutionality, the democratic, not judicial, process is the proper forum to resolve policy disputes. In other words, when the Constitution’s text is broadly worded and reasonable people can interpret such text differently, the Court should defer to the democratic process. Deference is essential to democracy, the Court’s legitimacy, and the right of citizens to determine whether specific unenumerated rights should be recognized.

Unfortunately, in many instances, the Court has taken the opposite approach and issued rulings in cases that have undermined the democratic process and invalidated legislation promoting participatory democracy and addressing important economic and social issues. For example, in Citizens United v. Federal Election Commission, the Court by a 5-4 margin invalidated a provision of the Bipartisan Campaign Reform Act that limited corporate funding of independent political broadcasts in elections.[3] In so doing, the Court overturned Austin v. Michigan Chamber of Commerce and held that corporations enjoy First Amendment protections.[4] But what language in the First Amendment supported this holding? At the very least, reasonable people could differ on whether, for example, the First Amendment applies to corporations. As such, why didn’t the Court defer to the coordinate branches and uphold a law that sought to reduce the corrupt influence of money in politics? There is no answer—at least not a good one.

Similarly, in Kennedy v. Louisiana, the Court considered whether a law authorizing the death penalty for child rape violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[5] Neither the Eighth Amendment’s text nor its original purpose answered this question; at the very least, reasonable people could differ on whether such a punishment was cruel and unusual. Notwithstanding, the Court ruled 5-4 that the law violated the Eighth Amendment and thus prohibited the states from resolving this issue democratically. In Roper v. Simmons, the Court made the same error, holding that the Eighth Amendment categorically prohibited the execution of minors even though the Eighth Amendment could not possibly be interpreted to support this result, or the “evolving standards of decency” upon which the Court relied to reach its decision.[6]

Improvident intervention in the democratic process is the norm, not the exception, in the Court’s jurisprudence. In Griswold v. Connecticut, the Court invalidated a Connecticut law prohibiting contraception, holding that although the Constitution’s text did not resolve this question, there existed invisible “penumbras” in the Constitution’s text that enabled the Court—and only the Court—to recognize unenumerated rights, such as the right to privacy, and thus impose its policy views on an entire nation.[7] In Roe v. Wade, the Court compounded this error by holding that the right to privacy encompassed a right to terminate a pregnancy, even though nothing in the Constitution’s text could be interpreted to support its holding.[8] To be sure, a deferential approach is not about promoting a particular political viewpoint. Whether one supports a right to abortion is irrelevant; what matters is that nine unelected judges decided that their views should remove this issue from democratic choice.

In contrast, some decisions have demonstrated appropriate deference to democratic processes. For example, in Washington v. Glucksberg, the Court declined to create a right to assisted suicide, holding that because the Constitution’s text was silent on this issue, it should be resolved democratically.[9] Additionally, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts cast the deciding vote upholding the Affordable Care Act, concluding that the Act’s individual mandate constituted a tax, not a penalty.[10] The primary reason underlying Roberts’ decision was arguably to preserve the Court’s institutional legitimacy by deferring to the coordinate branches and avoiding a decision that appeared politically motivated. In Dobbs v. Jackson Women’s Health, the Court remedied the harm that Roe caused to the Court’s legitimacy by returning the issue to the states.[11]

Of course, the Court has the power to say what the law is, but how can the Court say what the law objectively is when a constitutional provision is ambiguous and subject to differing interpretations? It cannot. In such circumstances, saying what the law is requires the justices to determine subjectively what the law should be. That is the problem. In a democracy, the people have the right to say what the law should be, not nine unelected and life-tenured justices. Thus, where the Constitution is silent or capable of reasonably different interpretations, the Court should defer to democratic choice. A court with limited power is essential for preserving democracy, and the process by which the Court makes decisions is equally, if not more, important than the outcomes it reaches.

 

[1] U.S. v. Skrmetti, Transcript of Oral Argument,  (Dec. 4, 2024), p. 40-41, available at: 23-477_c07d.pdf

[2] Id. at 44-45.

[3] 558 U.S. 310 (2010).

[4] 494 U.S. 652 (1990).

[5] 554 U.S. 407 (2008).

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

[7] 381 U.S. 479 (1965).

[8]  410 U.S. 113 (1973).

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

[10] 567 U.S. 519 (2012).

[11] 597 U.S. 215 (2002).

A New Rule on Amicus Briefs?

The Advisory Committee on Appellate Rules has published for public comment amendments to Federal Rule of Appellate Procedure 29, which covers amicus briefs. One amendment seeks to impose disclosure requirements so that entities filing as amici can clearly be identified. It would require all amicus briefs to include “a concise description of the identity, history, experience, and interests of the amicus curiae, together with an explanation of how the brief and the perspective of the amicus will help the court.” To reveal whether an amicus was created for purposes of this particular case, the proposed rule also requires an amicus that has existed for less than 12 months to state the date the amicus was created.

These requirements are, in part, designed to prevent parties from extending their briefs through proxies filing as amici. The proponents also claim it will inform the court about how independent the amicus really is. Instead, leave of the court would always be required. The proposed rule would require that the amicus brief bring to the court’s attention “relevant matter not already mentioned by the parties. Briefs that do not accomplish that or are “redundant with another amicus brief” are disfavored. Nothing in the proposal indicates how amici might know what another amicus will file.

The Supreme Court has gone in a very different direction, welcoming all amicus briefs and no longer requiring either leave or consent. The advisory committee chose not to follow suit because the Court’s booklet printing requirement acts as a deterrent to overwhelming the Court, it claims, even though the growth in filing Supreme Court amicus briefs continues.

The proposals were published August 15 and have a comment period that runs through February 17. Comments may be submitted electronically. In addition, the advisory committee will hold two hearings on the proposals next year before the comment period ends. Those interested in appellate advocacy may want to view the proposals and their explanations, which are available at https://www.uscourts.gov/sites/default/files/preliminary_draft_of_proposed_amendments_2024.pdf.

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

 1.    Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

 2.    Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

 3.    Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17]  Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

 

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

[12] Id. (Forrest, J., concurring).

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec.  Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

Different Strokes for Different Courts

In a new book to be published in November, Second Circuit Judge Jon O. Newman and Duke law professor Marin K. Levy detail the many different rules adopted by the federal circuit courts. Written & Unwritten: The Rules, Internal Procedures, and Customs of the United States Courts of Appeals, grew out of Levy’s clerkship experience in the Second Circuit where she wondered whether other circuits used a “non-argument” calendar for a limited range of cases. When she asked the clerk of court that question, she learned that the courts operate in silos and know little about what sister courts do.

At a Constitution Day event sponsored by the Supreme Court Historical Society (September 17), the two coauthors explained that the book reflects an examination of local rules and practices, as well as interviews with chief judges and surveys of court clerks. During their talk, Judge Newman and Professor Levy highlighted three practices from different circuits.

One concerned a situation that often bedevils appellate counsel. You have argued the case or made a motion that is fully briefed, and then you wait and wait for a disposition. Counsel will often sit in frustration at the delay, but rarely attempt to bring the situation to the court’s attention so as not to create a bad impression. In one state court appellate case I argued, I waited more than two years for the court’s opinion, which finally issued the decision earlier this year. When I served on a panel at a conference with another judge from that circuit, I asked whether there was anything I could do to encourage a decision. She told me that there really was nothing to do, although she mentioned a legendary response that had occurred on one occasion: a brave lawyer filed a birthday card on the second anniversary of oral argument. A decision issued soon afterwards. I chose not to follow that approach but received a favorable decision two years and one month after the oral argument.

Many advocates similarly eschew some type of prod to the court. They may file supplemental authority to remind the court that the case is pending, but take no other action. Newman and Levy, though, learned that the Ninth Circuit encourages counsel to contact the clerk over a delayed motion or appeal. The advisory committee note to Circuit Rule 25-2 tells counsel to send a letter to the Clerk. It sets timelines for when a delay is deemed unreasonable: a motion pending more than four months, no notice of oral argument or submission on the briefs within 15 months of the completion of briefing, a merits decision more than nine months after submission, a mandate taking more than 28 days to issue, or a petition for rehearing pending longer than six months. No other federal circuit has made similar provision to address unreasonable delay.

Also unique among the federal circuits is the Federal Circuit instructions on who to refer to the district court in a case. For the past decade, the Federal Circuit has published Internal Operating Procedures that includes Procedure 11, which describes citation rules. Rule 9 of that booklet indicates that it is disrespectful to the originating court for counsel to refer to it as “the court below,” “the lower court,” the lower tribunal,” or “the judge below.” Instead, the court insists that counsel use “district court,” “trial court,” “district judge,” “trial tribunal,” or “court.”

The third unique example the authors discussed was the Second Circuit’s deadline for briefing. Federal Rule of Appellate Procedure 31(a)(1) requires the appellant to file a brief within 40 days after the record is filed. Replies are due within 30 days of that brief, while a reply is due within 21 days as long as it is at least seven days before argument. Rule 31(a)(2) authorizes a court of appeals to shorten the time by local rule or order in a particular case. Yet, the Second Circuit, by local rule, has lengthened the time, requiring the opening brief within 90 days to render unnecessary motions to extend the due date. The parties may confer and set their own times, as long as it does not go beyond 90 days. The court will deny motions to extend beyond that absent “a most extraordinary circumstance.”

A multitude of other differences exist between circuits. For example, in most circuits, you learn of the judges who will serve on your panel 30 days before oral argument. However, in the Fourth and Seventh Circuit, the clerk posts the panel the very morning of argument.

Although it may seem odd that different circuits follow such different rules, it pays for an advocate who argues in more than one circuit to know the differences. Written & Unwritten performs a valuable service for that traveling advocate.

Writing Briefs, Rather than Literary Works

Some great literary works feature elegant and meticulously assembled sentences of considerable length. They carry you away like a leaf dancing in the wind, sending you headfirst into a wonderous and unfamiliar world. Like an evocative musical passage, it demands attention and provokes both emotions and thoughts that you know will reach completion in a way and with timing not yet knowable. It achieves its goals by sowing confusion and surprise in a calculated fashion but its words seem to be uttered breathlessly with the elongation of a wind instrument’s musical note held longer than thought humanly possible.

The task of brief writing plays a markedly different tune, even if it embodies literary qualities unique to the genre. It seeks not to astonish but to develop a clear, logical, and compelling path to the advocate’s preferred result. A brief advances abstract legal concepts but then dresses them in examples, often drawn from precedents that provide concrete applications that align with the case at hand.

The best brief writers prepare the reader for what is to come. The opening sentence of a section or a paragraph will provide a signpost about what is ahead. It prepares the reader to receive the thought. A sentence that begins with “ordinarily” advises a reader that the rest of the sentence will declare something familiar and seemingly unassailable. Yet, it also signals the reader that the sentences that follow will explain why this case does not involve ordinary circumstances but a distinctive situation that demands a conceptually different approach.

Signals may be individual words, or they may be clauses or full sentences. In one argument I had before the Supreme Court, Justice Breyer asked me to name the best precedent to support my point. He correctly anticipated the case I would cite. He told me that he had the case in front of him and asked me to explain a sentence in it that seemed to undermine my point. The Respondent’s reply brief also homed in on that sentence. I responded to Justice Breyer by explaining that he (as well as my opponent) had left off a dependent clause that proceeded the words he quoted. That clause, I explained, changed the sentence’s meaning in my favor. Justice Breyer chuckled at my response and agreed with my position. Rather than serve as a question designed to trip me up, he was looking to evoke the response I made.

The episode also demonstrates that judicial opinions often have signals or signposts to aid the reader in understanding the ruling. The legal issues that often provide the fodder of appeals usually involve submerged complexities lurking below the simplicity found on the surface. The writer who wishes to provide a clear path to a result understands that a brief or court opinion may need to build toward that end by assuring that the reader anticipates the path ahead as essential to understanding why it compels a favorable result.

Trapped Between Two Precedents

            Appeals often turn on where the line exists between broad principles and specific applications. Advocates fondly cite high-flown rhetoric about something that favors their clients and the heavy burden that must be met to overcome it. On the other hand, opponents may meet that argument with declarations about how no right is unfettered and provide examples of exceptions that align with their position.

            Take, for example, the right to engage in political discussions. A familiar description of the right holds that it represents “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.”[1]  The decision also recognizes that “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need . . . to survive.’”[2] In fact, the New York Times Court laid down the gauntlet by declaring that the First Amendment “was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.”[3]

The clarion call for broad constitutional tolerance of political speech that the opinion represents provides welcome fodder for an advocate seeking to ride a free-speech wave. Yet, just a year later, the Supreme Court retreated a bit from that description of the scope of political speech. Rather than treat the right as completely unfettered, the Court acknowledged that freedom “implies the existence of an organized society maintaining the public order, without which liberty itself would be lost in the excesses of anarchy.”[4]

The two decisions set up a traditional appellate issue that can occur in any area of law: where is the cutoff between the promise and the limitation at issue in a case. Certainly, that conflict cannot be resolved in the abstract. It requires the factual context to determine which approach should prevail in a particular scenario.

            What is important, though, is that an advocate acknowledge the balancing that must take place. Unlike some negotiations, appellate advocacy is not about staking out an extreme position and hoping that a compromise gives you most of what you really want. Instead, it is about convincing your panel that you have adopted a workable and reasonable approach that it should endorse. That is why it is important to recognize the limits of your position, anticipating the pushback and responding to why it still works in your favor.

            At the same time, your position may require new exceptions or a wholesale rethinking of existing precedent. The Supreme Court has developed a reputation for not taking stare decisis as seriously as its predecessors. It has shown a willingness to reconsider precedent and abandon it because it believes the holding was wrong.

            In fact, two justices have called for New York Times, the case I quoted at the top of this post, to be reconsidered, although not as a result of any hostility to free speech per se. Justice Thomas, for example, advocates for reconsideration of the actual-malice standard that New York Times articulated to protect citizens from being sued by public officials over criticism. He has written that the case and decisions extending it “were policy-driven decisions masquerading as constitutional law” without a basis in text, history, or constitutional structure.[5] He has also expressed concern about the “proliferation of falsehoods” as a “serious matter” that might be remedied by “traditional remedies like libel suits.”[6]

            Justice Gorsuch has expressed a similar view, suggesting that the changes in “our Nation’s media landscape . . . in ways few could have foreseen” allows “virtually anyone in this country can publish virtually anything for immediate consumption virtually anywhere in the world” and should permit some type of corrective mechanism like libel to work as it once did.”[7]

            I mention the possibility of an overruling of precedent, not because I believe it warranted in the case of New York Times, but because a request to reconsider precedent at the proper level of court can provide another tool for an advocate boxed in by precedent, particularly when there are ready advocates for that position on the court.

 

[1] New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[2] Id. at 271-72 (citation omitted; ellipses in orig.).

[3] Id. at 269.

[4] Cox v. Louisiana, 379 U.S. 536, 554 (1965):

[5] Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5 (2023) (Mem.) (citations omitted) (Thomas, J., concurring in the denial of cert.). Blankenship is only the latest of opinions written by the justice expressing this view.

[6] Berisha v. Lawson, 141 S. Ct. 2424, 2425 (2021) (Thomas, J., dissenting from the denial of cert.).

[7] Id. at 2427 (Gorsuch, J., dissenting from the denial of cert.).

A Font by Any Other Name Does Not Read the Same, Redux

On May 19^th, my post on this blog covered the different requirements and suggestions that federal circuit courts have for the font used in any brief. A Font by Any Other Name Does Not Read the Same.

Now, the Seventh Circuit has weighed in on the subject in a new opinion written by Judge Easterbrook. The underlying dispute concerned a business lease. However, what made the opinion newsworthy was its discussion of fonts. The plaintiff’s lawyer chose to write his opposition to a motion to dismiss using “Bernhard Modern, a display face suited to movie posters and used in the title sequence of the Twilight Zone TV show,” according to the court. AsymaDesign, LLC v. CBL & Assocs. Mgmt., Inc., No. 23-2495, 2024 WL 2813827, at *2 (7th Cir. June 3, 2024). If you assumed that comment telegraphs the court’s attitude about its use, you stand on solid ground.

The opinion directs practitioners to review the court’s Handbook, available at https://www.ca7.uscourts.gov/rules-procedures/Hand-book.pdf, for “important advice about typography” and reminds attorneys that they should give due regard for the “sore eyes of judges who must read copious legal materials.” Id. The Handbook, the court reminds everyone, suggests that lawyers select “type-faces (often called fonts) suited for use in books and other long-form presentations” and choose the “most legible face available to you.” Id. It further states that “[d]isplay faces such as Bodoni or Bernhard Modern wear out judicial eyes after just a few pages,” “make understanding harder,” and is not exactly conducive “to easy reading of long passages.” Id.

It concludes with the fervent “hope that Bernhard Modern has made its last appearance in an appellate brief.” Id.

Two days later, an in-circuit district court cited that passage to register its complaint about a brief that omitted page numbers. Kika C. v. O'Malley, No. 22 C 1502, 2024 WL 2873557, at *3 n.6 (N.D. Ill. June 5, 2024).

New Rules on Appealing Factual Findings under the Clear-Evidence Rule

Advocates usually face tough sledding if their appeal merely disputes factual findings. Those appeals confront the “clear-evidence” standard, a demanding test that requires the appellate court to find that the findings are not plausible given the evidentiary record. Appellate courts assume that trial courts have greater expertise in evaluating the facts because experiencing the presentation of the case in the living courtroom allows a judge to assess credibility, among other things, that a cold written record cannot convey.

In Cooper v. Harris (2017), the Supreme Court, in an opinion written by Justice Kagan, applied that rubric to uphold a three-judge panel’s decision that invalidated a North Carolina congressional redistricting plan under the “deferential standard of review” that applies to factual findings. The Court held that a “plaintiff may make the required showing [to demonstrate that race was the predominant factor in drawing district lines] through ‘direct evidence’ of legislative intent, ‘circumstantial evidence of a district’s shape and demographics,’ or a mix of both.” The decision distinguished an earlier favorable review of one of the same districts in  Easley v. Cromartie (2001), because the majority read that decision to involve a particularly week evidentiary record of racial considerations that could only be overcome if the plaintiffs had offered an alternative map. That map would have to demonstrate that the legislators’ political goal could have been achieved without regard to race. In Cooper, the Court held sufficient strong evidence, including direct evidence, existed so that an alternate map was unnecessary.

Justice Thomas concurred, writing that the analysis in Cooper “represents a welcome course correction to this Court’s application of the clear-error standard.”

Justice Alito wrote the dissent. He asserted that the majority had treated the earlier precedent “like a disposable household item—say, a paper plate or napkin—to be used once and then tossed in the trash.” He labeled the absence of an alternative map “a critical factor in our analysis” in Cromartie and asserted its absence in the Cooper record required that North Carolina’s new map be upheld.

What a difference a few years and a few justices make! On May 23, the Supreme Court reinstated a South Carolina congressional map that the district court had found to be the product of racial gerrymandering. This time, the writers switched sides. Justice Alito wrote the majority opinion, Justice Thomas concurred with the new majority, and Justice Kagan authored the dissent. The majority’s treatment of the clear-evidence standard suggests a new wrinkle for the clear-evidence rule that likely affects a wide swath of cases.

In Alexander v. South Carolina State Conference of the NAACP, No. 22-807, the Court held that politics permissibly informed the map-drawing task even if the political motivation correlated with treating race as a predominant factor in the maps. Because the district court did not disentangle race and politics, the Court said, its findings of fact were clearly erroneous. To prevail on the racial-gerrymandering issue, the Court required a plaintiff to rule out the competing explanation of politics. It insisted, as it asserted Cromartie required, that a plaintiff would have to draw a partisan map consistent with the legislature’s intent to favor the dominant political party but with greater racial balance. In other words, the plaintiff had to do a better job of creating the same partisan advantage without evidencing any racial discrimination, a requirement that probably sounds the death knell for racial gerrymandering cases. The Court declared that the district court committed “clear factual error in concluding that race played a predominant role in the legislature’s design,” and the absence of an alternative map warranted an “adverse inference against the Challengers.”

The opinion further called the plaintiffs’ expert reports “deeply flawed” for much the same reason. The “tens of thousands of maps [produced] with differently configured districts” did not include “a single map that achieved the legislature’s partisan goal” of keeping the challenged districts Republican, the majority held.

In the majority’s version of the evidence, no direct evidence suggested the legislature’s map was drawn with a racial “target,” as the district court found. The Court also criticized the district court for “infer[ring]” that, by keeping the racial percentages in the districts the same as previously existed (17 percent), race played a predominant role in the districts’ shape. It noted that no map offered by the plaintiffs “would have satisfied the legislature’s political aim” without increasing the concentration of minority voters, which would have created a Democratic majority. Thus, the majority concluded the 17-percent standard was “simply a side effect of the legislature’s partisan goal” and not constitutionally suspect.

The majority also rejected the dissent’s criticism that clear-error review is essentially perfunctory, declaring that “appellants are entitled to meaningful appellate review” of factual findings.

Justice Thomas concurred but protested the searching factual review that the majority undertook because, in his view, it “exceeds the proper scope of clear-error review” and was unnecessary to resolve the case. It is worth noting that the bulk of the Thomas dissent argues against the Court’s involvement in racial gerrymandering cases altogether. Within that stance, Thomas criticizes a “boundless view of equitable remedies” that he traces to fallout from Brown v. Board of Education and the decision’s “impatience with the pace of discrimination,” seemingly treating that as an original sin, which may have been justified at the time but that has brought about “extravagant uses of judicial power” well beyond the “Framers’ design.”

Justice Kagan’s dissent mounted more withering criticism, starting with the majority’s portrayal of the plaintiffs’ evidence in only the “sketchiest of terms.” She pointed out that evidence established that the software used by the mapmakers was configured to show how any change in the district lines affected the district’s racial composition and achieved “to the decimal point” the exclusion of African-American citizens to accomplish their partisan goals. Perhaps more importantly for appellate advocates, she accused the majority of abandoning the clear-error standard that substantially defers to plausible factual findings, by choosing the evidence that supports its preferred outcome, “ignores or minimizes less convenient proof,” and errs in its reading of expert opinions, while asserting a better understanding of the evidence than did the three-judge district court.

Kagan’s critique also asserts that the majority’s new clear-evidence rule defers, not to the district court, but to the losing defendant because the majority interposed a presumption that legislatures act in good faith. She adds that the alternative-map requirement constitutes a new invention by the majority, in whose absence an adverse inference is drawn “no matter how much proof of a constitutional violation [plaintiffs] otherwise present,” describing this as judicial “micro-management of a plaintiff’s case . . . elsewhere unheard of in constitutional litigation.” She then suggests that the majority opinion is an adoption of Justice Alito’s dissent from Cooper so that the “dissent becomes the law.” Only in that dissent, she points out, did an alternative map requirement receive support before. She also lambasted the majority for reformulating her own majority opinion in Cooper.

The bottom line outside the context of gerrymandering cases is that the majority endorsed a more powerful review of evidence by appellate courts, particularly when legal presumptions exist that support the appellant, creating a level of deference to their evidence over that found by the district court. Any advocate seeking clear-evidence review should now search for favorable presumptions that would support greater appellate scrutiny of the evidence.

A Font by Any Other Name Does Not Read the Same

Last week, I argued a case in the Tenth Circuit, my first time in that court. Upon arrival in the courtroom, but before that day’s arguments began, the bailiff provided a quick tutorial about how the 15 minutes of oral argument works. A computer display screen to the left of the podium counted down time from 15:00 against a green background at the beginning of each argument. At three minutes remaining, the background screen would become yellow, alerting counsel to the opportunity to reserve some of the remaining time for rebuttal. The bailiff warned that the court likely would continue asking questions even after the request for rebuttal time. In one of the cases before mine, the questions continued one minute past the 15 minutes, but the court afforded the advocate an extra minute for rebuttal.

In every circuit I have appeared other than the Tenth, and I have argued cases in seven other circuits, an advocate asks for a certain amount of time for rebuttal in advance of the argument, either from an inquiry from the clerk’s office well in advance of the argument, or upon checking in that morning. The most frequent amount of time requested in a 15-minute argument is five minutes.

The differences between circuits on that question and others seem odd and haphazard. I was reminded of those differences when I came across a post that laid out different fonts used by different courts in their opinions. The First and Fourth Circuits issue opinions in Courier. The Second and Seventh Circuits utilize Palatino. The Fifth Circuit favors Century Schoolbook, as does the Supreme Court (although its orders are rendered in the very odd Lucida Sans Typewriter) and the Federal Circuit. The rest, the Third, Sixth, Eighth, Ninth, Tenth, and Eleventh rely on Times New Roman.

The circuits do not necessarily require counsel to follow suit in their briefs. Federal Rule of Appellate Procedure 32(a)(5) requires courts of appeal to accept briefs in any proportional typeface so long as the text’s typeface has serifs and is at least 14-point in size, but sans-serif type may be used in headings and captions. If a monospaced face is used, it may not contain more than 10 1/2 characters per inch.

Even so, the D.C. Circuit issued a notice in 2021 that encourages the use of typefaces that are easier to read, such as Century or Times New Roman, while discouraging the use of Garamond, which the court deemed less legible because it is smaller. The preference exists in the practice handbook, but not in the local rules, strongly suggesting that it is always a good idea to check those official handbooks as well as the court’s own rules, even though the court will still accept other typefaces.

The Seventh Circuit’s practitioner handbook discusses the readability of serif-type fonts and appears to suggest that Century Schoolbook, Baskerville, Bookman, Caslon, Garamond, Georgia, and Times, as well as variations on those names, are preferred serif-type fonts. The Eighth Circuit, under a tab entitled “Rules and Procedures,” has a section called “Research Aids” that links to the Seventh Circuit’s handbook, so it apparently endorses its sister circuit’s discussion.

And don’t get me started on the requirements for cover pages, where the Second Circuit is a major outlier.

The bottom line is that every circuit has its quirks that a practitioner appearing in them needs to understand. These circuit conflicts will not likely arrive at the Supreme Court to resolve.

Absolute Presidential Immunity as an Appellate Strategy

On April 25, the Supreme Court will hear oral argument in Trump v. United States, the case in which former President Trump’s lawyers will argue, among other things, that a president has absolute immunity from the criminal charges that covers every action of a president. In this instance, they claiming that Trump was advancing electoral integrity when he urged supporters to go to the Capitol on January 6, 2021, which resulted in violence that temporarily halted the tallying electoral votes so that Joseph Biden could take office as the incoming president.

The assertion of absolute immunity may seem incredulous as a strategic choice. Rare is the instance that an appellate advocate should elect to argue the most extreme position possible, particularly when the argument has no textual anchor, no precedential support, and obvious counterarguments. To place a president entirely above the law suggests that the American Revolution, the Constitution, and tradition renders the chief executive a king who wield every possible prerogative and can do no wrong, when we have been taught that the opposite is true.

During argument before the D.C. Circuit, one judge asked whether the president could order Seal Team 6, the elite unit of Navy Seals, to assassinate a political rival. Counsel responded that only impeachment and not criminal prosecution was available under that hypothetical. Judges and the public, expectedly, reacted harshly to that extreme and indefensible position.

The question then, from an advocacy perspective, is why adopt it? Certainly, there are times when a court splits the difference between the positions taken by the two parties, so that the party advocating the most extreme position, as in a negotiation, pulls the center closer to its view. Other times, a position is presented, not to prevail, but to plant a seed that may sprout at a later time. A powerful separate judicial opinion that seeks to justify the position in some instances provides an opportunity to fight another day and to generate more debate and scholarship in favor of the position.

In the Trump case, I doubt that either of these potential outcomes are what his counsel has in mind. Neither is likely to accomplish their client’s current need: the end of the prosecution. Instead, the argument fuels their delay stratagem, which hopes that the trials take place at a time when President Trump can make a triumphant return to the White House and order the Justice Department to drop the prosecutions, or that a defeated candidate who is no longer a threat receives a pardon or other beneficence from the victor to avoid the spectacle of a former president in prison. Still, the argument might produce language, helpful to a defense, about what constitutes the outer boundaries of official action, where the doctrine of qualified immunity provides some guidance.

I expect that this last point is why Trump’s counsel has argued that every act as president is an official act. This argument seeks to goad the Supreme Court into laying down criteria for evaluating when a president is engaged in an official act. Any guidelines are likely to be vague, creating room for exploitation when and if a case goes to trial. While election integrity sounds like official action, the presidency has no specific responsibilities on that issue and exhorting private citizens to march on the Capitol to keep an eye on Congress hardly sounds like official action in support of fair elections.

Still, it is worth noting that the absolute-immunity argument is not counsel’s untethered invention. It borrows from and seeks application of language adopted by the Supreme Court in Nixon v. Fitzgerald,[1] which held that former President Nixon was absolutely immune from private civil actions for “official conduct” even at the outer perimeter of presidential authority. In the case, a former air force employee sued the former president on a claim that Nixon had fired him over his whistleblowing testimony before Congress. The Court reasoned that a failure to immunize presidential actions would encourage lawsuits aimed at presidential actions to a degree that would distract a president from the duties of office and chill presidential choices to an extent that would “render an official unduly cautious in the discharge of his official duties.”[2] Although the Court took pains to distinguish criminal cases because of their greater public interest and importance, that type of marker can erode over time.

Notably, the Court found no distraction issue in 1997 when it held that then-President Clinton had no immunity from a lawsuit involving sexual allegations that predated his presidency in Clinton v. Jones.[3] Key to the decision was that the allegations concerned private actions unrelated to the exercise of presidential power, thus not creating a concern that it would induce hesitancy about official duties.

While I doubt that the absolute-immunity gambit will work in its purest form, Supreme Court decisions often create new issues that become fodder for future cases or arguments in the same case. In United States v. Nixon,[4] the Court unanimously held that the president could not claim executive privilege to avoid the Watergate special prosecutor’s subpoena for presidential audio tapes. Still, in the course of rejecting the executive-privilege argument, the Court gave executive privilege a firmer foundation than it had ever commanded before. Expect the same for presidential immunity in the opinions that come out of Trump v. United States.

 

[1] 457 U.S. 731 (1982).

[2] Id. at 752 n.32.

[3] 520 U.S. 681 (1997).

[4] 418 U.S. 683 (1974).

Attack the Reasoning, not the Judge

In her post Be Accurate in Your Case Citations, Professor Dysart mentioned two things that she emphasizes when she talks to attorneys and students about professionalism in appellate advocacy. First, the importance of accurately representing case law and the record. (Her post focused on this point.) Second, the importance of not attacking the lower court judge or opposing counsel. The latter point called to mind Sanches v. Carrollton Farmers Branch Independent School District.[1]

There, the appellant’s opening brief contained this paragraph:

The Magistrate's egregious errors in its failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur of the assignment to Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals of law are extraordinary.

This paragraph was of much interest to at least one judge on the panel. Appellant’s counsel spent the first five minutes of his fifteen minutes of oral argument time responding to questions about the attack on the magistrate judge’s competence. You can listen to the argument here: Sanches Oral Argument.wma. That time would have been better spent discussing the substance of the appeal.

The court’s PUBLISHED[2] decision called out the attack on the magistrate judge:

Not content to raise this issue of law in a professional manner, Sanches and her attorneys launched an unjustified attack on Magistrate Judge Stickney. The main portion of the argument on this point, contained in Sanches's opening brief, reads verbatim as follows:

The Magistrate's egregious errors in its [sic] failure to utilize or apply the law constitute extraordinary circumstances, justifying vacateur [sic] of the assignment to [sic] Magistrate. Specifically, the Magistrate applied improper legal standards in deciding the Title IX elements of loss of educational opportunities and deliberate indifference, ignoring precedent. Further, the Court failed to consider Sanches' Section 1983 claims and summarily dismissed them without analysis or review. Because a magistrate is not an Article III judge, his incompetence in applying general principals [sic] of law are [sic] extraordinary.

(Footnote omitted.)

These sentences are so poorly written that it is difficult to decipher what the attorneys mean, but any plausible reading is troubling, and the quoted passage is an unjustified and most unprofessional and disrespectful attack on the judicial process in general and the magistrate judge assignment here in particular. This may be a suggestion that Magistrate Judge Stickney is incompetent. It might be an assertion that all federal magistrate judges are incompetent. It could be an allegation that only Article III judges are competent. Or it may only mean that Magistrate Judge Stickney's decisions in this case are incompetent, a proposition that is absurd in light of the correctness of his impressive rulings. Under any of these possible readings, the attorneys' attack on Magistrate Judge Stickney's decisionmaking is reprehensible.[3]

But the court didn’t stop there, it also called out the errors in the appellant’s brief:

Usually we do not comment on technical and grammatical errors, because anyone can make such an occasional mistake, but here the miscues are so egregious and obvious that an average fourth grader would have avoided most of them. For example, the word “principals” should have been “principles.” The word “vacatur” is misspelled. The subject and verb are not in agreement in one of the sentences, which has a singular subject (“incompetence”) and a plural verb (“are”). Magistrate Judge Stickney is referred to as “it” instead of “he” and is called a “magistrate” instead of a “magistrate judge.” And finally, the sentence containing the word “incompetence” makes no sense as a matter of standard English prose, so it is not reasonably possible to understand the thought, if any, that is being conveyed. It is ironic that the term “incompetence” is used here, because the only thing that is incompetent is the passage itself.[4]

Yikes!

Attacking the lower court judge is not just poor advocacy that damages your reputation and your client’s case, it also may subject you to disciplinary action. The Model Rules of Professional Conduct say that “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer . . . .”[5] So, attack the reasoning, not the judge.

 

[1] 647 F.3d 156 (5th Cir. 2011).

[2] Professor Dysart’s post also noted that the decision she discussed was published. Be Accurate in Your Case Citations.

[3] Sanches, 647 F.3d at 172.

[4] Id. at n.13.

[5] ABA Model Rule of Professional Conduct 8.2(a).

And or Or

Statutory construction figures in many appeals. Despite well-known canons that guide courts in interpreting statutes, advocates and courts frequently dispute a written law’s meaning. The overarching principle used in both federal and state courts seeks to read a statute to reflect the intent of the legislature that enacted it. To determine legislative intent, precedent advises that the law’s text, read as a whole, is the best indicia of what the enacting body intended. In taking a textualist approach, courts attempt to read the words of a statute in their ordinary meaning, absent some indication that the words have a technical meaning or are used as terms of art.

When a plain-meaning approach does not resolve ambiguities in the text, courts often resort to legislative history, hoping to derive an answer from hearings, reports, and legislators’ remarks. One example of particular contention is the legislative use of “and” or “or.” The controversy over their usage has given rise to what is called the conjunctive/disjunctive canon. The canon holds, as one might assume, that the use of “and” is conjunctive, which means that the items in a list are joined. The use of “or” is disjunctive, which tells you that the items in a list are alternatives. Yet, nothing is as simple as that might seem to make it because lists can include negatives, plurals, and other phrases that create ambiguities.

In 2018, Congress enacted a criminal justice reform called the “First Step Act.” Among other things, it created criteria that would allow avoidance of mandatory minimum sentences. To apply this safety valve, a court must, in addition to other criteria, find:

        the defendant does not have--

                (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;

                (B) a prior 3-point offense, as determined under the sentencing guidelines; and

                (C) a prior 2-point violent offense, as determined under the sentencing guidelines.

In Pulsifer v. United States, decided on March 15, the Supreme Court grappled with what had baffled the circuit courts: must all three conditions be met as signified by the word “and,” or should the “does not have” that introduces the list indicate that A, B, and C are alternative qualifications.

The government argued to the Court that the requirements mean that a defendant with any one of the disqualifying criteria was ineligible for the leniency the law granted, as though it read A or B or C. The defendant arguing the use of and was conjunctive, argued that the law only disqualified a defendant if the record reflected all three at the same time.

A six-member majority sided with the government, but the line-up was a bit unusual. Justice Kagan wrote for a majority that included Chief Justice Roberts and Justices Thomas, Alito, Kavanaugh, and Barrett. Justice Gorsuch authored a dissent, joined by Justices Sotomayor and Jackson.

The majority said that there were “two grammatically permissible ways to read” the provision, so that either the government’s or the defendant’s might be plausible. However, grammatical rules alone could not answer the Question Presented, because the language had to be read in context. In other words, reliance simply on the conjunctive/disjunctive canon would be misplaced.

Invoking an example from the children’s book, The Very Hungry Caterpillar, Justice Kagan explained that sometimes in a series is joined by a single verb so when the caterpillar “ate through” a number of food items we understand that each listed food had a hole through which the caterpillar traveled. She then states that when a person says, “I’m not free on Saturday and Sunday,” . . . he most likely means “I’m not free on Saturday and I’m not free on Sunday.” What the person does not mean is that he is only available “one of those days,” but the entire weekend.

However, the inclusion of “does not have” at the top of the list “refers independently to crimes satisfying (1), crimes satisfying (2), and crimes satisfying (3)—not to whatever crimes manage to satisfy (1), (2), and (3) all at once.” Thus, even if Congress could have framed the criteria more clearly, the majority resolved the issue by determining that Congress could not have created an exception that swallowed the rule, but that recognized ineligibility for a more lenient sentence based on the seriousness of the offense. That sensible view, the majority surmised, is reflected in the government’s favored interpretation.

Justice Gorsuch’s lengthy dissent largely applies the conjunctive/disjunctive canon, refusing to rewrite the statute from its plain text where “or” must mean “or.”

Although the decision resolves the meaning of the First Step Act, both sides have provided advocates with ample argument points the next time legislation is less than translucent.

Oral Argument and Proper Preparation

Briefing, rather than oral argument, makes the difference, the common wisdom holds. While an excellent oral argument may not win a case, the assumption is that an exceedingly poor one might lose a case, unsettling what the judges had thought established by the briefs and caselaw. When the briefs establish a powerful case for one side or the other, a prepared court will use oral argument to explore the limits to that argument or the consequences of accepting the principle put forth. Yet, in a rare case, the briefing from both sides may be too good and the relevant precedents may pull equally in opposite directions. In those cases, the decision may rest on the presentation of the argument and the advocates’ responses to questions.

I emphasize “may” in that last sentence because a court may balk at picking between competing lines of precedent, choosing instead a theory that neither party has raised. A classic example of that is Mapp v. Ohio,[1] the  1961 ruling that applied the exclusionary rule for illegally seized evidence to the States.  The case entered the Supreme Court as a First Amendment issue. Police had mistakenly entered Dollree Mapp‘s apartment without a warrant, while searching for a person wanted in connection with a bombing. They apparently had the wrong apartment, mistakenly entering Mapp’s second-floor apartment, when the apartment they sought was on the first floor. When police came up empty on evidence related to the bombing, they continued the search while hoping to find something that would support a criminal charge. Finally, they found a trunk that contained a French sex book and nude sketches. Mapp was charged with possession of obscene materials. Although the case was briefed and argued as a First Amendment case, it left the Court as a landmark Fourth Amendment decision.

Advocates cannot and should not hope that a court will do the work for them. They must provide the judges with the tools that will bring about a favorable ruling. It means being prepared regardless of the direction the case takes. In the short handbook for counsel arguing cases in the Supreme Court that is provided to counsel, there is a telling example of how an advocate should even know his client’s business beyond what the case may involve. The case involved an issue of commercial speech. While arguing that his client had a First Amendment right to indicate the alcohol content of its beer on the label despite a prohibition in government regulations, the late Bruce Ennis was asked by a justice about the difference between beer and ale. Without missing a beat, despite the irrelevant nature of the question, Ennis provided a simple and satisfying answer.[2] Although the answer had nothing to do with the merits or the result, Ennis prevailed[3] – and made a very good impression on the Court for that answer to be included in its guide to advocates.

The need for preparation hit home for me again this past week, when I argued a case involving the constitutionality of a state statute in a state trial court. I had a principal argument in which I had great confidence but was prepared with several different back-up arguments that would achieve the same result if the court did not agree with the approach I opened with. My opponent had moved to dismiss the case, arguing that the plaintiffs were relying on a new, but unconstitutional change to the statute of limitations. The judge was well-prepared and had clearly read the briefs and cases thoroughly. She asked good questions of both of us. While opposing counsel presented his rebuttal, she asked him whether he had an alternative argument if she did not find his primary argument convincing. He seemed surprised that he needed one. It became clear that he had put all his eggs in one basket. After a two-hour morning argument, the judge returned that afternoon to the bench (having warned us she would) and ruled in my favor on my primary argument. Perhaps no backup argument would have derailed that train, but it seems as though at least one should have been advanced. Obviously, the briefs had made the difference, but oral argument could have provided more food for thought and perhaps some doubt about the proper result.

N.B.: a trial judge has an advantage in providing a quick, dispositive ruling that can be announced from the bench, as I experienced in the case described above. Even when there is an appellate panel, the court’s view may be obvious and reflected in a rapidly issued decision. Last year, the Seventh Circuit treated me to one very quick and favorable decision within weeks of the argument, where the court had made its unanimous view very clear. On the other hand, appellate courts can inexplicably drag their feet in deciding cases. This past Friday marked the two-year anniversary of an oral argument in a state intermediate appellate court, where I am still awaiting a decision.

 

[1] 367 U.S. 643 (1961).

[2] Supreme Court of the United States, Guide for Counsel in Cases to be Argued before the Supreme Court of the United States 6-7 (Oct. Term 2023), available at https://www.supremecourt.gov/casehand/Guide%20for%20Counsel%202023.pdf.

[3] Rubin v. Coors Brewing Co., 514 U.S. 476 (1995).

Using Verbs to Help Avoid Bias under ABA Model Rule 8.4(g)

As many know, I push students to avoid passive voice as a way to increase clarity.  We can also use careful verb choice to help remove bias.  Under ABA Model Rule 8.4(g) (2016), “It is professional misconduct for a lawyer to” engage in biased conduct, including “discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law.”  Comment 3 explains “[s]uch discrimination includes harmful verbal or physical conduct that manifests bias or prejudice towards others.”  See https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_8_4_misconduct/?login

In my classes, we discuss recognizing express and implicit bias, and then I suggest some concrete ways to help avoid bias in our legal writing.  One concrete way to eliminate bias is to choose verbs carefully. 

We know from social science that our verbs matter.  For example, in 1974 Loftus and Palmer published their famous study on eyewitness suggestion via verbs.  See https://www.simplypsychology.org/loftus-palmer.html.  Loftus and Palmer divided 45 students into 5 groups, asked them all to watch a video of a car crash, and then asked each group a slightly different question about the speed of the cars.  Loftus and Palmer manipulated the verb used in the question.  They asked the groups:  “How fast were they cars going when they smashed/collided/bumped/hi /contacted?”  Id.  Participants who heard “smashed” reported an average speed of 40.5 mph, while participants who heard “contacted” reported an average speed of 31.8 mph.  Id.  In other words, the eyewitnesses to the video crash responded to the verbs used by others to describe the crash.

When we hide the actor connected to our verbs, through passive voice, we can manipulate meaning even more.  See Robert C. Farrell, Why Grammar Matters: Conjugating Verbs in Modern Legal Opinions, 40 Loy. U. Chi. L.J. 1, 13-14 (2008).  For example, saying an “enslaver often withheld foods from the enslaved people on his plantation” has a very different meaning than “sometimes, enslaved people were not given food.”  When we use the passive voice about enslavers in my example, we are presenting a biased view of reality by not naming the actor who withheld food.  Thus, by removing the passive verb construction, we also decrease bias. 

Case law also shows how passive voice can create issues.  For example, in United States v. Zavalza-Rodriguez, 379 F.3d 1182, 1183 (10th Cir. 2004), the outcome turned on two competing provisions of the Federal Sentencing Guidelines.  The first provision used passive voice and allowed for a sentence enhancement “if a dangerous weapon” “was possessed.”  Id. at 1183-84.  The second clause allowed for a sentence reduction, under the active voice, if “the defendant” did not “possess a firearm or other dangerous weapon” in “connection with the offense.”  Id. The government argued because the defendant stipulated in plea agreement that a weapon “was possessed” under the first of these provisions, he could not assert he had not “possessed” a weapon under the second.  Id. at 1185. 

The Court of Appeals disagreed, noting, “[u]nder the first enhancing provision, the verb was ‘written in the passive voice, requiring a sentence enhancement “if a dangerous weapon (including a firearm) was possessed.”’  Id.  According to the court, “[t]his verb form did not identify who was doing the possessing and thus was broad enough to cover situations of ‘mere proximity’ to a weapon by a defendant, without a showing of ‘active possession.’”  However, “the verb form in the second, mitigating section, ‘did not possess . . . a firearm,’ is in ‘the active voice[,] requiring the defendant to do the possessing,’ or more accurately, requiring the defendant not to do the possessing.”  Id. at 1186-87.

Hopefully, these ideas will resonate with us as we do our best to avoid any express or implicit bias in our writing.  The more we choose verbs and verb construction carefully, the better chance we have of clearly conveying points for our clients in an unbiased way.

Reflections on the Supreme Court’s Oral Argument in Trump v. Anderson

The oral argument in Trump v. Anderson indicated that the United States Supreme Court would reverse the Colorado Supreme Court’s decision disqualifying Donald Trump from the ballot.[1] In fact, the Court’s decision will likely be unanimous for three reasons.

1.    Affirming the Colorado Supreme Court's decision would enable states to disqualify different candidates and thus create a lack of uniformity among the states regarding which candidates voters could select. 

If the Supreme Court affirmed the Colorado Supreme Court’s decision, then Texas and other conservative states could disqualify President Biden from the ballot based on whatever subjective definition of insurrection they adopted, while liberal states could likewise disqualify Donald Trump. Imagine living in a world where, for example, ten states prohibited its citizens from voting for Trump while eight states prohibited its citizens from voting for Biden. Such a result would disenfranchise millions of voters and, as Chief Justice Roberts stated, enable a handful of states to decide the presidential election. Nothing could be more anti-democratic, at “war with the thrust of the Fourteenth Amendment,” and anathema to a society that values free and fair elections.[2]

Indeed, the justices recognized that affirming the Colorado Supreme Court’s decision would be far-reaching and fundamentally anti-democratic. For example, Justice Alito asked Jason Murray, the respondent’s attorney (and an outstanding lawyer), whether a state court could exclude from the ballot a presidential candidate that the court did not prefer simply because the candidate was leading in the polls. Murray answered in the affirmative – and that all but sunk Colorado’s argument.

The justices also suggested that the Colorado Supreme Court’s decision was contrary to the Fourteenth Amendment’s original purpose. As Chief Justice Roberts emphasized, the Fourteenth Amendment was designed to expand federal power and restrict state power. Thus, to conclude that the states have the power to disqualify federal candidates – particularly where the disqualification is predicated on an ambiguous provision – would be incongruous with the Fourteenth Amendment’s original purpose. For these and other reasons, Justice Kagan and Justice Barrett suggested that the question of whether a former president is disqualified for insurrection “sounds awfully national,” which is consistent with Section Five’s text, which gives Congress, not the states, the power to implement Section Three, and with the principle that there be uniformity among the states regarding who voters may select for president.[3]   

2.    Section Three of the Fourteenth Amendment is ambiguous and should not be construed to frustrate democracy.

Justice Kavanaugh and Justice Jackson explained that, unlike the Constitution’s age and nationality requirements, which are categorical and unambiguous, Section Three was susceptible to different interpretations and therefore should not be construed in an anti-democratic manner. For example, Justice Kavanaugh noted that the word “insurrection,” is broad and that Section Three contained no information concerning the procedures needed to determine whether a president was an insurrectionist. Likewise, Justice Jackson expressed concern that the President of the United States may not be an “officer of the United States” because the plain language of Section Three does not include the word “President,” therefore suggesting that the president is not within Section Three’s purview.

Given the fact that Section Three is ambiguous, why, as Justice Kavanaugh and Justice Jackson emphasized, should the Court reach an outcome that frustrates rather than facilitates democratic choice? And how should the Court resolve the issue regarding a candidate’s disqualification if states adopt different definitions of “insurrection,” adopt different evidentiary rules, and adopt different standards of proof? Colorado’s attorneys had no satisfactory answer.

3.    Affirming the Colorado Supreme Court’s decision would enable one state to decide a presidential election.

Justice Kagan rightly emphasized that, if the Court affirmed the Colorado Supreme Court’s decision, one state (or a handful, as Chief Justice Robers noted) could decide the presidential election. To be sure, some if not many states would subsequently disqualify Trump from the ballot, making the Colorado Supreme Court the primary decision maker in the presidential election. Additionally, imagine if a presidential election was remarkably close and would be decided by the outcome in one state, but that state had disqualified Donald Trump from the ballot. This would give the presidency to Trump’s opponent and disenfranchise every voter in that state who supported Trump. Of course, some state courts could decide to distinguish the Colorado Supreme Court’s decision and therefore keep Donald Trump on the ballot, but even under this scenario, there would exist precisely the disuniformity that would compromise democratic choice.

Ultimately, the oral argument in Trump v. Anderson suggests that the Supreme Court will unanimously reverse the Colorado Supreme Court’s silly decision.

What was most disappointing was to see well-respected constitutional law scholars, such as J. Michael Luttig, a former judge on the United States Court of Appeals for the Fourth Circuit, and Laurence Tribe, a professor at Harvard Law School, so vehemently advocating for affirmance of the Colorado Supreme Court’s decision. Judge Luttig argued that the decision was unassailable, that Section Three’s text was unambiguous, and along with Professor Tribe, that affirming the Colorado Supreme Court’s decision was vital to preserving democracy.[4] To make matters worse, these scholars relied heavily on the Report of the January 6 Committee, even though the January 6 hearings included only committee members that were biased against Trump and even though the committee adhered to none of the evidentiary standards that a trial – and due process – requires. The fact that Judge Luttig and Professor Tribe relied on this report and championed a decision by the Colorado Supreme Court that, given the text and history of Section Three, was so obviously wrong, is troubling.

Lest there be any doubt, imagine a world in which states could disqualify candidates based on different interpretations of Section Three, different evidentiary standards, and different burdens of proof. The result would be to allow one or more states to determine the presidential election based on nothing more than disdain for a presidential candidate, and to disenfranchise millions of voters by prohibiting them from voting for their preferred candidate. That would be as anti-democratic as you can get.

Thankfully, the U.S. Supreme Court recognized this and is poised to unanimously reverse the Colorado Supreme Court’s silly decision. Democracy depends on them doing so – and they will.

 

[1] See Trump v. Anderson, Oral Argument, available at: Trump's 2024 ballot eligibility being weighed by Supreme Court | full audio (youtube.com)

[2] Id.

[3] Id.

[4] See, e.g., Enormously Important Protection of Democracy: Tribe and Luttig on CO Barring Trump from Ballot (Dec. 21, 2023), available at: ‘Enormously important protection of democracy’: Tribe & Luttig on CO barring Trump from ballot - YouTube

The Colorado Supreme Court's Silly Decision

Recently, the Colorado Supreme Court, in a 4-3 decision, held that former President Donald Trump was not eligible to remain on the ballot for Colorado’s upcoming primary.[1] While this article will not dissect every aspect of the Court’s decision, it will focus on the principal grounds for the decision, its effect on democratic choice and, its impact on the judiciary’s institutional legitimacy.

The Colorado Supreme Court based its decision on three findings.

First, the Court held that, under Section Three of the Fourteenth Amendment to the United States Constitution, Trump was an “officer of the United States.”[2] A reasonable argument can be made, however, that Trump is not an “officer of the United States” because the Fourteenth Amendment, while mentioning “Senator” and “Representative,” never mentions “President,” and the text lists federal officials in descending order from “Senator” to “Representative” to civil or military office holder. Additionally, an earlier draft of Section Three included the word “President,” but it was deleted and not included in the final version. Furthermore, the historical record suggests that Section Three applies to appointed, not elected, positions.[3] At the very least, one can argue that Section Three is ambiguous concerning whether the president is included in that section.[4] The point is not to say that the Colorado Supreme Court’s decision holding that Trump is an “officer of the United States” is meritless. It is to say, however, that the text is susceptible to alternative interpretations. In such a situation, the Court should reach an outcome that furthers, not hinders, democratic participation, and that enhances, rather than reduces, democratic choice. The four justices in the majority, all appointed by Democratic governors, chose the opposite path.

Second, the Court held that former President Trump “engaged in” an insurrection. Surely, the events on January 6, 2020, were disgraceful and a sad moment in our country’s history. Thousands of citizens stormed the Capitol Building, destroyed property, threatened lawmakers, and caused harm that resulted in five deaths.[5] As despicable as this conduct was, however, a reasonable argument can be made that Trump neither incited this violence nor engaged in an insurrection. To begin with, in Trump’s January 6 speech, he told protesters to march to the Capitol “peacefully and patriotically.”[6] This language alone makes it difficult to assert, under Brandenburg v. Ohio, that Trump incited imminent and unlawful violence.[7] Additionally, what precisely did Trump do that constitutes “engaging in” an insurrection? Yes, Trump encouraged his supporters to “fight like hell,” but he also told his supporters to march “peacefully and patriotically" and he did ultimately call for the protestors to “go home.”[8] Thus, a credible argument can be made that Trump never “engaged in” an insurrection. Additionally, Congress has already codified insurrection in 18 U.S.C. 2383, which requires a criminal conviction before one can be deemed an insurrectionist. Trump has never been charged with, much less convicted of, insurrection, and on February 13, 2021, the Senate acquitted Trump of this charge.[9] If Trump had been charged, he would have, at the very least, been afforded the due process protections that were so conspicuously absent in the lower court in Colorado. Given the above facts, particularly the dearth of fair procedures in the lower court (e.g., no discovery, inability to subpoena documents, and no opportunity for a fair trial), how could the Colorado Supreme Court possibly hold that Trump “engaged in” an insurrection, the result of which was to eliminate the leading Republican presidential candidate from the Colorado primary and thus undermine democratic choice? The answer should seem obvious – and that answer has nothing to do with the law or the Constitution.

Third, the Colorado Supreme Court held that Section Five of the Fourteenth Amendment, which states that “Congress shall have power to enforce, by appropriate legislation, the provisions of this article,” was self-executing and thus enabled the Court to adjudicate whether Trump engaged in an insurrection and could be disqualified from the ballot.[10] Certainly, one could argue that, in mentioning Congress in Section Five, the drafters did not mean to give Congress exclusive authority to enforce Section Three. But one could also argue that the text could not be clearer: only Congress has the power to enforce Section Three, which it did when enacting 18 U.S.C. 2383 and which, as stated above, requires a criminal conviction for insurrection – a crime for which Trump was never charged. Yet again, the Colorado Supreme Court ignored these facts and, unlike every state court that previously considered this issue, made the unprecedented and decidedly undemocratic choice to hold that Trump was disqualified from the ballot.[11]

Does it seem correct that the Constitution’s drafters believed that a state court could adjudicate a matter where the liberty interest at stake was so substantial yet the procedures for determining whether to deprive a citizen of that interest were so truncated? Of course not. This is particularly true considering that the district court's decision that Trump had engaged in an insurrection was based largely on the findings of the January 6 Committee, which selectively called witnesses, admitted hearsay evidence, and otherwise observed none of the procedural safeguards that a trial requires. Yet, at every turn, whether it was deciding if Trump was an “officer of the United States” or had “engaged in” an insurrection, or whether Congress had the exclusive authority to enforce Section Three, the Colorado Supreme Court ruled against Trump. In so doing, the Colorado Supreme Court made originalism its best friend even though its justices are anything but originalist. Convenience obviously trumped conviction.

As stated above, this is not to say that a particular interpretation of Sections Three and Five is superior to another. It is to say that when reasonably alternative interpretations of a constitutional text or statute are possible, courts should reach outcomes that promote democratic choice and participation.[12] Viewed in this light, the Colorado Supreme Court’s interpretation of the Fourteenth Amendment and resulting decision was entirely unreasonable. The courts in Michigan, Minnesota, Oregon, Nevada, and Rhode Island, which dismissed lawsuits that could have resulted in Trump’s disqualification from their respective ballots, got it right.[13] 

The Colorado Supreme Court could not have honestly believed that its decision preserved democratic choice or protected democracy. Furthermore, like any rational person, the Colorado Supreme Court – whose justices were all appointed by Democratic governors – must have known that its decision would be controversial, invite chaos and uncertainty into the electoral process, engender charges of partisanship and election interference, foment division, further erode public trust in the judiciary and rule of law, and fuel the belief that it was motivated by the desire to prevent Trump from regaining the presidency. After all, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone believe that the Colorado Supreme Court would have reached the same result? If you believe that the answer is yes, you probably also believe that Letitia James and Fani Willis (whose days prosecuting Trump may soon be numbered), acted impartially and with reverence for the law when they sought indictments against Trump based on tenuous legal theories, and in jurisdictions that are so overwhelmingly liberal that a fair trial is a fantasy.  Additionally, the Colorado Supreme Court surely must have known that the United States Supreme Court would almost certainly overturn its decision, particularly on due process grounds.

Given these facts, and given that the provisions upon which the Colorado Supreme Court’s decision was based were subject to alternative and equally reasonable interpretations, how could the four democratically appointed justices have thought this decision was a good idea? How could they believe that, in an era where some believe that democracy is “at risk” and “on the ballot,” this decision would not engender claims that it was an anti-democratic and politically motivated attempt to eliminate Trump from the presidential race? The truth is that the majority engaged in politics, not law, and was motivated by emotion, not reason. They were striving to find any path, however implausible, to reach an outcome that was pre-determined and fundamentally dishonest.

Not surprisingly, the usual suspects, including some law professors (the vast majority of whom are overwhelmingly liberal) and mainstream legal commentators, such as former Trump apologist George Conway, who believes Trump should spend the rest of his life in prison, have come out of the woodwork to support the Colorado Supreme Court.[14] Whether through law review articles, poorly written amicus briefs, or media interviews, these “experts” often use fancy words and legalese to create the veneer of objectivity and the pretense of neutrality when their motivations are anything but neutral or objective. And like the Colorado Supreme Court, these “experts,” who consistently criticize originalism in favor of “living constitutionalism,” have suddenly adopted originalism to support their arguments, even though they have spent much of their careers criticizing originalism – and Justice Antonin Scalia – as “racist,” “oppressive,” and a threat to those who value victimhood. Ultimately, one should be wary of individuals whose arguments so conveniently coincide with their personal beliefs.

Make no mistake: a political agenda that is rooted in a dysfunctional hatred of Trump and a disregard for the very democracy they claim to want to preserve and protect motivates these “experts.” As stated above, if this case involved Hillary Clinton, Barack Obama, or Joe Biden, does anyone really think that Harvard Law Professor Laurence Tribe or any of the law professors who submitted amicus briefs in support of the Colorado Supreme Court's decision would take the same position? Of course not. And for those liberal scholars who chastise Trump for claiming that the 2020 presidential election was “stolen,” recall how vehemently some of these scholars questioned the result in Florida after the 2000 presidential election, and how they trashed the Supreme Court when the majority did not rule in favor of Al Gore. Likewise, remember when Stacey Abrams said after her loss in 2019, “[d]espite the final tally and the inauguration … I do have one very affirmative statement to make. We won.”[15] Also, one cannot forget Hillary Clinton repeatedly claiming that Trump was an illegitimate president.[16] These comments sound eerily like Donald Trump, don’t they? 

It should come as no surprise that the public has lost faith in the judiciary and our academic institutions. Sadly, the Colorado Supreme Court’s decision is only the tip of the troubling iceberg. In Dobbs v. Jackson Women’s Health, the U.S. Supreme Court decided to overturn a nearly half-century precedent – Roe v. Wade – because the political affiliations of the justices had changed, with Justice Amy Coney Barrett replacing Justice Ruth Bader Ginsburg and Justice Brett Kavanaugh replacing Justice Anthony Kennedy.[17] And in Students v. Fair Admissions v. Harvard, the Court, once again armed with two new Republican-appointed justices, suddenly discovered that affirmative action programs were unconstitutional.[18]  In both cases, the justices were neatly and predictably split along ideological lines. In other words, the Constitution’s meaning is contingent upon the party affiliations of the justices.

The health of this country and its institutions is deteriorating. Citizens used to revere our public institutions, including state and federal courts, particularly the Supreme Court, admire professors for teaching and mentoring young people, and look to the media to report accurately and objectively on public events. People used to believe that intelligence trumped ideology, and that integrity trumped indoctrination. That is no longer the case. Donald Trump has exposed what lies behind the curtain of the institutions and academies that we once considered hallowed ground: dishonesty, ideological uniformity, hypocrisy, and intolerance. If you doubt this, walk into some law schools, and ask to meet with a conservative professor. You might get arrested, charged with a microaggression, and ordered to undergo “anti-bias” training (which studies have shown does not work). Try to give a presentation about originalism at a law school and you might get shouted down by a mob of entitled, hyper-sensitive, and narcissistic students whose intelligence is eclipsed by their ideology. Indeed, some academic institutions focus more on indoctrinating students than teaching them critical thinking and writing skills, and welcoming diverse perspectives in the classroom.[19]

And they often show a shocking disregard for the very diversity, inclusion, and “safe spaces” that they claim to champion. For example, who would have thought that, at a congressional hearing in December 2023, the presidents of Harvard, MIT, and the University of Pennsylvania would fail to unequivocally and without hesitation condemn campus speech that called for the genocide of Jewish people? Who would have imagined that a law student at NYU – the president of the Student Bar Association – would be seen tearing down posters depicting the tragic loss of life to Israeli citizens and that administrators at various colleges would fail to immediately condemn Hamas’s despicable attack on Israel? Yet these are the same people who preach diversity and inclusion. It’s a disgrace, and the divisiveness that courts, the media, and academia have fomented in this country is nothing short of tragic. Civil disagreement is a vestige of the past, and collegiality is an aspiration, not a reality. Arrogance has taken precedence over humility, and hypocrisy has replaced honesty.

The United States Supreme Court will almost certainly overrule the Colorado Supreme Court’s decision – perhaps unanimously – and the Court will likely rely on, among other things, the lack of procedural due process afforded to Trump. In so doing, the Court should emphasize that the people, not the courts, should decide who becomes the next President of the United States. And if the people elect Donald Trump, so be it. It is preferable to have the people elect a candidate that you do not support than to have a court enable through dishonest means the election of a candidate that you do support.

After all, you believe in democracy, don’t you?

[1] See Anderson v. Griswold, available at: 23SA300.pdf (state.co.us)

[2] See U.S. Const., Amend. XIV, Section 3.

[3] See Trump v. Anderson, Amicus Brief, amicus brief of Johs Blackmun amicus brief) available at: 20240109145107356_23-719 Amicus Brief Professors Barrett and Tillman Final.pdf (supremecourt.gov)

[4] See Trump v. Anderson, Amicus Brief of Kurt T. Lash, available at: 20240116095552269_23-719 tsac Lash.pdf (supremecourt.gov)

[5] See Jack Healy, The Are the Five People Who Died in the Capitol Riot (Jan. 11, 2021), available at: These Are the People Who Died in the Capitol Riot - The New York Times (nytimes.com)

[6] See Brian Naylor, Read Trump’s Jan. 6 Speech, a Key Part of Impeachment Trial (Feb. 10, 2021), available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[7] See Brandenburg v. Ohio, 395 U.S. 444 (1969).

[8] See Naylor supra note 6, available at: available at: Transcript Of Trump's Speech At Rally Before Capitol Riot : NPR

[9] See Anderson, supra note 1, available at: available at: 23SA300.pdf (state.co.us) (Samour, J., dissenting).

[10] See id.

[11] See id.

[12] See, e.g., Justice Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution (Vintage, 2006).

[13] See Lawfare, Tracking Section 3 Trump Disqualification Challenges, available at: Trump Disqualification Tracker | Lawfare (lawfaremedia.org)

[14] See Ed Mazza, George Conway Slams Trump With All-Too-Blunt Prison Prediction (Jan. 10, 2024), available at: George Conway Slams Trump With Blunt Prison Prediction | HuffPost Latest News

[15] See Alex Schemmel, Tacey Abrams Says She ‘Never Denied the Outcome’ of 2018 Election Despite Past Claims (Oct. 5, 2022), available at: Stacey Abrams says she 'never denied the outcome' of 2018 election despite past claims | WPDE

[16] See CNN, Hillar Clinton Calls Trump ‘Illegitimate President,” available at: Hillary Clinton calls Trump 'illegitimate president' | CNN Politics

[17] 597 U.S. 215 (2022)

[18] 600 U.S. 181 (2023)

[19] See Eric Kaufmann, We Have the Data to Prove It: Universities are Discriminating Against Conservatives (March 5, 2021), We Have the Data to Prove It: Universities Are Discriminating Against Conservatives | Opinion (newsweek.com)

Appellate Advocacy Blog Weekly Roundup Friday, January 19

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

SCOTUS Opinions and News:

• On Tuesday, the Court declined to accept an appeal from Indiana's Martinsville metropolitan school district seeking to have the Court rule that school districts could limit access to bathrooms by transgender students.  The case was brought in 2023 and the trial court and the Seventh Circuit Court of Appeals eventually ruled in favor of the transgender boy plaintiff, granting his request to be allowed to use the boys' bathrooms in the school.  The Court declined to take the case without further explanation.
  • Guardian article:  https://www.theguardian.com/law/2024/jan/16/us-supreme-court-case-bathroom-transgender-students-indiana
  • Courthouse News article:  https://www.courthousenews.com/supreme-court-wont-hear-fight-over-transgender-bathrooms/
  • Reuters Article:  https://www.reuters.com/legal/us-supreme-court-snubs-fight-over-transgender-student-bathroom-access-2024-01-16/

• On Wednesday, the Court heard oral argument in combined cases involving the extent to which courts should give deference to federal administrative agencies in interpreting the law those agencies administer, implicating the future of the longstanding Chevron deference doctrine.
  • SCOTUSblog preview of arguments:  https://www.scotusblog.com/2024/01/supreme-court-to-hear-major-case-on-power-of-federal-agencies/
  • Bloomberg preview article:  https://www.bloomberglaw.com/bloomberglawnews/us-law-week/X2CM43GS000000?bna_news_filter=us-law-week#jcite
  • Law.com review of arguments:  https://link.law.com/public/34035705
  • SCOTUSblog analysis of arguments:  https://www.scotusblog.com/2024/01/supreme-court-likely-to-discard-chevron/

 

Federal Appellate Court Opinions and News:

 

• U.S. Court of Appeals for D.C. Circuit issued an order denying rehearing en banc of a prior order denying Donald Trump's attempt to restrict Special Counsel Jack Smith's access to Twitter archives of Trump's Twitter feed.
• Fox News Article:  https://www.foxnews.com/politics/federal-appeals-court-rejects-trump-petition-special-counsel-jack-smith-access-twitter-feed
   
• D.C. Circuit Court Order:  https://www.cadc.uscourts.gov/internet/opinions.nsf/B8BAD4AB171DABF285258AA6005D0173/$file/23-5044-2035679.pdf
   

Appellate Practice Tips:

 

• Fifth Circuit appellate practitioner and frequent #AppellateTwitter poster Raffi Melkonian (https://twitter.com/RMFifthCircuit) had a thread this week discussing some thoughts for those seeking to have their practice focus on appellate practice:   https://twitter.com/RMFifthCircuit/status/1747670455069061280

Appellate Jobs:

• The New Mexico Supreme Court is hiring a full-time law clerk.  You can find the job announcement on the court's website:  https://www.nmcourts.gov/careers/  (HT Emil Kiehne on Twitter – https://twitter.com/EmilKiehne)

Don’t Overlook Credibility as a Key Factor in Your Reply Brief

Reply briefs provide an advocate with a welcome opportunity to recapture the momentum established in the opening brief. A good opening brief makes a powerful case for your position that, standing alone, ought to spell success. Your opponent’s response brief follows by seeking to arrest the gravitational pull of your opening arguments and lead the appellate panel in a different direction. The reply, the advocates’ last word before oral argument, should attempt to regain your advantage by refuting your opponent’s counterarguments and new points, as well as providing the court with a sense that you bring greater credibility to the applicable caselaw. Credibility can make the difference. Judges will discount an otherwise compelling argument when the advocate has made statements elsewhere that are false or unsupported by cited authority, causing a jurist to doubt the presentation.

A reply brief can employ tools that may help win the gold star of credibility. One way to win the credibility battle is to highlight your opponent’s concessions, which may imply that your arguments are correct at least as far as they go. Those concessions can come in the form of factual agreements even when your opponent argues against the significance of those facts, opening the door for you to emphasize their significance in reply. Concessions can also consist of statements that agree with your identification of relevant precedent, allowing you to explain the case and its meaning for your dispute even more pointedly. 

Another form of concession occurs implicitly when the response brief omits any response to a material point you have made. That omission occurs with more frequency than you might imagine. Caselaw in nearly every jurisdiction treats that omission as either waiving the argument or, with much the same effect, a concession. A reply brief should call attention to the lack of response, which also serves to remind the panel of the key nature of the point overlooked by your opponent. Your opponent’s silence, then, becomes a powerful point in your favor.

Another tool in the credibility battle comes from showing the care you took in mustering caselaw without overstating the holdings. Your precision, in comparison to your opponents’ hyperbolic or rhetorical excesses, will work in your favor as the court reads the briefs. Your opponents’ exaggerated and emotion-laden presentation will hold less weight when contrasted with your more lawyer-like, straightforward presentation of arguments framed in terms of the record and the authority that a court should consult. For example, where your opponent calls an argument “made up” or “ridiculous” or engages in ad hominem attacks, it may behoove you to quote their overwrought response and demonstrate that their characterization or problem questions not you or your argument as much as it expresses their misunderstanding of the undisputed record or the meaning of precedent, allowing you to explain in plain yet powerful words the existing facts or applicable law.

Less overblown, but equally problematic, are distortions of your argument that the other side might attempt to show that it makes little sense. When that occurs, a reply brief should explain how the other side either purposely misrepresented or otherwise misunderstood your argument. Doing so allows you to restate the premise of your argument to assure that the court understands it as intended and that it provides no basis for the criticism your opponent mounted. And, in those instances where opponents misrepresent or misunderstand the argument, you can also demonstrate anew its validity and applicability by showing that their reading is far from what you argued or constitutes a wild and unwarranted extrapolation from it.

A final consideration in establishing your greater credibility: read the response brief from the perspective of a judge unfamiliar with the case or the relevant precedents. From that reading you will likely identify between one to three points that raise understandable doubts about your argument. Those points, then, become the questions that the judge probably will expect answered in the reply – and setting out those questions and compelling answers to them in an introduction, particularly where you can use the other credibility tools mentioned here throughout the brief, will bolster your credibility. Often, credibility serves as the key to success in an appeal.