Sunday, November 13, 2022
Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.
In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.
The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.
The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.
The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.
The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.
Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.
Tuesday, November 1, 2022
From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?
Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.
Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.
However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding our Constitution.”
Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.
We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.
There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.
Saturday, August 27, 2022
The best appellate advocates possess certain skills and abilities that often place them among the most distinguished attorneys in the legal profession. Below is a list of characteristics that distinguish the best appellate lawyers from the rest.
1. They are highly intelligent and analytical.
The best appellate advocates are highly intelligent and possess exceptional analytical and critical thinking skills. These lawyers know, among other things, how to tell a compelling story, research efficiently, synthesize voluminous case law, present complex facts and legal concepts in a straightforward manner, distinguish unfavorable precedent, spot the nuances that each case presents, and make persuasive legal arguments. And they exercise great judgment, particularly when confronted with incomplete information or unsettled law. Simply put, intelligence matters, and the best appellate advocates are often among the brightest in the legal profession.
2. They have the intangibles.
The best appellate advocates know that intelligence is necessary, but not sufficient, to succeed in the legal profession. These advocates work extremely hard and prepare better than almost anyone. They are incredibly resilient and disciplined. They persevere and know how to cope with adversity. They excel under pressure. They are empathetic and they are passionate about their work. They have common sense, good judgment, and emotional intelligence, and they know how to relate to people. In short, the best appellate advocates possess intangible – and often unteachable – qualities that cannot be measured by an LSAT score or a grade on a final examination.
3. They are objective in assessing the merits of an appeal.
The best appellate lawyers are objective and honest in assessing the validity of a legal argument, particularly given the standard of review, unfavorable facts, and unfavorable law. They place themselves in the shoes of the opposing party and, in so doing, identify the flaws in their arguments. They do not have tunnel vision. They are not guided by emotion. They do not convince themselves that meritless legal arguments have a chance of succeeding on appeal, and they do not throw every possible legal argument against the wall in an appellate brief, hoping that one will stick.
4. They know how to select issues for an appeal.
The best appellate lawyers know how to identify issues in the record that have the best chance of succeeding on appeal. As stated above, they do not appeal every conceivable mistake made by the lower court and throw every possible argument against the wall, hoping that one will stick. Instead, they exercise judgment based on their experience, knowledge, and the standard of review. For example, they will, in most instances, appeal errors of law, not fact, because errors of law are subject to de novo review. And they will present only the strongest legal arguments on appeal and support them with compelling facts and precedent.
5. They are exceptional writers.
The best appellate advocates know how to write and communicate persuasively. They draft outstanding appellate briefs (see, e.g., John Roberts’ brief in Alaska v. EPA) that, among other things, have a strong theme, begin with a compelling introduction, tell a powerful story, use precedent effectively, and distinguish unfavorable facts and law convincingly. They draft briefs that address counterarguments thoroughly and persuasively. They know how to use various literary techniques to capture the audience’s attention and enhance the readability of their brief. They draft and re-draft their brief (often countless times), making line and copy edits to ensure that the brief is as close to perfect – in style and substance – as possible. In so doing, they produce a first-rate product, which enhances their credibility with the court and the legitimacy of their argument.
6. They are outstanding oral advocates.
The best appellate lawyers are exceptional oral advocates. They know how to persuade an audience using verbal and non-verbal techniques. They are prepared. They present well-organized and convincing legal arguments. They are skilled at answering the judges’ questions concisely and effectively. They are never flustered. They have outstanding memories and can recall precedents and facts in the record without notes. In short, they own the courtroom.
7. They are extremely thorough and methodical.
The best appellate lawyers thoroughly and methodically review the underlying record and relevant law. They know how to research efficiently and never fail to identify a relevant case, statutory provision, or regulation. They are skilled at identifying, among other things, subtle errors or inconsistencies in the record and flaws in evidentiary rulings. And they do so carefully and intentionally; they take the time to review and reflect upon the record, the possible appealable issues, and the likelihood of success on the merits.
8. They are confident.
The best appellate advocates know that perception – and appearance – matter just as much as reality. They have confidence and, quite frankly, swagger. They never appear nervous. They conduct themselves as if every development in the courtroom, however unexpected, is precisely what they anticipated. They are never surprised or taken off guard by the judges’ questions. They do not get emotional. They do not exude arrogance or hubris. Instead, they are prepared, self-assured, and unflappable. As stated above, they own the courtroom.
9. They win.
As Vince Lombardi said, “winning isn’t everything; it’s the only thing.” The best appellate advocates win consistently. They sustain their success over years. They are the best of the best.
Sunday, August 21, 2022
Common wisdom holds that an advocate can lose a case at oral argument, but rarely prevails at the argument. By providing a wrong or weaker answer than expected, an otherwise allied judge might rethink support of a position. However, it is rare that an advocate can provide an unexpected basis to win over a judge committed to the other side. Even as he claimed that oral argument makes a difference, Chief Justice William H. Rehnquist admitted that only in a “significant minority of cases” had he changed his mind after hearing argument. A recent personal experience in oral argument has made me think about the difficulty of breaking through to judges whose minds were made up before argument.
In this instance, in a trial court hearing a motion to dismiss, one question from the judge indicated that he had misunderstood the pleadings and our brief. He explained that the scenario contemplated by this declaratory judgment action would never come up in real life. Even though I responded with an entirely different fact pattern consistent with the pleadings and past experience, it had no impact. The argument ended with the judge picking up a sheet of paper and reading his pre-typed ruling from the bench. Whatever doubt I may have planted with my unanticipated response evaporated as the preconceived result, memorialized on paper without regard to the oral presentations, prevailed.
I’m convinced that nothing I might have said at oral argument would have made a difference. The “crutch” of a written decision prepared in advance was too much to overcome. Still, it demonstrated the importance of briefing to make oral argument worthwhile. Anticipating the judge’s confusion about the practicalities of our position with a more pointed explanation would have provided at least a fighting chance to change the judge’s mind when it was still open to how the challenged statute and the plaintiffs’ dilemma operated in real life. However much I thought our brief made that plain, it was only as I prepared for oral argument that I realized a better way of framing the factual predicate to my legal argument – and that’s what I explained before the judge.
On the other hand, another recent case provided greater confidence that oral argument can have influence. Lengthy majority and dissenting opinions struggled with crediting or rebutting a point made during the argument. What was said had an obvious impact and forced judges of vastly different views to contend with it.
Judges may have strong reactions in some cases or even in all cases to their understanding of what the case is about, making the job of dissuading them from a view that works against your position difficult, if not impossible. Nonetheless, an advocate should always assume that judges have sufficient impartiality so that oral argument can help shape the opinion, if not persuade, even while crafting a brief that lays out the argument clearly. That is one reason I like a hot bench. Rather than give an oration, I am more interested in arguing about what the judge indicates is important – and perhaps providing a new insight that wins the day.
 William H. Rehnquist, The Supreme Court 243 (2001).
Sunday, July 24, 2022
Subject-matter specialists might seem to have an advantage over a generalist on appeal. They would seem to have unmatched familiarity with the underlying statutes and caselaw. In specialty courts, such as the Federal Circuit, focused advocates may stand on a firmer footing than a newcomer in the field.
In most courts, however, the judges are generalists. They hear appeals on a wide range of subjects and cannot keep up with developments in every area of law. For them, the complexities and nuances that a specialist brings to the table may be less important than an experienced lawyer’s ability to boil the complicated down to familiar principles. Seventh Circuit Judge Diane Wood has noted that the “need to explain even the most complex area to a generalist judge . . . forces the bar to demystify legal doctrine and to make the law comprehensible.”[i] Make the unfamiliar familiar by utilizing language a judge will understand.
Moreover, the specialist may rely on memory of a frequently cited case that, over time, becomes little more than code words that only the cognoscenti appreciate. The generalist, however, is certain to find the case, read it freshly, and expose the imprecision while finding legal analogies that point in a different direction than the specialist argued.
A specialist’s command of policy arguments often relies upon the gloss of repetitive usage, twists to conform to his clients’ preferred results, and the dullness of repeated use, a generalist can look at legislative history and intent with fresh eyes that can be revelatory to a judge. Moreover, a generalist will draw from other areas of law enabling the judge to appreciate analogies that the specialist would never consider.
In some ways, the difference is comparable to the difference between an appellate lawyer and a trial lawyer. Trial counsel knows the record from having lived though the case and having pursued key objectives that yielded the desired result. The appellate lawyer looks at the case more dispassionately and often finds that the formula for victory is either an issue quite different from the one that may have dominated trial or a route that may even have been unavailable at an earlier stage.
The bottom line is that tackling a new area of law should not generate fear that the specialist opponent holds all the cards. The well-prepared appellate lawyer should appreciate the advantages that a generalist can bring to the table.
[i] Diane Wood, Generalist Judges in a Specialist World, 50 SMU L. Rev 1755, 1767 (1997).
Sunday, June 26, 2022
In writing today’s post, it is difficult to overlook the Supreme Court’s predictable rulings on abortion and guns, with a less certain but likely precedent-shattering decision on coach-led public-school prayer. Others will critique the decisions, extrapolate their consequences for issues beyond the cases decided, and speculate about new doctrinal implications. For today, I want to focus solely on the tools it suggests appellate advocates must use.
Dobbs and Bruen place a heightened emphasis on history. It is not the history that originalists who look to the Framers’ intent utilize, but whether an asserted constitutional liberty is “deeply rooted in this Nation’s history and tradition.” In Dobbs, the majority rejected a constitutional right of access to abortion because it held that no historical tradition, common law or otherwise, enabled women to have abortions regardless of the legislative policy choices, before the Constitution’s framing or in its aftermath or even following the ratification of the Fourteenth Amendment. In Bruen, similarly, the Court held text, history, and tradition informed the meaning of the Second Amendment, with the Court holding that history without consideration of possible countervailing government interests dictates the result.
While the decisions fail to take account of constitutionally significant differences in the principles that animate modern society, including, for example, the equal status of women and minorities or the contemporary principle of religious tolerance, an essential approach to argument emerges from the decisions. First, advocates must focus on the relevance of historical analogy. Are historical restrictions on the exercise of a right animated by the same considerations that underlie a modern restriction? Thus, for example, it is well-accepted that online publications receive the same type of free-press protections that publications that emerged from hand-operated printing presses issued in large measure since the time of John Peter Zenger.
Even though Justice Breyer’s Bruen dissent criticized the majority’s use of “law office history,” the majority’s reliance upon it constitutes the order of the day. Justice Thomas’s majority opinion rejects contrarian historical examples as “outliers,” unworthy of bearing constitutional significance. Similarly, Justice Alito’s history of abortion in Dobbs seems to be selective about what history counts.
The two decisions, then, place a burden on an advocate to make the history that favors a position compelling and part of an unbroken narrative (except for insignificant outliers). Messy renditions of history open too many doors to predilection. That historical advocacy, then, also reflect timeless principles consistent with constitutional understandings.
A pure historical approach is not a complete stranger to constitutional law. The Seventh Amendment’s right to trial by jury has long adopted that approach, defining the scope of the right by how it was practiced at common law when the Bill of Rights was ratified. Thus, then-appellate advocate John Roberts won a unanimous victory, written by Justice Thomas, where the Court recognized that jurors have always served as the “‘judges of the damages,’” even under the English common law that predated the Constitution in Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 353 (19978) (quoting Lord Townshend v. Hughes, 86 Eng. Rep. 994, 994-995 (C.P. 1677)). The decision hinged, in large part, on close 18th-century analogues to the statutory copyright damages at issue in the case. Similarly, in invalidating administrative procedures utilized by the Securities and Exchange Commission the Fifth Circuit in Jarksey v. SEC, No. 20-61007, 34 F.4th 446, 451 (5th Cir. 2022), relied upon historical analysis to find that “[c]ivil juries in particular have long served as a critical check on government power,” so that the civil enforcement at issue could not be assigned to agency adjudication.
Where constitutional rights are at issue, history has become destiny.
Sunday, June 12, 2022
Years ago, I witnessed a portion of an argument before the Supreme Court of India that was then in its third day with additional anticipated days of argument remaining. When I spoke to members of the Supreme Court bar afterwards, one experienced lawyer expressed astonishment that U.S. Supreme Court arguments were 30 minutes per side. How, he asked, is a lawyer going to “warm up” in that amount of time?
Last week, I argued a case in the Seventh Circuit. It rekindled memories of that trip to India, not because more than the usual amount of time was allotted, but because of how little time was needed. I represented the Appellee with 15 minutes of argument time. I was also in the unusual position of having three recent sister circuits ruling in favor of my position, along with more than 100 district court decisions. Even though I had suggested in my brief that argument would not further inform the court, oral argument was ordered.
My opponent was largely relegated to policy arguments. I planned three different approaches to my argument depending on how my opponent had faired. As expected, the Court was well prepared and pummeled my opponent with questions that could have come from my brief. He ended up using his entire 15 minutes responding to questions and reserved no time for rebuttal.
As I stood at the podium, the presiding judge immediately asked questions about whether any circuit had issued new decisions on our issues since I had filed a 28(j) letter in March and whether any other similar cases from within the circuit were pending on appeal. When I answered no to both questions, I was finally able to introduce myself. While I used a small amount of time to add favorable precision to some statements made during my opponent’s time at the podium, the questions from the bench tended to focus on whether a narrow decision would be sufficient to affirm our motion for remand, where the defendant had removed claiming federal-officer removal, complete preemption, and an embedded federal question. I understood the panel’s questions to favor affirmance. As the questions wound down, I realized the court was satisfied and that no further argument was necessary. I simply said that, unless there were any further questions for me, I ask that the district court be affirmed.
When I did so, about seven of my 15 minutes remained. Using more time was both unnecessary and likely counterproductive. The judges also likely appreciated my decision to end the argument early. From my perspective, even though the decision is under advisement, the argument seemed to go very well – even if I had not had the amount of time to warm up!
Saturday, June 4, 2022
It’s not that difficult to be persuasive. Below are a few tips to increase the persuasive value of your arguments.
1. Keep it simple, talk like a normal human being, and get out of the weeds.
If you want to persuade a court (or anyone), simplify your narrative. Think of it this way: if you had only one sentence to explain why a court should rule in your favor, what would you say? If you had only thirty seconds to explain why the Second Amendment protects an individual right to bear arms, what would you say? Simplifying your narrative, making complex concepts easily understandable, and staying “out of the weeds” is critical to effective advocacy.
After all, judges (and people generally) have short attention spans. They’re busy and often under considerable stress. So, get to the point immediately and do so in a manner that makes your argument clear and persuasive. Use simple words. Don’t state the obvious. Make sure your argument is structured logically and presented concisely. And get to the bottom line – quickly. Tell the court what you want and why it should rule in your favor. Consider the following example of an attorney arguing that there is no hate speech exception to the First Amendment:
Attorney: May it please the Court, the First Amendment is a bedrock, indeed the backbone, of our freedom in this country. As the historical record shows, the First Amendment was designed to create a marketplace of ideas in which the perspectives and political views of individuals from all segments of society must be respected and unregulated. As the federalist papers demonstrate, as John Marshall argued in 1788, and as countless law review articles that nobody reads confirm, the First Amendment is the essential safeguard of, and the impregnable sanctuary protecting, citizens’ right to disseminate commentary on matters apposite to political and social discourse. To be sure, the First Amendment is the catalyst for a democracy that can withstand the threats that tyranny poses and that authoritarianism endorses.
This is utterly ridiculous. If anything, this nonsense supports restricting First Amendment rights, if for no other reason than to spare the court from having to listen to this gibberish. A better approach would be as follows:
Attorney: The First Amendment protects unpopular, offensive, and distasteful speech to ensure that individuals can share diverse perspectives on matters of public concern. A hate speech exception would, by intent and in effect, allow the government to prohibit speech based on disagreement with its viewpoint and content. And the subjectivity inherent in this determination would present a threat to citizens of every political persuasion.
Again, this isn’t perfect, but you get the point. Keep it simple and direct.
2. Address the court’s questions and concerns.
Judges don’t care about what you want to argue. They care about whether you can address their concerns and respond in a way that makes them want to rule in your favor. For that reason, your answers to the court’s questions are critical to your chances of succeeding on the merits. If you evade a court’s questions, both your credibility and the persuasiveness of your argument will diminish substantially.
Imagine, for example, a relationship where a husband is upset because his wife is working long hours and not dedicating sufficient time to the relationship. Consider the following dialogue:
Husband: I feel like you don’t care about our relationship. You work at the law firm seven days a week and talk more about the Fourteenth Amendment than you do about our future. It’s like I don’t matter to you at all.
Wife: Look, I work eighty hours a week and without my salary, we wouldn’t be able to live in this house or send our kids to the best schools. I’m not expecting a medal, but a thank you now and then would be nice.
Yeah, these two are likely headed for a divorce – and for good reason. Why? Because the wife didn’t acknowledge and address the husband’s concern and therefore made no attempt to resolve the conflict. If you do this as an advocate, your argument will likely fail. Consider, for example, the following dialogue between an attorney and a justice on the United States Supreme Court:
Justice on Supreme Court: Counselor, Roe v. Wade is not based on any reasonable interpretation of the Constitution’s text and is based on a theory – substantive due process – that makes no sense. Where in the Constitution can this Court find a right to abort a pregnancy?
Attorney: Your Honor, Roe v. Wade has been the law of the land for fifty years, and overturning Roe now would seem like a brazenly political decision.
That nonsensical response is the equivalent of saying, I don’t care about your question or your concerns. Such an approach will diminish your credibility, reduce the persuasiveness of your argument, and alienate the justices. A better response would be as follows:
The right to abortion is firmly rooted in the liberty protected under the Fourteenth Amendment, which this Court has affirmed numerous times, such as in Planned Parenthood v. Casey, and this right reflects the underlying purpose of the text, which is to ensure the liberty, equality, and bodily autonomy of all persons.
This response, although not perfect, responds directly to the justice’s concerns.
3. Acknowledge weaknesses in your argument.
Nobody is perfect, as the Johnny Depp-Amber Heard trial so clearly showed. And no argument is perfect. You will almost always have to address unfavorable facts or law. That’s not necessarily a bad thing, though, because it gives you an opportunity to explain why unfavorable facts or law do not affect the outcome you seek.
The worst thing that you can do, however, is to evade, minimize, or offer unpersuasive explanations for unfavorable facts or law. For example, in the Johnny Depp trial, Depp’s attorney, Camille Vasquez, highlighted that while Amber heard had pledged to donate the money from her divorce settlement with Depp to charity, she hadn’t actually donated the money. Heard should have simply acknowledged this point. Instead, she claimed that, in her view, the words pledged and donated are synonymous.
That was bad.
And very damaging to her credibility.
4. Be passionate and emotional (when appropriate).
It’s important, as an advocate, to show that you care. That you are emotionally invested in your client and your case. When you show genuine passion and emotion, it conveys that you believe strongly in your argument and in the remedy that you seek. For example, Camille Vasquez’s cross-examination of Amber Heard demonstrated that Vasquez believed strongly that Heard was lying and that Depp had been defamed. In essence, believing in your argument increases the persuasive value of what you say. After all, imagine if you proposed marriage to your partner in a monotone voice and with no emotion whatsoever? The answer would likely be no.
5. Be likable and relatable.
This doesn’t require much explanation. People hate jerks (and there are many jerks lurking in the legal profession). So, don’t be a jerk. Don’t be arrogant. Don’t gossip. Don’t judge. Be a nice person. Respect people with whom you disagree. Be honest. Be compassionate. Courts and people are more likely to empathize with others that they like.
Sunday, May 1, 2022
Rebuttal provides an advocate with an opportunity to point out otherwise undiscussed weaknesses in an opponent’s argument, as well as to emphasize the superiority of the evidence, precedents, and reasoning that supports your client. Five points fundamental points should guide rebuttal:
- Answer your opponent’s best argument. During your opponent’s argument, you can evaluate your opponent’s framing of the argument and the court’s reaction to them. Many advocates go after the obvious weakness in the argument the court just heard. Doing so can be effective, but, if the argument is available, demonstrating why your opponent’s best argument should not prevail can powerfully move the court to your position. Perhaps accepting that argument creates practical problems easily avoided or raises unnecessary constitutional issues that the court should want to avoid. Perhaps it would create precedent that throws into question another line of related precedent that cannot coexist together. Simplicity, rather than new complexities, often provide a court with a path that allows it to resolve your case favorably without creating a host of new problems for those who come after you.
- Answer questions posed to your opponent. A judge’s questions are a window into the jurist’s mind, letting you know what concerns might animate the decision. Whether it is a seemingly softball question or a penetrating inquiry, a satisfactory answer that leads the judge in your direction can overcome your opponent’s response. If your answer provides a better path to decision, it can create confidence in the court that the result you seek is the proper one. In one argument last year, a judge known to favor that approach asked my opponent whether he was aware of an original-intent scholarship that supported his position. Using only a few seconds of my rebuttal time, I reminded the judge that he did not receive an answer to that question because academic writings on that point uniformly favored my position, citing two scholars.
- Don’t waste time rebutting a point that a judge already accomplished for you. There is no more powerful rebuttal to an opponent’s argument than one that comes from the court itself. Unless questioned about it, there is no reason to reiterate that point and subtract from its impact. In a case I had before the U.S. Supreme Court, my opponent made a facially useful point in his brief. In my reply brief, I explained why it lacked substance, adding a footnote that the record reflected that the evidence took away the foundation for that argument. During oral argument, my opponent, early on, made the same point again, ignoring my rebuttal. Justice Ginsburg, however, did not ignore it. She interrupted to state that the evidence deprived him of that argument. He had no response and, despite substantial experience in that court, never recovered from that loss of credibility. When he first expressed the argument, I made an immediate note to rebut it. When Justice Ginsburg made my point, I crossed the note out. She had settled that issue in my favor. Have a one-sentence conclusory pitch. As time runs down, too many advocates end with a perfunctory request for affirmance or reversal of the court below. Instead, a one-sentence conclusory pitch that articulates exactly the ruling you hope the court will adopt and write into the opinion, providing the judges with a strong, clear basis for its decision. That 30-second or less conclusion will leave an impression much more memorable than any generic statement.
- Don’t feel the need to use all of – or any of – your time. Too many advocates believe the opportunity for face time before the judges is too valuable to give up. Although they may have nothing new to say, they remain at the podium, reemphasizing something previously articulated. And, often, the advocate endangers the argument by allowing the court to pose new questions that might not have troubled them if the argument had ended. In one case I argued, as my opponent, thoroughly eviscerated by the court’s questions, finished, I realized I had not written a single note to myself about something I needed to answer. I rose and said that, unless the court had any questions, I waive rebuttal. The tactic proved correct, as I received a unanimous decision months later. Although I am fond of certain rebuttals that made astute observations that showed up in the subsequent opinion, waiving that response was unquestionably the best rebuttal I have made in more than four decades of practice.
Sunday, April 17, 2022
Oral advocates often must resist the first answer that comes to mind from judges who are ill-prepared or concerned about an issue not presented by the case. The judges asking the questions will make the decision so counsel must fashion a respectful response, even if the question does not merit it and the quick-witted answer that seems so tempting.
The same dynamic was on display during the recent hearings on Judge Ketanji Brown Jackson’s nomination to the Supreme Court. Senators, all of whom voted against consenting to her nomination, asked some strange questions. Despite claims that judges should apply rather than make law and thus keep their personal views in check, many senators sought Judge Jackson’s policy positions on a range of hot button political issues. Her unflappable demeanor and deft handling of the questions posed to her was a model for the type of temperament we expect from judges – and from counsel arguing before a court.
Still, as I listened to the hearings, my responses were unrestrained, knowing that I had not been nominated to the highest court in the land, no one would hear my answers, and I was not making history. In this post, I indulge some of those imaginary answers that popped into my head, tongue firmly placed in cheek, by substituting RSP (me) for KBJ.
Senator Ted Cruz: “I’m a Hispanic man; could I decide I was an Asian man?”
RSP: “Senator, as far as I’m concerned, you can decide you are a fruitcake, and I’d have no reason to doubt you. Still, you would remain equally unwelcome in my household.”
Senator Tom Cotton: “Do you think we should catch and imprison more murderers or fewer murderers?”
RSP: “Really, that’s your question? Do you even know what a Supreme Court justice does? A justice does not catch or imprison murderers or make the laws that govern that process. And, by “we,” are you suggesting that members of the Senate Judiciary Committee do that task? Do you want to try asking a question again?”
Senator Lindsey Graham: “Did you watch the Kavanaugh hearings? … He was ambushed. How would you feel if we did that to you?”
RSP: “Senator, I was busy working for the American people as a judge while those hearings took place, so I did not watch the hearings. How I would feel, though, is an irrelevant question. Judges do not interpret or apply to the law based on how they feel – and your questions will not figure in any case I might hear as a supreme court justice. Senator, given the kinds of questions I have received from your side of the aisle, most of which have little to do with judging or my qualifications to serve on the Supreme Court, like this one, how I feel isn’t relevant.”
“One more thing, Senator. An ambush is the act of approaching or confronting someone with something unexpected. Are you suggesting, based on the questions I’ve been asked at this hearing, that I should have expected such bizarre questions?”
Senator Marsha Blackburn: “Can you provide a definition for the word ‘woman’?”
RSP: “You want a definition of a woman. Here’s one. A ‘woman’ is a person that the Supreme Court as recently as 1961 held Florida could exclude from the jury service list unless she affirmatively volunteered for it, even though no such requirement was imposed on men. The Court reasoned that, ‘Despite the enlightened emancipation of women from the restrictions and protections of bygone years, and their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life.’[*] That’s a decision where the majority’s personal views obliterated the constitutional requirement of equal protection – and thankfully no longer holds sway.”
Senator Lindsey Graham: “On a scale of 1 to 10, how faithful would you say you are, in terms of religion?”
RSP: “In introducing your question, you just said that you understood my faith is important to me and that you don’t measure up on being faithful because you only go to church three times a year. Now you want me to rate my religious faithfulness on a scale of 1 to 10? Let’s just leave it at more faithful than you revealed yourself to be, even though the question has nothing to do with my qualifications or ability to serve on the Supreme Court. Next question.”
Senator Ted Cruz: “Do you agree with this book that is being taught with kids that babies are racist?”
RSP: “I have not read this book. My only knowledge of it comes from your description of it and the passage you read before you posed this question. If I were to believe your earlier characterization, it does not say that babies are racist but states that babies are born without prejudice or bias. Your question presupposes the opposite. So, before I can answer your question, answer this one: were you lying about the book then or are you lying about it now?”
[*] Hoyt v. Florida, 368 U.S. 57, 61-62 (1961).
Sunday, April 3, 2022
As appellate advocates, we honor the rule of law because it depends on logic and reason. When we muster enough support in our favor, we expect a good result, even if we are sometimes disappointed in that expectation.
The rule of law also means that, regardless of an opponent’s money, clout, and influence, a level playing field exists so that the strength of one's arguments made should prevail. At least, that is the theory. And, in most instances, the theory holds, evidenced by the frequency of 9-0 decisions in the Supreme Court, despite vastly different judicial philosophies and ideological divisions among the justices.
Part of the reason the theory holds is that judges are supposed to park their politics at the courthouse door and not inside the courtroom. In one famous example of doing so, Salmon Chase was President Abraham Lincoln’s treasury secretary and had been a driving force behind the Legal Tender Act, which allowed paper money to replace silver or gold as currency and finance the Civil War. When an opening for chief justice came up, one reason Lincoln tapped Chase (besides eliminating a potential presidential rival) was an assumption that he would “sustain what has been done in regard to emancipation and the legal tenders.” It turned out to be a miscalculation. Chase led a slim majority in declaring the act unconstitutional. Some have explained the turnaround as Chase doing his best to serve his client as treasury secretary to draft a valid act and later deciding that his best was still not good enough.
We enjoy stories about judges putting the rule of law above politics, but we also live in an era where the lines between law and politics seem to be dissolving. The line was never as bold and clear as our learning and imagination suggested. Yet, today, the marriage of politics and law appears more evident, particularly in the appellate courts.
It does not just come with threats of impeachment by disappointed legislators who resent a court’s decision striking down their handiwork. It also comes from the interjection of social and political debates in opinions unrelated to those debates, as well as the politicization of judicial philosophies. Many senators who have announced that they plan to vote in opposition to Supreme Court nominee Ketanji Brown Jackson have explained their rationale for doing so because she would not commit to originalism. Although she testified that she uses originalism, that was not enough. Still, few of those senators who have insisted on an unalloyed commitment to originalism could explain how it works as an interpretive tool behind a simplistic but uninforming definition. They probably hold the false belief that originalism always leads to a single result.
One of the most outspoken originalists on the Court was Justice Antonin Scalia, who liked to describe himself as a “fainthearted originalist.” He held no brief where originalism would lead to an absurd result. He also fashioned his originalism, at times, to fit his preexisting views as in D.C. v. Heller. The fractured version of history he recited to support his conclusion was assailed by two conservative jurists for its selective use of history. Other times his use of the tool led him to a conclusion that the Senate’s originalism fans would probably oppose, such as in the Flag-Burning Cases, where he voted to grant First Amendment protection to that act of protest.
Originalism is no panacea against imbuing interpretation with personal predilections, but advocates must be prepared to provide the necessary fodder for those who follow that approach. Pointedly, it does not always inform the issue. Justice Samuel Alito once teased Scalia for his sometimes-rigid adherence to originalism during oral argument in Brown v. Ent. Merchants Ass’n, where the Court held a California statute that restricted the sale or rental of violent video games did not comport with the First Amendment. After Scalia had posed a question to the advocate, who hesitated in responding, Alito mockingly explained the question: “What Justice Scalia is asking is what did James Madison think about video games?”
Perhaps appellate advocates have always contended with politics in preparing briefs and oral arguments, but the impact of it today seems more acute than at any time in my experience. And the nature of the politics intruding on judicial decision-making also seems more extreme.
 See, e.g., Haley BeMiller, Jessie Balmert, and Laura A. Bischoff, “Ohio Republicans discussing impeachment of Chief Justice Maureen O'Connor after map ruling,” Columbus Dispatch, Mar. 18, 2022, https://www.dispatch.com/story/news/2022/03/18/ohio-republicans-want-impeach-maureen-oconnor-over-redistricting/7088996001/.
 554 U.S. 570 (2008).
 See J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009); Richard A. Posner, “The Incoherence of Antonin Scalia,” New Republic (Aug. 24, 2012) (book review), http://www.newrepublic.com/article/magazine/books-and-arts/106441/scalia-garner-reading-the-law-textual-originalism.
 Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).
 564 U.S. 786 (2011).
April 3, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Tuesday, March 22, 2022
When the Supreme Court hear oral arguments yesterday in Berger v. North Carolina State Conference of the NAACP, the discussion seemingly centered around dry procedural minutiae and one of the banes of legal writing courses—the appropriate standard of review to answer the question. But the case demonstrates both the importance of those standards of review, and the way that procedural nuance can mask surprisingly broad political and policy subtexts.
The case concerns North Carolina’s new voter ID law, which the North Carolina NAACP has challenged as unconstitutional. The North Carolina attorney general, a Democrat, is defending the law, but Republican state legislators in North Carolina seek to join the lawsuit to defend the statute’s constitutionality. The legislators argue that the attorney general was not sufficiently representing their interests because he was primarily seeking clarification on which voting law to enforce—without forcefully defending the constitutionality of the new voter ID law.
Despite the seemingly mundane procedural posture of the case, the political subtext and repercussions are broad. Republicans want to see the voter ID enforced immediately, while Democrats did not support it from the outset. North Carolina’s Democratic governor initially vetoed the voter ID law, and Republican legislators passed it over his veto. Some of those same Republican legislators, now dubious that a Democratic attorney general truly seeks to uphold the voter ID law, believe they must intervene to preserve their interest in asserting that the law is constitutional.
In a twist that should draw the attention of appellate attorneys and law students, the case may turn on the deference owed to the lower court, and thus the standard of review that ought to apply. Because the lower court ruled against the Republican legislator’s effort to intervene, the Supreme Court must decide whether to follow that lower court decision. Republican legislators argue that the Court should apply de novo review, allowing the Supreme Court to consider the legal issue afresh without any deference to the lower court’s ruling. They claim that the Supreme Court should not simply review the lower court’s ruling for an abuse of discretion—meaning that the lower court’s decision was so arbitrary and capricious as to hardly be a legal ruling at all—because their decision refusing to allow intervention was purely legal, not the kind of fact-driven decision best left to lower courts. But opponents respond that the Republican legislatures seek a ruling of whether their interests are adequately represented by the state attorney general—an inherently fact-specific inquiry to be made by lower courts with a closer relationship to the parties and a better view of the facts involved.
A debate over standards of review may appear immaterial. Judges, after all, might reach whatever ruling they prefer irrespective of that standard, either by manipulating the standard they apply or by simply applying the correct standard more or less rigorously. But this case illustrates the ways in which the standard of review, when contested, can have a meaningful impact on the outcome of litigation. In many ways, it drove the direction of oral arguments, where Justices wondered how strong an interest the Republican legislators really had and whether other groups of legislators might also want to join the suit. Those questions, though framed as a legal inquiry, also contain a clear factual subtext; they require close examination of the details of every case where such intervention is a possibility. How the Court frames those questions—as either legal inquiries subject to de novo review of factual ones subject to review for an abuse of discretion—seems likely to control the outcome. The case thus provides a ready example of standards of review playing a crucial role in a case with broad political and policy implications.
March 22, 2022 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Saturday, March 19, 2022
My first-year students participated in a traditional 1L moot court competition this week, making their first oral arguments. As I helped guide the students through this rite of passage, I answered many anxious questions about content, presentation style, appropriate “court suit” fashion, and more. In answer, I stressed the need to be prepared and flexible, and most of all, to enjoy the process. My overall advice: make a one-sheet, place the sheet in an organized binder to support a professional and successful argument, and don’t buy a new suit just for an argument.
I stress the one-sheet because it worked for me. Also, as a former state and federal appellate law clerk, and then an appellate specialist for years, I saw many oral arguments fail over lack of preparation and complicated podium notes. Instead of fancy folders or notes, I suggest students distill the argument to one piece of paper. The process of making this one-sheet, in law school and practice, requires advocates to know their record and case law very well, and to create argument summaries taking no more than a sentence or two. Plus, even if you drop one piece of paper, you can quickly pick it up and continue, unlike scattered index cards or multi-page notes.
As part of my preparation to teach the one-sheet approach to oral argument this year, I once again read many blogs and articles to see if I could add any new advice. I found a very helpful ABA Journal piece which perfectly summarized my appellate practice life before full-time teaching. In A Working Mother's 32-Step Guide to Preparing for Oral Arguments, author, law professor, and former Dean Sarah Gerwig-Moore provides a humorous and helpful discussion of oral argument, especially the concerns of being an advocate, mother, and woman in an appellate court setting. See ABA Journal, Nov. 18, 2019,
I suggested my students read Gerwig-Moore’s piece, and many told me the humor helped them keep their argument preparation in perspective.
Given how much my students enjoyed Gerwig-Moore’s 32-steps, I am also sharing them here. Gerwig-Moore explained her preparation for a Spring 2019 law clinic oral argument in the Supreme Court of Georgia “that would decide an important question regarding the scope of issues cognizable in habeas corpus proceedings.” See id. As so often happens, her “oral argument coincided with a truly insane week or two of sports and other obligations for [her] sons.” She explained, “[s]ometimes you just have to laugh to keep from crying. And—just as in baseball—there’s no crying in court.” Id.
Here is Gerwig-Moore’s lighthearted summary of her oral argument preparation:
- Reread all briefs and entire case record, making notes and highlighting.
- Reread all laws cited. Realize you might need the full 150-year history of the statute—ask team to track that down. As they’re researching this, realize the milk in your refrigerator might be 150 years old.
- Reread every case cited in all briefs and make notes. Ask your team to create charts of cases and facts so you can see each one at a glance. Make sure to ask very nicely.
- Slice up your brief for the first draft of an outline.
- Slicing up the brief reminds you to slice up food. Your children need to eat. Cook dinner! Leave dishes in the sink.
- Question absolutely everything—even your own name. Stay up too late.
- Wake up too early. Wonder if dark circles under your eyes make you look too shrill. Consider buying undereye concealer.
- Decide on a few key record items you will need to memorize. Make breakfast for children while reciting these. Scowl when sons remark that this isn’t fun. Consider smiling more with record recitations. Scowl again.
- Let at least three people down. (These are likely to be close friends or family members.)
- Anticipate questions from the bench. Arrange mock arguments with colleagues who don’t mind insulting you. Consider inviting archrivals, too. Or your teenage offspring. They’ll definitely insult you.
- Feed pets. Feed children. Eat leftovers. Deposit dishes in the sink.
- Moot the argument. Send follow-up assignments to team. Thank team! Donuts are a good way to thank people! Consider bringing some donuts to work but then forget.
- Consider wardrobe. Pantsuit? Skirt suit? Dress? Clothes should be flattering—but not too flattering. It should be comfortable—but not too comfortable. Assess work shoes to decide which will help you see over the podium but not actually tip you over in court. Don’t even get started on all the ways you can mess up your hairstyle strategy.
- Simultaneously wish you were both much, much taller and much, much smaller (see musing above re: shoes).
- Reread everything.
- Hem your suit—and I am not making this up—while on a conference call, while sitting in your car watching your son play lacrosse.
- As you are sewing, notice your nails haven’t been done in months. Wonder how many people will actually notice your hands. Resolve not to be too demonstrative with hands while in court.
- Do all your other work and errands and at least one ridiculous extra thing (can you say “homemade” cookies for your kid’s class, anyone?) you committed to months ago.
- Try to see the case from opposing counsel’s perspective. Consider adopting this tactic with your children, but then (metaphorically) hit them with the ol’ “Because I said so.”
- Check in with client.
- Buy the best lipstick your credit card can handle. This is unquestionably Pirate by Chanel. Case closed. (See what you did there?)
- Be serious but not too serious. Be confident but not too confident. Be yourself but not too much of that either (e.g., suit sleeves should cover your justice tattoos).
- Eat one vegetable. Make children eat two vegetables. Pat self on back for being health guru.
- Reread everything. Condense argument down to a one-pager.
- Ponder a twist on the Dorothy Parker classic: Justice makes spectacles of women in spectacles (which cause issues with limited peripheral vision). Decide to wear contact lenses.
- Read notes from team. Wax philosophical on the notion that all team members are working with the same richness of the experience of your work.
- Whiten teeth. Sharpen fangs. Consider optics of fangs. Stow them in a tiny pocket right next to your heart.
- Reread everything.
- Decide you hate your suit. Wish that suits of armor were still a thing.
- No—not sigh—breathe.
- Reread everything. Boil down outline to one word and the dancing woman emoji.
- Set four alarm clocks. Or is it alarms clock?
Id. Gerwig-Moore added a fun postscript, and if you want to know how the argument ended, please check out her article.
I wish you all great oral arguments, with one-sheets and humor as your guides.
Saturday, March 12, 2022
Nearly all lawyers and law students are familiar with the conventional advice regarding how to perform and maximize the persuasiveness of an appellate oral argument. For example, law students are taught to develop a persuasive theme, begin with the strongest argument, know the record, the law, and the standard of review, concede (or reconcile) unfavorable facts and precedent, never attack the adversary or lower court, never misrepresent the facts or law, and craft a compelling narrative.
This is good advice that can certainly enhance the persuasive value of an argument, increase the likelihood of success, and ensure that an advocate maintains credibility with the court. But do these techniques always work? No.
Below are several tips that attorneys should consider when preparing for an appellate oral argument.
1. Begin by addressing the weaknesses in your argument.
Conventional wisdom suggests that you should begin with your strongest and most persuasive arguments. But that doesn’t always work.
Appellate judges aren’t stupid.
They know the law.
They know the record.
And they know what your strongest arguments are – and they probably don’t care.
Rather, they are concerned with the weaknesses in your argument and, during questioning, will probe those weaknesses with precision and consistency. So why adopt the predicable and formulaic approach of beginning with your strongest arguments? Indeed, some appellate judges probably aren’t even paying attention to you when you do so.
For example, in Maryland v. King, where the Court considered whether a cheek swab of an arrestee's DNA violated the Fourth Amendment, the oral argument began as follows:
[Petitioner’s attorney]: Mr. Chief Justice, and may it please the Court: 11 Since 2009, when Maryland began to collect 12 DNA samples from arrestees charged with violent crimes 13 and burglary, there have been 225 matches, 75 prosecutions, and 42 convictions, including that of Respondent King.
Justice Scalia: Well, that's really good. I'll bet you, if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. (Laughter.)
Justice Scalia: That proves absolutely nothing.
[Petitioner’s attorney]: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and, in the State's view, the Act is constitutional.
Justice Scalia: So that's its purpose, to enable you to identify future criminals -- the perpetrators of future crimes? That's the purpose of it? I thought that that wasn't the purpose set forth in the -- in the statute.
The Petitioner’s attorney probably and understandably believed that beginning with an argument about the statute’s efficacy would be persuasive.
The justices on the U.S. Supreme Court, however, are very smart and perceptive. After reading the briefs, they are aware of your strongest arguments. They know the record and the law. They know, in many cases, how they are going to decide a case before an oral argument begins. And they have identified the weaknesses in your argument.
Accordingly, in some instances, begin by immediately addressing the weaknesses in your case. In other words, cut out the bullshit and get straight to the heart of the matter. After all, as an appellate advocate who has prepared extensively for oral argument, you probably know the questions – and concerns – that the judges will raise. Thus, why not begin by addressing those concerns and, in essence, preempting their questions? Doing so will enhance your credibility and your argument’s persuasive value.
2. Appellate courts care about their institutional legitimacy and your argument should reflect that reality.
The justices on the U.S. Supreme Court, along with judges on lower federal and state appellate courts, live in the real world. They understand that their decisions can – and often will – engender substantial criticism from the public, which can undermine the Court’s institutional legitimacy.
That’s why judging is a political, not merely a legal, endeavor. It’s also why the Supreme Court (and lower federal and state appellate courts) will render decisions based in part on perceptions about how the public will react to a particular decision.
Thus, when presenting your argument, be sure to provide the court with a workable, fair, and equitable solution that will produce an opinion that maintains an appellate court’s institutional legitimacy. Think about the opinion that the court will ultimately write. Would your argument result in an opinion that the court would embrace and that the public would find credible? If not, your chances of winning decrease substantially.
3. The law isn’t everything – convince an appellate court that it is doing the right thing by ruling in your favor.
When judging moot court competitions recently, many, if not most, law students based their arguments primarily, if not exclusively, on precedent, emphasizing favorable case law and striving mightily to distinguish or reconcile unfavorable precedent. And to a substantial degree, these arguments were well-presented and persuasive.
But judges aren’t robots. They are human beings. They have emotions and biases. Perhaps most importantly, they want to reach decisions that enable them to sleep at night with a clear conscience.
That’s in part why courts have an on-again, off-again relationship with stare decisis. When judges believe that a prior case was wrongly decided, or will lead to a result that they find unjustifiable, they can – and often will – overturn precedent. And even though they will cloak their analysis in legal jargon, you can be sure that their decision is based on the fact that they believe they are doing the right thing.
To be clear, precedent is important. But it’s the beginning, not the end, of the inquiry.
For that reason, advocates should always consider the equities in a given case and appeal to principles of fairness and justice (and sometimes, emotion).
4. Know who your friends are and target the swing justices.
Before oral argument, many appellate judges, after reviewing the record and reading the briefs, know how they are going to rule. And no matter what you say at oral argument, they aren’t going to change their minds.
Before oral argument at the U.S. Supreme Court, for example, you need to identify the justices that will likely support or oppose your position. Most importantly, you have to identify the swing justices and tailor your argument – and responses to questions – to those justices. For example, in Obergefell v. Hodges, legal scholars almost certainly knew that Justices Scalia, Thomas, and Alito would not vote to invalidate same-sex marriage bans. They also knew that Justice Kennedy was the swing justice and that the Petitioner’s arguments should focus on getting his vote.
To be sure, in many oral arguments before federal appellate courts, you will not know before the argument which judges will support or oppose your argument. But as the oral argument progresses, you will usually be able to identify the judges that support you, the ones that don’t, and those that are undecided. When you do, tailor your argument to the undecided, or swing, judges.
5. Be conversational and relatable, not confrontational and rigid.
Again, when recently judging moot court competitions recently, it became quickly apparent that many of the competitors’ demeanors were excessively formal and impersonal. The rigidity with which the arguments were delivered – along with the defensive reactions to the judges’ questions – made it difficult, if not impossible, to have a genuine conversation with the advocates.
That approach is a mistake. An oral argument should be a conversation, not a confrontation.
Accordingly, when arguing before an appellate court, relax. Show the judges that you are a human being. Show the judges that you have a personality – and even emotion. Be conversational. Be confident. Be relatable. Be likable. Watch actor Edward Norton’s oral argument before the U.S. Supreme Court in The People v. Larry Flynt and you’ll get the point.
Judges – like all people – may be more likely to agree with a litigant that they like.
Of course, you should always be professional and respectful. But if you come across as a robot, you will appear inauthentic and preclude the type of connection with the judges that excellent appellate advocates achieve.
6. Think of the one thing that you want to say – and say it in a way that the judges will not forget.
This needs no explanation.
Watch Matthew McConaughey’s closing argument in A Time to Kill.
 Maryland v. King, 569 U.S. 435 (2013), Transcript of Oral Argument, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2012/12-207-lp23.pdf. (emphasis added).
March 12, 2022 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Law School, Legal Profession, Moot Court, Oral Argument, United States Supreme Court | Permalink | Comments (1)
Monday, February 7, 2022
Judge Jerry Smith of the United States Court of Appeals for the Fifth Circuit has been in the news recently after Gabe Roth,* the executive director of Fix the Court, filed an ethics complaint against Judge Smith. The complaint centers around Judge Smith telling a government attorney who wanted to remain masked during oral argument to remove his mask. Several media sources have reported on the incident, including the ABA Journal. This post, however, is going to focus on what happened about two weeks before the argument.
On December 21, 2021, the government attorney filed an unopposed motion to appear before the Fifth Circuit remotely. The attorney cited the spread of the omicron variant of COVID-19, the fact that he has young unvaccinated kids, and that the Office of Management and Budget had issued guidance “indicating that only mission-critical travel” was recommended at that time. According to the motion, “In evaluating whether or not travel is mission-critical, agency leadership is directed to strongly consider whether the purpose of the travel can be handled remotely.”
This motion was apparently denied. According to another ABA Journal article that I found, it appears that in the Fifth Circuit the choice to proceed in person or via a remote service is being done on a panel by panel basis. I was later able to clarify with the clerk's office that under FRAP 27(c) and the Fifth Circuit's internal operating procedures, requests for remote argument are single-judge motions that are routed through the presiding judge on the panel.** According to that same article, other circuits are currently holding only remote arguments.
If COVID-19 has taught us anything it is (1) to stock up on toilet paper and (2) there are many things that can be done just as well (if not better) remotely. I firmly believe that oral argument is one of those things.
Let’s think of the purpose of oral argument. One of the key purposes of oral argument is to answer the judges’ questions—questions that stem from their review of the briefs and materials. The Fifth Circuit is one of the courts that requires attorneys to request oral argument—and that request isn’t always granted. So, in cases that it is, the judges believe that a conversation with the attorneys will help them decide the case. Having engaged in hundreds of conversations via Zoom over the last two years, including numerous student oral arguments, moots for real attorneys, and large faculty senate meetings, I just don’t see how that purpose of oral argument is diminished by a virtual format.
Another purpose of oral argument is to persuade the judges using your ethos. I do think that this can be harder to do remotely, but not impossible. I have blogged on this site, as have others, on tips for a successful remote argument. It is doable, just different.
I cannot think of any reason why an attorney who wants a remote argument, especially if the other side agrees, should not be allowed to present remotely—pandemic or not. And while there are countless reasons why remote argument should be allowed, I want to focus on two. The first is cost. Why should the taxpayers pay flight, hotel, and per diem for an attorney to fly from D.C. to San Francisco or New Orleans or Anchorage to deliver a 10-minute oral argument when that attorney could appear remotely. Likewise, non-profit organizations that engage in advocacy work could experience tremendous cost savings with remote arguments.
The second reason is convenience. Convenience probably isn’t the best word, but it is all that I am coming up with right now. As the mom of two very young kids (3.5 and 1.5), it is hard for me to leave town and travel. My spouse and I are fortunate enough to have family in town for half the year, and they stay at our house when either my husband or I are traveling. But, not everyone who is in a caretaking role is that lucky. Remote arguments would allow me to have an appellate practice, but still be there at night to tuck in my kids at night.
Allow me a real-life example. In June 2019 (yes, pre-pandemic!), I was set to travel to South Carolina to speak at the National Advocacy Center. It was a pretty neat opportunity—I would be presenting to the Appellate Chiefs from the U.S. Attorneys Offices. Shortly before the event, my son, who was 15 months old at the time, got very ill. He was hospitalized for a few days, and I did not feel comfortable leaving town. With the help of the U.S. Attorney’s Office in Tucson, I was still able to give my presentation remotely. I headed to their downtown office and used their video conferencing software. Since it was pre-pandemic, it was little bit of a clunky presentation, but overall I think that it was still effective. And, I was able to be home if my son’s condition regressed (thankfully it didn’t).
After nearly two years of pandemic I get that we are ready to be back to “normal.” But I don’t see any reason why “normal” can’t include some of the amazing technology advances that we have become accustomed to using. If you allow me one more story—my husband and I traveled last weekend to a conference and left our kids with my parents. It was the first time we had done so. While we were driving to our destination, I called to check in on things and “chatted” with our 19-month-old. As we “talked” I could hear my mom telling her that this call didn’t include a video. Afterwards, I reflected to my husband that our kids will only know a world where there is video calling. That is remarkable to me—I remember how novel it was when dad got a brick cellphone. And while we can and should be careful that we don’t become addicted to technology, there is no reason we can’t use it to work smarter and more efficiently. And, if it allows me to have more hugs and slobbery toddler kisses at night, rather than staying alone in a hotel room, I am all for it.
*Edited to fix the name of the executive director of Fix the Court.
**After writing this post, I learned the underlined information from the clerk's office. I have updated the article to reflect that information. A big thanks to the clerk's office for answering my questions. When in doubt, call the clerk!
Sunday, January 30, 2022
Justice Stephen Breyer’s announced retirement has brought forth retrospectives about his legacy as a pragmatist who cared about the real-life consequences of the Supreme Court’s decisions. Among the tributes was a heartfelt statement from Chief Justice John Roberts that revealed a little-known insider secret about Breyer: Breyer treated his colleagues to a “surprisingly comprehensive collection of riddles and knock-knock jokes."
To advocates before the Court, Breyer was known for his paragraphs-long questions that worryingly ate into your time and sometimes, as the Chief Justice said upon Breyer’s retirement, contained “fanciful hypotheticals … [that] have befuddled counsel and colleagues alike.” Breyer loquacious tendencies were well-known to him and used to make self-deprecating jokes. He was fond of telling the story that, once as a Harvard law professor, he received an anonymous note from a student, who wrote, “Professor Breyer, if I had only one hour to live, I should like to spend it in your class.” Breyer then notice that the back of the note had more to say: “That’s because only in your class does one hour seem an eternity.”
Breyer’s long tenure on the Court, 27 years, included a modern record of eleven years as the junior justice. The junior justice answers the door when the justices meet in conference. Justice Antonin Scalia would regularly have someone deliver a cup of coffee to the conference at its midpoint. When that happened, Breyer would dutifully answer the door and serve Scalia the coffee. After having done the job for ten years, Breyer reported that he said to Scalia, “I’m getting pretty good at this.” He said Scalia’s answer was, “No, you aren’t.”
Eleven years of performing a task can become a habit. At the first conference after Justice Samuel Alito succeeded Breyer as the junior justice, Breyer stood during conference as soon as he heard a knock at the door. Breyer stopped in his tracks when Roberts told him, “Steve, sit down, that’s not your job anymore.”
Another task of the junior justice is membership on the Court’s cafeteria. The Washington Post’s food critic, on more than one occasion, has not only given the food a failing grade, but suggested that its fare should be declared “unconstitutional.” Justice Elena Kagan calls the assignment a form of “hazing,” intended to bring a new justice down from the heights of having acquired a plum, life-tenured job at the height of the legal profession. Justices will purposely comment on how bad the food is and then ask who is on the cafeteria committee, “as if they don’t know!” Kagan said. Nonetheless, while it was his turn on the committee, Breyer dutifully would walk around the cafeteria from time to time, asking patrons about what could be improved. His innovations while a member of the committee: a salad bar and Starbucks coffee.
Breyer wrote two of the majority opinions in cases I argued at the Court and memorably filibustered in another oral argument when my opponent ran out of things to say, taking up the dead airtime. In the most recent decision he wrote in one of my cases, it was clear to me that he corralled the fifth vote I needed to prevail by writing about a topic that was left undecided and asking for lower court guidance. In the earlier one, I was on the short end of a 5-4 decision. The case returned to the Court two years later on the issue of whether the Oregon Supreme Court had defied the earlier decision by restoring our victory. Oregon allowed a 97:1 punitive to compensatory damage ratio after the Supreme Court held that a defendant had a right to have a jury instruction limiting the size of the punitive damages to the harm specific to the plaintiff, rather than others. Oregon subsequently held, as we had pressed all along, that the defendant’s requested jury instruction misstated Oregon law and that there was no error in refusing to give it.
In our return to the U.S. Supreme Court, the case turned on whether this “clear and correct in all respects” rule on jury instructions was well-established and regularly applied by the state courts. Breyer asked for my opponent’s best case on the issue. When I stood up, he soon asked me the same question. I had cited thirty-two cases over a 78-year period in my brief but replied that I am happy to rely on one case that both sides cited, because it really favored my client. Breyer chuckled and revealed that he had that case in front of him. He read a sentence to me that seemed to support the other side and asked me to explain it. My answer noted that he had left off the dependent clause of the sentence, which completely changed its meaning. He agreed, saying that he voted to grant certiorari because he believed the Oregon court was giving his court the “runaround.” He added, I do not believe that anymore. It was the signal I needed that, as turned out to be the case, the Court agreed with my suggestion that the case be dismissed as improvidently granted.
Courts are institutions, but institutions made up of people. Understanding those individuals who serve as judges can influence how you brief or argue a case. Justice Byron White said the arrival of a new justice creates a new Court. Unquestionably, the dynamics can change, and the experience brought to the Court by the new justice can alter the perspective of those who remain. There is no doubt that Justice Breyer changed the Court with his arrival and had an impact on his colleagues’ outlook over his tenure. For at least one advocate, he figured importantly in a significant percentage of his cases.
 Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296 (2017)
 Philip Morris USA v. Williams, 549 U.S. 346 (2007).
 Philip Morris USA Inc. v. Williams, 556 U.S. 178 (2009) (mem.).
Sunday, January 16, 2022
As the pandemic became undeniable and understandings of its infectious nature grew, most courts adjusted to remote arguments, and many trial courts experimented with Zoom juries. In March 2020, I had a live argument in another state. My family, concerned about my well-being, loaded me up with trial-sized hand sanitizer, KN95 masks, and nitrile powder gloves. I recall feeling reassured when my departure airport was empty, only to discover that my connecting airport was a madhouse of largely unmasked travelers. Once in the courtroom, the presiding judge asked everyone to keep social distances, especially from the bench, as well as announced that the courthouse was being closed to the public indefinitely as soon as my oral argument concluded – something that made me wonder whether that decision was a day too late.
Two months later, I had another oral argument that required a flight and hotel room to attend. Again, well-equipped to do everything that the latest medical advice suggested, I went. The judge immediately advised the attorneys to take off their masks, suggesting that we should have nothing to worry about from co-counsel seated at the table with us. And rather than chance getting on the bad side of the judge, we dutifully complied.
Most of my arguments since then have taken place in my study at home through Zoom. During one argument before a Seventh Circuit panel, despite taping a sign to my door that alerted my family that I was arguing a case and that no one should enter, I heard the door open. I wondered who could have missed the sign, but remained focused on the judges in the on-screen tiles and my answers to their questions. Only after the argument was over and I had disconnected from the court, did I turn around to see that the door was left open. Turning further, I spotted the culprit – one of our dogs had opened the door and quietly come into the room, hopping up onto her favorite chair to watch the argument. I had not spotted her over my right shoulder but felt sure that the judges had. I wondered whether I may have won some points for her complete silence, knowing that the judges were likely to be understanding about the circumstances of arguments in the age of COVID. At least I did not have to assure them that I was not a cat.
In another instance, when New Orleans was particularly hard hit, I contacted opposing counsel, who also would have had to travel, about seeing if we could petition the Fifth Circuit about changing the scheduled in-court argument to Zoom. The court kindly accommodated us.
Today, weariness over remote arguments has set in. In fact, in a recent filing opposing a Zoom trial, defense counsel in a case pending in federal court in California cited “Zoom fatigue” as one reason to grant a continuance to a time when a live trial might be held.
The availability of vaccines and boosters appears to have convinced many, perhaps prematurely given the spread of the Omicron variant, that the time to appear in person has arrived once again, even if some appellate courts have recently reversed engines and notified counsel that remote arguments will replace their scheduled live arguments over the next few months. I recently had one argument postponed a month because opposing counsel tested positive shortly before the scheduled argument.
While I have discussed in an earlier post some advice about arguing remotely, the basics of preparation, whether live or remote, remains the same. For most arguments, months have passed since the briefing ended. Counsel needs to review everything in the case: Transcripts, arguments, supporting and conflicting authority. In one U.S. Supreme Court argument I had when no justice had any trial experience, I was asked by a justice just how one of these cases is tried in that particular state. As a purely appellate lawyer, I was an inexperienced at trial as the justices were. Moreover, I was neither admitted in the state from which the case came nor had ever witnessed any of the trial. I said that, based on the transcript, I could only describe how this case was tried and then proceeded to do so. The justices’ fascination with trial meant that it was the longest period I had during oral argument in that case without an interrupting question. The point is that preparation must be comprehensive, even about matters that do not affect the outcome.
The Supreme Court produces a Guide for Counsel arguing before that court. In it, it relates an anecdote about a commercial free speech case in which counsel, representing a beer company, was asked, “What is the difference between beer and ale?” The inquiry had no substantive effect on the case, but the justice received a knowledgeable answer. As the guide states, counsel “knew the business of his client, and it showed.”
With comprehensive preparation, counsel can be prepared for an unexpected question that may not go to the merits of the case but enhance credibility – and be well prepared when a scheduled argument switches from live to remote and vice versa.
 Counsel cited “How to Combat Zoom Fatigue,” Harvard Business Review (April 29, 2020); and “‘Zoom Fatigue’ Is Real. Here’s Why You’re Feeling It, And What You Can Do About It,” News@Northwestern, (May 11, 2020).
 Clerk, Supreme Court of the United States, Guide for Counsel, at 7 (Oct. Term 2021).
Sunday, December 26, 2021
On December 1, 2021, the United States Supreme Court heard oral argument in Dobbs v. Jackson Women’s Health, where the Court will decide the constitutionality of a law in Mississippi that bans all abortions after fifteen weeks of pregnancy.
By way of background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s Due Process Clause, which prevents states from depriving citizens of “life, liberty, or property … without due process of law,” encompassed the right of a woman to terminate a pregnancy. In so doing, the Court adopted a trimester framework: during the first trimester, women had an unfettered right to terminate a pregnancy. During the second trimester, states could regulate abortion access, provided that such regulations were reasonable and narrowly tailored to protect a woman’s health. In the third trimester, states were permitted to ban all abortions, except those necessary to protect the mother’s health.
Nearly two decades later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed the central holding in Roe but rejected the trimester approach. In so doing, the Court adopted a viability framework, stating that, before viability (i.e., the state at which a fetus can survive outside the womb, which occurs at approximately twenty-four weeks of pregnancy), states could not place an undue burden on a woman’s right to have an abortion. After viability, states could regulate, and perhaps ban abortions except where necessary to protect the health and life of the mother.
Not surprisingly, the Court’s decisions in Roe and Planned Parenthood were heavily criticized by both conservative and liberal scholars. Indeed, scholars noted that the Constitution’s text – particularly the Fourteenth Amendment – could not be interpreted to include a right to abortion. As Harvard Law professor Lawrence Tribe stated, “behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found." Likewise, late Justice Ruther Bader Ginsburg characterized Roe as “heavy-handed judicial intervention,” a matter of constitutional interpretation. And Edward Lazarus, a former clerk to Justice Harry Blackmun, stated that “even most liberal jurisprudes — if you administer truth serum — will tell you it is basically indefensible."
Regardless, in Planned Parenthood, the Court reaffirmed Roe’s central holding, and for nearly fifty years, women have had the fundamental right to access abortion services, particularly during the first trimester. Thus, principles of stare decisis, and concerns for the Court’s institutional legitimacy, counsel in favor of protecting this right even though Roe is indefensible as a matter of constitutional law. After all, if in Dobbs the Court overturns Roe, it would only be because a majority of current justices are more conservative than their predecessors. Thus, overturning Roe would suggest that constitutional meaning can – and does – change simply because the political and ideological predilections of the justices change. In other words, it would suggest that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2021 than there were in 1973 or 1992. That is a recipe for destroying the Court’s legitimacy.
B. Dobbs v. Jackson Women’s Health
So how is the Court likely to rule in Dobbs? Below is a summary of the justices’ positions during oral argument, and a prediction of how the Court will ultimately rule.
Justices Elena Kagan and Sonya Sotomayor. Justices Kagan and Sotomayor appeared concerned that a decision overturning Roe would severely undermine the Court’s institutional legitimacy. It’s fair to say that Kagan and Sotomayor will vote to invalidate the Mississippi law.
Justices Clarence Thomas and Samuel Alito. Justices Thomas and Alito will almost certainly vote to overturn Roe and return the abortion debate to the states. Thomas, for example, questioned whether Roe was based on the right to privacy, liberty, or autonomy; his questions suggested that he believes (rightfully so) that there is no textual basis to support the right to abortion. Justice Alito appeared to disagree that stare decisis principles supporting upholding Roe and suggested that Roe could be overturned if the Court believed it was wrongly decided.
Justice Brett Kavanaugh. Justice Kavanaugh appeared poised to overturn Roe or limit abortion rights. For example, Kavanaugh suggested that overturning Roe and returning the abortion debate to the states would simply return the Court to a position of neutrality on the abortion issue. Given the Court’s decisions in Roe and Planned Parenthood, however, coupled with the fact that the Court’s more conservative membership, not any new constitutional or scientific developments, would arguably underlie a decision to overturn Roe, it can hardly be argued that such a decision would return the Court to a position of neutrality. Instead, it would be perceived – rightfully so – as a blatantly partisan decision. It is difficult to believe that Justice Kavanaugh is not aware of this fact. Additionally, Kavanaugh did not appear receptive to the stare decisis argument, noting that the Court had, in many instances, overturned precedent, most notably in Brown v. Board of Education (overturning Plessy v. Ferguson). What Kavanaugh failed to acknowledge, however, was that in most of these decisions, the Court’s decisions overturning precedent expanded, rather than limited, constitutional protections. Ultimately, Kavanaugh’s questions revealed a willingness to overturn Roe, although it is certainly possible that he will adopt a middle-ground approach that marginally upholds Roe but limits the time within which women may access abortion services.
Chief Justice John Roberts. Not surprisingly, Chief Justice Roberts, who is concerned primarily with preserving the Court’s institutional legitimacy rather than developing a coherent jurisprudence, sought to find a middle ground that would limit, but not eliminate, abortion rights. From his questions, it appears that Roberts supports upholding the Mississippi law yet also reaffirming (albeit limiting) the abortion right. Specifically, Roberts may reject the viability framework and hold that women have the right to access abortion services within a reasonable time after becoming pregnant.
Justice Amy Coney Barrett. Justice Barrett’s questions were quite surprising, to say the least. Most significantly, Barrett implicitly distinguished between the burdens of pregnancy and parenthood and, in so doing, minimized the burden of pregnancy. Specifically, Justice Barrett suggested that, because states have “safe haven laws” allowing women to surrender newborn babies to a medical facility without fear of criminal prosecution, a law outlawing abortion would not materially burden women’s ability to participate equally in society. This question was quite troubling because it reflected ignorance of the physical, emotional, and psychological burdens that a pregnancy engenders, including the deleterious consequences that carrying a pregnancy to term can have on a woman’s personal and professional life. Based on this question alone, it appears that Justice Barrett will uphold Mississippi’s law and, in so doing likely to either vote to overturn Roe and return the abortion issue to the states or vote to limit the time within which women may access abortions.
Justice Stephen Breyer. Justice Breyer’s questions left no doubt that he will vote to invalidate Mississippi’s law and uphold Roe and Planned Parenthood. During the oral argument, Breyer emphasized that Roe was a watershed decision and that principles of stare decisis thus required special and compelling justifications to overturn Roe, which could not be satisfied simply because the Court believed Roe was wrongly decided.
Justice Neil Gorsuch. Justice Gorsuch’s questions suggested that he was deeply skeptical of Roe and the viability framework, but that he was searching for a middle ground that would uphold yet limit the right to abortion.
Of course, the justices’ questions at oral argument are not necessarily indicative of how they might rule. In Dobbs, however, the justices’ questions appeared to reflect fairly entrenched positions regarding the right to abortion and the validity of the Court’s precedents.
Prediction: A majority (five or six votes) will vote to uphold the central holding of Roe. However, the Court will reject the viability framework and hold that women have a right to access abortion services within a reasonable time after becoming pregnant. During this time, the Court will hold that states may not unduly burden a woman’s right to access abortion services.
 410 U.S. 113 (1973).
 See id.
 See id.
 505 U.S. 833 (1992).
 See id.
 Carrie Severino, Dobbs: The Court’s Historic Moment (Part 2) (Nov. 26, 2021), available at: Dobbs: The Court’s Historic Moment (Part 2) | National Review
 Timothy P. Carney, The Pervading Dishonest of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner
December 26, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)
Sunday, December 5, 2021
In a New York Times column, Linda Greenhouse, who covered the Supreme Court for that venerable newspaper for many years, took off her gloves to call out some of the justices for the questions they posed during oral argument in Dobbs v. Jackson Women’s Health Org. The justices’ queries suggested not only that Mississippi’s ban on abortion after 15 weeks the challenge but could, as many predicted, also overturn Roe v. Wade rather than simply further whittle it down. She called many of the questions as “gaslighting” because they struck her as disingenuous for what struck her as pretextually innocent varnish that belied the justices’ hardened positions.
Two of the exchanges Greenhouse discussed have implications for oral advocacy that bear further examination. Greenhouse gave her “gaslighting prize” to Justice Kavanaugh for asking what would be wrong if the Court took a position of neutrality on abortion, so that there could be “different answers in Mississippi and New York, different answers in Alabama than California because they’re two different interests at stake and the people in those states might value those interests somewhat differently.”
Solicitor General Elizabeth Prelogar answered by noting fundamental rights are not left up to state legislatures to decide whether to honor them or not.” The question and answer suggest that the two participants in that conversation were operating from very different assumptions. Prelogar’s answer is grounded in a belief that Roe declared a fundamental constitutional right that the courts must uphold, while Justice Kavanaugh’s question presupposes that there is no basis for Prelogar’s position – or the foundations upon which Roe was built.
The Supreme Court’s new argument format meant that that answer had to do because it was not Justice Barrett’s turn to ask questions and she moved the conversation back to another topic. Still, what’s an advocate to do when a judge asks a question that telegraphs rejection of the fundamental premise of your argument? In some arguments, a Plan B might be possible, arguing a different and potentially more acceptable alternative legal theory. A Plan B, however, did not seem possible in Dobbs.
Another alternative is to abandon hope that the questioner could be the linchpin to victory and concentrate on others on the panel who might vote your way. However, with Justice Kavanaugh occupying the Court’s center and often considered the weather vane for a majority view, that hope seems remote. A further tactic is to go down with guns blazing, understanding that you are unlikely to prevail, but making a full-throated defense of the foundation for your argument that the judge has put into doubt. The danger of such an approach, regardless of how self-satisfying it might be, is that it often leads to a comprehensive defeat. In the end, however, questions of that sort, particularly when similar skepticism is expressed by others, likely foretell defeat.
Interestingly, Greenhouse made the connection between Justice Kavanaugh’s questions in Dobbs about adopting a position of neutrality so States could regulate abortion as the wish to the very different attitude he and other justices seemed to display in the recent argument in New York State Rifle & Pistol Ass’n, Inc. v. Bruen. There, New York advocated, on the basis of history and tradition, that states and localities had long adopted quite different approaches to gun regulations and licensing that should be allowed to continue without offending the Second Amendment. The challengers to the state licensing law argued that the Constitution did not allow as much leeway as New York had taken in the 1916 law under review.
Linkage between guns and abortion may have first been expressed by Judge J. Harvey Wilkinson III of the Fourth Circuit in a 2009 Virginia Law Review article. He found that both foundational decisions, Roe and District of Columbia v. Heller, criticized and celebrated differently based on ideological preferences, suffered from the same flaws: a failure to utilize textualism to achieve a result, disregard for the complexities that the decision would engender so that much litigation would be spawned, indifference to legislative judgments, and a lack of concern for federalism. Key to his approach is a rejection of the constitutional foundations of both decisions.
In the end, the answer in both cases, Dobbs and Bruen, turn on the justices’ acceptance or rejection of the underlying rights at issue – and even the most brilliant oral argument is unlikely to transform ingrained perspectives.
A second exchange also teaches a fundamental lesson on oral argument. It exemplifies a rule that judges can do what they want, but advocates are more limited. Chief Justice Roberts asked whether viability was briefed and argued in Roe as a line of demarcation, referring to a statement in Justice Blackmun’s papers about a draft of the Roe opinion that he was struggling to produce at the time. In it, he referred to the trimester approach the opinion took as arbitrary and a form of dicta but said that so would tying the right to quickening or viability.
Chief Justice Roberts referred to the Blackmun papers as an “unfortunate source,” but nonetheless posed the question. As Greenhouse points out, the paper the chief justice cited was superseded after conversations with Justices Marshall and Powell. Justice Blackmun’s new memo after called viability justified on “logical and biological” grounds that few could argue with.
The oral advocacy question is whether counsel, in a case where a judge did not raise the question, could fruitfully raise private papers – or remarks from the bench, for that matter – to make that type of point the chief justice did, when it is not reflected in the opinion that was issued. It is one thing to recall a point made by one of the judges during that oral argument. However, it would seem inappropriate for an advocate to use an “unfortunate source” the way the chief justice did.
 410 U.S. 113 (1973).
 No. 20-843.
 Judge J. Harvey Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253 (2009).
Thursday, November 25, 2021
To be sure, the last couple of years have been difficult for many of us. But there still are reasons to be thankful this Thanksgiving. As an appellate practitioner, I am thankful for many things this year:
- Westlaw and Lexis. How did I ever find any controlling law without them when I was in law school and when I was a young attorney?
- Rules of Appellate Procedure. Okay, I'm a rule follower. And rule followers like rules.
- The Oxford comma. Without it, I might write this: "I'd like to thank my parents, God and the Virgin Mary." But with it, I really mean this: "I'd like to thank my parents, God, and the Virgin Mary." It also could save someone millions of dollars.
- American English. We fought a war so that we don't have to spell and punctuate like the British do (interestingly, the British don't seem to use the Oxford comma much). Of course, my students have a hard time understanding that in the United States we place periods and commas inside quotation marks.
- Dashes, colons, and semi-colons. They are way undervalued and underutilized.
- Microsoft Word. No, I'm kidding about that. Bring back my WordPerfect (or at least give me some version of WordPerfect's "Reveal Codes").
- The return to in-person oral arguments at the United States Supreme Court and at appellate courts across the country.
- The streaming real-time audio of United States Supreme Court arguments that has continued even after the return to in-person arguments.
- The opportunity to attend live conferences again. The Appellate Judges Education Institute Summit this year was fantastic. You should go next year if you have the opportunity.
- Our justice system--as flawed and imperfect as it might be. We can all work together to make it better.
- People who still try to objectively apply facts to law instead of deciding how they believe cases should turn out based on their own personal agenda. Yes, there are a few of these people left.
- Blogs like this that let nerdy appellate types bond over things like punctuation and citations (have you seen the posts about using "cleaned up" in parentheticals?).
Here's hoping that 2022 will bring us even more to be thankful for. Happy Thanksgiving!