Appellate Advocacy Blog

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

Saturday, July 4, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 4, 2020

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

Happy Independence Day!

 

US Supreme Court Opinions and News

  • The Supreme Court issued a much-anticipated order on abortion this week, striking a Louisiana law that required doctors performing abortions to have admitting privileges at nearby hospitals. The Louisiana law was “almost word-for-word identical to Texas’ admitting privileges law,” which the Court struck in 2016 in Whole Woman’s Health v. Hellerstedt. Justice Breyer penned this order, joined by Justices Ginsburg, Sotomayor, and Kagan, and found the Louisiana law to be an unconstitutional inference with a woman’s right to obtain an abortion. Like in the 2016 decision, the ruling finds that the law’s requirements have no medical benefit. Justice Roberts, who dissented in the 2016 Texas decision, concurred in the judgement, writing that he still believed the 2016 ruling to be “wrongly decided” but that stare decisis compelled this decision. See opinion and a sampling of the many reports from The New York Times, The Wall Street Journal, The Washington Times, and NPR.

  • The Court ruled that a Montana tax break that excluded religious institutions discriminated against religious schools, finding that states must allow religious schools to participate in programs that provide scholarships.  See opinion and a report from The New York Times.

Federal Appellate Court Opinions and News

  • The Seventh Circuit, after a three-year delay, reinstated some Wisconsin limits on voting, including laws on voter ID and early voting procedures. The court overruled the lower court that found that many of Wisconsin’s election laws disproportionately affected the ability of minorities to vote. The court found no evidence that lawmakers intended to discriminate against minorities, finding “[t]his record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” And the court found that the limits did not violate the First Amendment or the Voting Rights Act because “they leave all voters with equal opportunities to participate.” See the opinion and reports from The Milwaukee Journal Sentinel, The Courthouse News, and  The Election Law Blog.
  • A panel of the D.C. Circuit ordered the immediate dismissal of the criminal case against Michael Flynn.  See reports from The New York Times, The Associated Press, and The Hill.

State News

The Pennsylvania Supreme Court ruled that the state legislature cannot unilaterally end the governor’s pandemic shutdown orders. Specifically, the ruling determined that the lawmakers resolution to end the orders was a “legal nullity” because it was not presented to the governor for signature or veto. See reports from The Associated Press and The Patriot-News of Harrisburg.

July 4, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, June 21, 2020

The Nature of Judging at the United States Supreme Court

This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California ­– that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity.[1] In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex.[2] In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.[3]

The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.

So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”[4]

Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.

I.    Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts

The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.

Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.[5]

But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision.[6] And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage.[7] Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.

Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.

II.    Ideology matters – for conservative and liberal justices

For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.

However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.

Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.

III.    Bias matters – for both liberal and conservative justices

Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women.[8] In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.”[9] Additionally, African-American defendants often receive harsher sentences than white defendants.[10] As one scholar explains:

[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.[11]

Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.”[12] In so doing, the potential for reaching an improper result increase substantially.

IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”

Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.”[13] As researchers explain:

[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.[14]

Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.

V.    Intuition matters

Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.”[15] As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.”[16] In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.

***

Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.

 

[1] See 590 U.S. ___ , 2020 WL 3146686.

[2] See id.

[3] See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.

[4] Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.

[5] 567 U.S. 519 (2012).

[6] 570 U.S. 529 (2013).

[7] 576 U.S. 644 (2015).

[8] See id.

[9] Id. at 28 (internal citation omitted).

[10] Id. at 29.

[11] Id. at 32.

[12] Id. at 16.

[13] Id. at 24.

[14] Id. at 27.

[15] Id. at 14.

[16] Id. at 21.

June 21, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, June 20, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, June 20, 2020

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

US Supreme Court Opinions and News

  • Earlier this week, the Supreme Court in a 6-3 decision ruled that the plain language of the Civil Rights Act of 1964 applies to discrimination based on both sexual orientation and gender identity. Widely seen as a landmark decision, the ruling applied textualist principles and found that the plain language unambiguously protects gay, lesbian, and transgender employees because decisions discriminating for those reasons are—at their core—decisions discriminating because of sex. The opinion recognizes that "[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex.”  See the opinion and a sampling of the many reports from NPR, The New York Times, The Washington Post, and Bloomberg Law.
  • On Thursday, in another much-anticipated case, the Court ruled 5-4 that the administration’s attempt to end DACA is impermissible. Justice Roberts writes, “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ [citation omitted.] We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” See the opinion and a sampling of the many reports including from The New York Times, CNN, NBC News, and NPR.  

Federal Appellate Court Opinions and News

  • Last week, the Fourth Circuit invoked the murder of George Floyd in its opinion reversing a lower court and refusing to apply qualified immunity to dismiss a lawsuit again police officers who shot a black American 22 times after the victim had been subdued. The opinion found that if the victim “was secured, then police officers could not constitutionally release him, back away, and shoot him. To do so violated [his] constitutional right to be free from deadly force under clearly established law." The opinion also states that, “[a]lthough we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop.” See the opinion and reports from CNN, The Washington Post, and The National Law Journal.
  • Today, a federal court denied an emergency request from the Justice department block former national security adviser John Bolton's book from being published. The court held that, “while Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy.” See reports from The Hill, CNN, and NPR (find order at NPR link).   

June 20, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, June 8, 2020

Practice in Place: My Interview with David Lat

Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian.  Today I am sharing an interview that I did recently with David Lat.  David is the founding editor of the popular blog Above the Law.  He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19.  He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background.  Thanks David for joining me for the interview!

Edited: Sorry about the video issues, I think that it is fixed.

 

 

 

 






 

 

 

June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, June 6, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, June 6, 2020

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

US Supreme Court Opinions and News

In a 5-4 decision with Justice Roberts as the swing vote, the Supreme Court rejected an emergency appeal by a California church that challenged Covid-19 related restrictions on attendance at worship services. The church argued that the state guidelines limiting attendance at places of worship to 25% of building capacity or a maximum of 100 attendees violate constitutional guarantees of religious freedom. Justice Roberts concurred in the denial and wrote that the “restrictions appear consistent with the Free Exercise Clause of the First Amendment” and that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect.” (Internal quotes and citations omitted.) See opinion and a sampling of the many reports from The New York Times, The Washington Times, The Associated Press, Reuters,

Federal Appellate Court Opinions and News

The District Court for the District of Arizona ruled that a same-sex spouse cannot be denied Social Security survivor benefits for failure to meet the marriage duration requirement without consideration of whether the marriage was prohibited by unconstitutional laws barring same-sex marriage. For a surviving spouse to receive Social Security benefits, the couple must have been married for “a period of not less than nine months.” (42 U.S.C. 416(g).). The SSA argued that the provision was neutral because it applied equally to all seeking benefits. The court rejected that claim because same sex couples have been impacted by law prohibiting their marriages, which affects their ability to meet the marriage duration requirement.  The opinion recognizes that, “[b]ecause same-sex marriage is a fundamental right, and the underpinnings of the duration-of-marriage requirement has relied on the unconstitutional ban of that right, [the regulation] cannot be said to be rationally related to a legitimate interest to a surviving spouse.” See ruling and case summary and reports from Slate and NBCNews.

State Court Opinions and News

The nine justices of the Washington Supreme Court, in an extraordinary step, penned an open letter to the legal community addressing racial injustice. The letter recognizes the role of the judiciary and the legal community in the continuing injustices against black Americans. From the letter:  

Recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.

The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. . . .

As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong—but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.

See the full letter and reports from The National Law Journal, Law.360, and The Tacoma News Tribune.

June 6, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, May 23, 2020

Reviewing the United States Supreme Court’s Decision in Kahler v. Kansas

In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.

I.    The Court’s Decision

By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.

In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime.[1] Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.”[2] Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness.  Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.”[3] Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”[4]

II.    Analysis

The Court got it wrong.

There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong.  Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.

Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”[5]

Justice Breyer explained as follows:

A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.[6]

That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.

III.       Broader Problems With the Insanity Defense

The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling.[7] Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.

As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.[8]

IV.    Reforms

Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.

Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.

 

[1] See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf

[2] Id.

[3] Id.

[4] Id. (internal citation omitted).

[5] Id.

[6] Id.

[7] A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.

[8] This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.

 

May 23, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, May 22, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 22, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court unanimously ruled that Sudan must pay the over-$10 billion judgement awarded to the victims of the 1998 al-Qaeda bombing of the U.S. embassies in Kenya and Tanzania. The ruling allows Sudan to be held liable for both punitive and compensatory damages. A 2014 appellate ruling had determined that a 2008 law that permitted retroactive application of compensatory damages to cases involving state-sponsored terrorism did not extend to punitive damages.  The Supreme Court reversed that ruling and reinstated the 2012 judgment.  See opinion and reports from Bloomberg, The Washington Post, and The Associated Press.  

  • The Court refused to grant Idaho officials' request to block a transgender inmate’s surgery pending appeal.  The ruling leaves in place a Ninth Circuit order ruling that, by failing to provide the inmate’s gender confirmation surgery, Idaho violated the Eight Amendment’s ban on cruel and unusual punishment. Idaho is appealing to the Supreme Court, which has not yet decided whether it will hear the case. See reports from The New York Times and NBC News.

  • The Court has refused to grant an “emergency” request by two Texas inmates to reinstate a district court order that had required a Texas prison to take measures to protect inmates against the threat of COVID-19. A federal appeals court stayed the order pending appeal and found that the measures required by the district court’s order went further than Centers for Disease Control and Prevention guidelines.  Although agreeing with the ultimate decision to deny the request, Justice Sotomayor issued a statement, to which Justice Ginsberg joined, to “highlight disturbing allegations” in the case. She writes: "It has long been said that a society's worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales." See Justice Sotomayor’s statement and reports in The New York Times, CNN, The Wall Street Journal, and Bloomberg Law.

Federal Appellate Court Opinions and News

  • The Fourth Circuit has allowed an emoluments suit against the president to proceed. The case, by Washington D.C. and Maryland, alleges that Donald Trump violated the Constitution by profiting from foreign and state patrons at his Washington, D.C., hotel. The court found a genuine dispute over the definition of an “emolument,” writing “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one.” See opinion and a sampling of the many reports at The New York Times, The Courthouse New Service, The Hill, Politico, and The Washington Post.   

  • The Fifth Circuit has temporarily stayed a Texas district court’s May 19 ruling that would have allowed voters in Texas to vote by mail during the COVID-19 pandemic. The district court’s ruling found that the disability provision in the Texas vote-by-mail code applied to voters who “lack immunity from COVID-19 and fear infection at polling places.” See report at CNN, The Texas Tribune, and The Dallas Observer.

  • The Sixth Circuit granted rehearing en banc and vacated its decision finding that the “the Constitution provides a fundamental right to a basic minimum education” and defining that as an education that “plausibly provides access to literacy.”  This column reported on the Sixth Circuit’s right-to-education decision a few weeks ago.  See the order granting rehearing and reports from Bloomberg Law and Detroit Free Press.

State Court Opinions and News

  • In Michigan, the court have upheld the governor’s right to extend a stay-at-home order. Michigan residents claimed that the stay-at-home measures infringed on their constitutional rights.  The court recognized that the state has authority to enact policy when “faced with a public crisis” and determined that the policy was consistent with the law.  The court further iterated that a citizen’s constitutional rights are “subject to reasonable regulation by the state.”  See report by CBS News and The Hill.
  • In Wisconsin, the state supreme court struck down the governor’s stay-at-home order, ruling that the governor had overstepped his authority by extending the quarantine measures without consulting the legislature.  See the opinion and reports from The Associated Press, The Hill, and Wisconsin Public Radio.
  • In Oregon, the state supreme court stayed a county judge’s ruling that declared the governor’s COVID-19 measures concerning church gatherings “null and void.” See report in The Oregonian.

May 22, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, May 20, 2020

Chief Justice Roberts, Timecop: data-driven analysis of telephonic oral argument in the Supreme Court

In the time it takes for most of us to formulate a coherent thought, @LeahLitman has written an entire paper.

Prof. Kate Shaw

The team here at the Appellate Advocacy Blog has discussed impressions, both our own and those of others, of telephonic oral arguments in the United States Supreme Court. We're fresh off the Court's reluctant pivot in the first two weeks of May to socially-distanced oral argument. And because the Court adopted telephony rather than video, it had to adjust the process of oral argument: the rapid-fire, justice-dominated, interruption-heavy free-for-all dynamic of modern SCOTUS oral argument would devolve into crackling chaos if freighted without modification into a world of sound and fury, void of visual cues. So adjust it did: the justices asked questions in turn, in order of seniority. And they did so under relatively strict time management by the Chief Justice.

As we've seen from the fascinating work of scholars like Tonja Jacobi and others (which I've discussed here and here), there's much one can draw from careful analysis of data from oral arguments. So, as the dynamic of oral exchanges at SCOTUS has shifted in These Challenging Times, it's cool to see scholarship already emerging that extracts and analyzes data from the arguments. Nearly two weeks ago, in a post at his Empirical SCOTUS blog, Adam Feldman broke down the first four telephonic arguments and compared them to the four most recent traditional arguments. Yesterday, Feldman further developed this analysis in a post on SCOTUSblog; it is the first in a three-part series. One of Feldman's conclusions is that the new format "offers an interesting lens into potential improvements for oral arguments moving forward": according to his analysis, the more structured, centrally governed format led to broader participation by the justices, afforded the justices greater chances to interact with counsel, and gave advocates better opportunities to respond to questions. In earlier work, Feldman and Rebecca Gill of the University of Nevada Las Vegas suggested that the Court do what suddenly sounds familiar: (1) have the Chief Justice exercise more control over who asks what and when, and (2) have justices ask questions seriatim, by seniority. Among the possible benefits of a more structured, moderated conversation: fewer interruptions of women justices, a phenomenon that Feldman & Gill carefully analyze and that's the subject of fantastic work by Jacobi and Dylan Schweers

And that brings us to the work of Leah Litman. Yesterday, Professor Litman posted her analysis of the telephonic arguments. Among the many interesting strands she identifies: at least in this tiny dataset, gendered (and ideological) interruptions appear to persist when the Chief, like Jean-Claude Van Damme, plays time cop. Although Chief Justice Roberts generally enforced time limits on justices' questioning period by interrupting advocates, Litman tallies 11 instances in which he interrupted a justice. Nine were of women. The Chief cut off Justice Sotomayor six times and Justice Ginsburg three. (He also cut off Justice Breyer twice. My normal reaction to this would be, like, who wouldn't, given that Justice Breyer's questions tend to go on a bit. But, as Litman and Feldman both note,  Breyer spoke relatively little in the telephonic arguments.) It looked like this:

Screenshot 2020-05-20 11.44.10

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Screenshot 2020-05-20 11.52.40

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Screenshot 2020-05-20 11.52.40

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There's much more in the piece and much of interest in Professor Litman's data. 

May 20, 2020 in Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, May 8, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 8, 2020

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

US Supreme Court Opinions and News

  • This week, the Supreme Court resumed oral argument but, for the first time, it heard argument via telephone and allowed the public real-time access. Some of the many reports include those from The Washington Post, NPR, NBC News, and The Associated Press.  Find the first telephonic oral argument here in U.S. Patent and Trademark Office v. Booking.com B.V.   Because argument was held via telephone, Justice Ginsberg, who was hospitalized this week, was able to participate in oral argument on Wednesday from her hospital bed.  See reports from CNN, BBC, and USA Today.
  • The Supreme Court overturned the fraud convictions of the public officials in New Jersey’s "Bridgegate" scandal. The Court confirmed that the public officials did in fact realign toll lanes in New Jersey to cause traffic problems to “punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.” However, because the officials did not obtain money or property, the Court unanimously held that these actions were not criminal under federal law. See the opinion and reports from CNN, Politico, and The Atlantic

  • The Court dismissed a Second Amendment challenge to a New York City gun ordinance. Instead of ruling on the merits, the Court determined that the challenge was moot because New York has repealed the ordinance. See reports from The Wall Street Journal, The Associated Press, Reuters, and The New York Times.  

  • The Court ruled that insurances companies are entitled to collect under the Affordable Care Act. The Court held that the government was obligated to honor the promise to protect insurance companies against the risks they took in participating in the exchanges established by Act.  See the opinion and reports in The New York Times, The Washington Times, The Associated Press, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Tenth Circuit upheld the federal bump-stock ban against a challenge arguing that the executive branch had no authority to issue the ban. The court rejected this argument, accepting instead the ATF determination “that semiautomatic rifles equipped with bump stocks are ‘machineguns.’” The court found the statutory definition of “machinegun” to be ambiguous and the ATF’s interpretation to be reasonable, thus upholding the ban. See the opinion and reports from The Associate Press and Bloomberg Law

  • The Seventh Circuit sided with Chicago in a sanctuary city fight, holding that the Justice Department cannot withhold federal grants from cities that extend protections to undocumented immigrants. The ruling recognizes that “states do not forfeit all autonomy over their own police power merely by accepting federal grants” and that “the attorney general’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch.” See the opinion and reports from The Chicago Tribune and Reuters.

  • The Tenth Circuit upheld the lower court and struck Kansas’s voter ID law, finding its proof of citizenship requirement to be unconstitutional. Kansas argued that the law was necessary to protect against voter fraud. The court however noted the significant burden on the over 31,000 voters who had their registration applications cancelled or suspended and found that interests of the state do “not justify the burden imposed on the right to vote.” This decision binds not only Kansas but all states within the jurisdiction of the Tenth circuit, including Oklahoma, New Mexico, Colorado, Wyoming, and Utah. See opinion and reports from The New York Times,  The Courthouse News Service, and an ACLU press-release.

  • In Wisconsin, four strip clubs suing for relief related to the COVID-19 shut down have won preliminary injunction in a First Amendment case. The strip clubs claimed discrimination in violation of the First Amendment after their applications for emergency federal loans were denied due to the sexual nature of the businesses. The injunction preserves the clubs’ eligibility for small business loans. The ruling concluded that the plaintiffs would likely succeed in demonstrating that their businesses are not prurient and that the regulation violates the First Amendment. See opinion and a report in The Milwaukee Journal Sentinel.

May 8, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 5, 2020

Footnoted Citations - Ramos v. Louisiana

Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana,[1] which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style[2] that are always smoldering on #appellatetwitter.

Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.”[3] Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.[4]

Garner co-authored Making Your Case: The Art of Persuading Judges,[5] with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations.[6] Of course, Garner argued for the use of footnoted citations;[7] Justice Scalia, “disapprove[d] this novel suggestion.”[8] So let’s review some of the pros and cons of both and then you decide which you favor.

But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority.[9] The latter is important because it helps the reader evaluate the relative value of one authority as compared to another.[10] We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted?[11] So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.

Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority.[12] Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.”[13] This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.

Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation.[14] So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S.  209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.

The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.”[15] Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.

Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc.,[16] with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.

 

[1] No. 18-5924, slip op. (U.S., April 20, 2020).

[2] Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.

[3] Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418

[4] https://twitter.com/BryanAGarner/status/1253005857035608064.

[5] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

[6] Id. at 132-35.

[7] Id. at 132-33.

[8] Id. at 133.

[9] Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).

[10] See id. at 881.

[11] Id.

[12] Scalia & Garner, supra note 5, at 132.

[13] 431 U.S. 209 (1977).

[14] Scalia & Garner, supra note 5, at  134.

[15] Id.

[16] No. 18-1233, slip op. (U.S., April 23, 2020).

May 5, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Friday, April 24, 2020

Appellate Advocacy Blog Weekly Roundup Friday, April 24, 2020

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

US Supreme Court Opinions and News

The Supreme Court issued (from home) a number of opinions this week, including:

  • Barton v. Barr: The Court affirmed the lower court’s decision holding that a US permanent resident of over 30 years was ineligible to have his deportation cancelled. The case concerned the interpretation of an immigration law that allows immigrants who were deemed “deportable” based on the commission of certain crimes to petition to have their deportation cancelled. The decision interpreted a statutory provision known as the “stop-time” provision, which requires that an immigrant can only be eligible for deportation cancellation if the immigrant has been a continuous resident for at least seven years without committing a serious crime (the crime that renders an immigrant “deportable” can apparently have been committed at any time). The issue came down to whether the “serious crime” in the stop-time provision has to be one of the “certain crimes” that renders an immigrant “deportable.”  The Court affirmed the lower court’s interpretation of the statute and ruled that the crime did not need to be one of the crimes that is listed as a deportable crime. See reports at The Jurist and Bloomberg Law.
  • County of Maui v. Hawaii Wildlife Fund: The Supreme Court broadly interpreted the “functionally equivalent” test in the Clean Water Act. The law requires a permit for a direct discharge of pollutants into federally regulated rivers and oceans or its functional equivalent. The issue was whether Maui County violated the Act by injecting wastewater underground without a permit. The Court concluded that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters” and retuned the case to the circuit court.  See reports at The Hill, The Jurist, USA Today, The Associated Press, and The National Law Review.

  • Ramos v. Louisiana: This decision affirms that non-unanimous jury verdicts for serious crimes is unconstitutional and that the requirement applies to states cases as well as federal, which overturns precedent from the 1970s. The decision affects only two states: Louisiana, where the case originated and whose recent law barring non-unanimous jury decisions only applies to verdicts from after 2018, and Oregon, the only state that still allows non-unanimous verdicts. The decision recognized that allowing convictions with non-unanimous juries was rooted in racism, noting that Louisiana had adopted the rule as a way to maintain the “supremacy of the white race” and that the Oregon law could be traced to efforts to dilute “the influence of racial, ethnic, and religious minorities” on juries. Many see this 6-3 decision (and its concurrences and dissents) on what may seem to be a straightforward issue as illuminating on the issue of the role of precedent in future cases. See some of the many reports at The Los Angeles Times, The Wall Street Journal, The Associated Press, Reuters, and the New York Times from Adam Liptak and Linda Greenhouse.
  • Ramos is also noteworthy (especially for legal writers) as being possibly the first Supreme Court decision to have footnoted all citations (there have been dissents that have previously footnoted citations). See Twitter discussion on both sides of that debate here and here.

Other opinions issued this week can be found here: Thryv, Inc. v. Click-To-Call Technologies, LP; Atlantic Richfield Co. v. Christian; and Romag Fasteners, Inc. v. Fossil, Inc.

Federal Appellate Court Opinions and News

  • The Sixth Circuit ruled that “the Constitution provides a fundamental right to a basic minimum education,” which it defined as an education that “plausibly provides access to literacy.” This decision allows students in Detroit’s public schools to go forward with their claims that they have been denied access to literacy. Though the Supreme Court has discussed this issue, it has never decided it. See opinion and reports at The ABA Journal, The Detroit Free Press, and The National Review,  and see a 2018 New Yorker article on the issue.

  • In Tennessee, a US District Court has blocked the state’s order prohibiting procedural abortions during COVID-19.  The opinion recognizes that “[d]elaying a woman's access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether.”  See report in The Tennessean, The Associate Press, and CNN.  But in Arkansas and Texas this week, state bans have been upheld or reinstated. In Arkansas, the Eight Circuit dissolved a judge’s restraining order that had allowed surgical abortions to continue after the AR department of health told clinics to stop performing procedures unless needed to protect the life or health of the mother.  See opinion and reports at The Associate Press, The Jurist, and Law360. And, in Texas, the Fifth Circuit has reinstated most of Texas’s abortion ban, ruling that medication abortions (those induced with pills) may also be restricted, but only as applied to those who would reach Texas’s 22-week gestational limit for a legal abortion while the ban was in place. This ruling comes less than a week after it had allowed them to continue.  See opinion and reports from Fort Worth Star-Telegram, Reuters, The Hill, and Bloomberg.

  • In the face of a Second Amendment challenge, the Fifth Circuit confirmed the validity of a statute that prohibits the possession of a firearm by a person who is subject to a restarting order due to a conviction for domestic violence.  See opinion.

Appellate Practice Tips

A recent Texas Appellate Law Podcast this week covered tips for using an iPad as appellate lawyer with guest Jeff Richardson, whose blog is iPhone J.D. Thanks, Jeff for the email!

April 24, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, April 22, 2020

Phantom Precedents in Ramos v. Louisiana

If stare decisis really is for suckers, the Supreme Court’s decision in Ramos v. Louisiana[1] was an unremarkable end to the anachronistic Apodaca v. Oregon[2] decision permitting states to convict criminal defendants without unanimous jury verdicts. But for those that have argued for a strong stare decisis tradition and defended the doctrine’s importance, the Ramos opinion’s sustained discussion of when to overrule a precedent is a fascinating read.

First, Ramos reiterated that a relatively weak tradition of stare decisis is in vogue on the Supreme Court. In a process that culminated in 2018’s Janus v. AFSCME opinion,[3] the Court has recently moved towards a version of stare decisis that focuses on the poor quality of a precedent’s reasoning, even permitting the Justices to overrule on that basis alone. In contrast, a strong stare decisis tradition sets “poor reasoning” as a condition precedent to stare decisis analysis, not a ground for reversal; such reversals occur only if there is a special justification, such as unworkability, strong reliance interests, new legal developments, or vastly changed facts. Writing for the Court, Justice Gorsuch quoted the weak version of stare decisis in Franchise Tax Board of California v. Hyatt—which in turn relied upon the formulation in Janus—to emphasize that the quality of a decision’s reasoning is the primary consideration within stare decisis analysis.[4] His argument against Apodaca then focused on its “gravely mistaken” reasoning, which made it an outlier in the Court’s Sixth Amendment and incorporation jurisprudence and engendered the reliance of only two states.[5] In addition to the three Justices that joined Gorsuch’s opinion in full, two concurring Justices, Cavanaugh and Thomas, would likewise make the quality of a precedent’s reasoning the primary consideration, if not the singular consideration, in the stare decisis tradition.[6] And even the three-Justice dissent made its argument in defense of Apodaca on the weak stare decisis tradition’s terms. The dissent—an unexpected alignment of Justices Alito, Roberts, and Kagan—argued that Apodaca was not nearly as poorly reasoned as the majority would have it, but was silent on whether such poor reasoning should be a reason to overrule.[7] The dissent’s silence on that point was even more thunderous given Kagan’s prior insistence that “it is not enough [to overrule because] five Justices believe a precedent wrong.”[8]

Second, Ramos introduced a new facet to the stare decisis debate. Can some precedents be so fractured and incomprehensible as to be no precedent at all, becoming a “phantom precedent?”[9] Three Justices that joined the primary opinion in full argued that Apodaca was just such a jurisprudential apparition. For that trio, Apodaca failed to supply a “governing precedent” because its controlling opinion came from a single Justice, Powell, supporting a theory of “dual-track” Sixth Amendment incorporation that a majority of the Apodaca Court itself rejected.[10] And while Sotomayor wrote separately without adopting that portion of the primary opinion, her own view was remarkably similar. She claimed Apodaca was a “universe of one” that was so “irreconcilable with . . . two strands of constitutional precedent” that its precedential value was minimal, if not evanescent.[11]  

Those opinions offered little insight into how to identify the phantom precedents within the many fractured opinions the Court issues each term. Perhaps Apodaca was uniquely unable to generate precedential value; without any guiding principles to identify why that decision was a phantom, it is hard to tell. Perhaps the view that Apodaca is a phantom precedent merely expresses discomfort with the rule in Marks v. United States that the Court’s holding in a fractured opinion is “that position taken by those Members who concurred in the judgments on the narrowest grounds.”[12] Powell’s Apodaca opinion seems to fit that bill, but perhaps the Ramos Court marks the start of a new method to measure the holding of fractured opinions. Or perhaps Ramos intimates the Supreme Court’s desire to allow some of its opinions to have little or no precedential effect, much like the now commonplace unpublished decisions that I have discussed elsewhere on this blog.

Ramos is a complex decision with many layers to unpack beyond the few I’ve mentioned here. But its take on stare decisis is utterly fascinating. In future years, it may mark an important turning point for a doctrine whose death has been reported with great exaggeration.

 

[1] 590 U.S. ___ (2020).

[2] 406 U.S. 404 (1972).

[3] 585 U.S. __ (2018).

[4] Ramos, 590 U.S. ___ (2020) (slip op., at 20).

[5] Id. (slip op., at 20-22).

[6] Id. (slip op., at 7-8, 10-11) (Kavanaugh, J., concurring) (suggesting that the first factor in stare decisis analysis is whether the precedent is “grievously wrong,” which Apodaca was); Id. (slip op., at 2-3) (Thomas, J., concurring) (claiming that “demonstrably erroneous” decisions must be overturned irrespective of any practical stare decisis considerations).

[7] Id. (slip op., at 13-15) (Alito, J., dissenting).

[8] Knick v. Township of Scott, 588 U.S. __ (2019) (slip op., at 16) (Kagan, J., dissenting) (citing Kimble v. Marvel Entertainment, LLC, 576 U.S. __ (2015) (slip. op., at 8)).

[9] Ramos, 590 U.S. ___ (2020) (slip op., at 7) (Alito, J., dissenting).

[10] Id. (slip op., at 16).

[11] Id. (slip op., at 2) (Sotomayor, J., concurring).

[12] 430 U.S. 188, 193 (1977).

April 22, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, April 20, 2020

Historic Arguments During Historic Times

I’m a Houstonian, so today’s below zero oil prices , a first from reports I’ve seen, have been top of mind as I work from my dining room table during the COVID-19 pandemic. That entire last sentence makes my head spin. Buyers paying sellers not to deliver oil. It’s historic. Just four months ago we were looking at the start of a new decade, full of hope. Now, even as I look out my window at the blooming flowers and see all the signs of spring (or early summer here in Houston), I wonder will my family be okay? My students, friends, and colleagues? My city? Our country? How much will institutions have to change? What will the world look like when it’s over?

As much as I love studying history, living through it is painful. Some of the historic events we are seeing, COVID-19 death rates topping the cause of death, record unemployment, speak of incredible individual suffering. Other historic changes are being forced upon institutions slow to change.

Over my last several posts, I’ve followed the Supreme Court’s postponement of Oral Arguments, then the holding pattern that arguments this month and next were in. Finally, on April 13, 2020 the Court issued a release stating that 13 cases would be heard by telephone. Here is an excellent discussion of the Court’s pivot.

As we saw in last week’s post by Texas Supreme Court Justice Eva Guzman, other appellate courts have moved oral arguments online with success. Interestingly, the Supreme Court has decided to do its arguments telephonically, despite the video conferencing technology that is readily available and being used in other courts around the country. As Amy Howe points out “They may have decided to go with remote arguments by teleconference in the short term, despite the potential effect on the dynamics of the arguments, because they would rather live with the longer-term implications – live audio versus live video – of that choice.” I’m interested to see how well the justices avoid talking over each other and what impact the format has on the advocates. As we’ve all probably seen in our own Zoom meetings, people talk on top of each other over video conference, too, so video conferencing may not solve much on that account.

On the whole, the Court’s shift to having some form of remote oral argument is a big one. It was likely a difficult decision, but it was a necessary one. In a time of great uncertainty, knowing that our highest court is operational and willing to decide the complex and important cases that come before can give some reassurance. It’s a signal that even though it isn’t business as usual, business is getting done.

April 20, 2020 in Appellate Advocacy, Appellate Court Reform, Federal Appeals Courts, United States Supreme Court, Web/Tech | Permalink | Comments (1)

Friday, April 10, 2020

Appellate Advocacy Blog Weekly Roundup Friday, April 10, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court blocked an extended deadline for absentee voting in the Wisconsin primary this week. In the wake of COVID-19 shutdowns across the country, Governor Tony Evers had  attempted to stop in-person voting. The District Court overturned the ban but allowed absentee ballots mailed and postmarked after election day, April 7, to be counted if received by April 13. The Supreme Court overturned the District Court’s deadline extension, saying that “[e]xtending the date by which ballots may be cast by voters . . . for an additional six days after the scheduled election day fundamentally alters the nature of the election.” See the opinion and reports in The New York Times and NBC News.
  • The Supreme Court will not hear a challenge to the DC Metro policy that bans religious ads. The Archdiocese of Washington argued that the Washington Transit Authority policy violates the First Amendment.  See reports from USA Today, The Washington Times, CNN, and The Hill.
  • The Supreme Court has cancelled April oral arguments due to COVID-19. A News Release stated that the Court will “consider rescheduling some cases from the March and April sessions before the end of the Term, if circumstances permit.”  See comment from The Washington Post, The Hill, CNN, and Reuters.    

Federal Appellate Court Opinions and News

  • The Fifth Circuit has allowed Texas to enforce its abortion ban during the COVID-19 pandemic. The court overturned a Texas district court, which had blocked the ban because it prevented a “Texas women from exercising what the Supreme Court has declared is [a] fundamental constitutional right to terminate a pregnancy before a fetus is viable.” See the decision and reports from The Hill, Reuters, and The Associated Press
  • The D.C. Circuit has overturned the lower court’s block of four death penalty sentences, allowing the Justice Department’s plan to resume executions of federal death row inmates after a 16-year hiatus. The Federal Court had stayed the executions and had issued a preliminary injunction based on concerns about the government’s lethal injection method. See decision and reports from Courthouse News, The Associated Press, and The Wall Street Journal.
  • The First Circuit rules that “so help me god” in the naturalization oath for U.S. citizenship is constitutional. The ruling rejected an atheist claim that it violated her First Amendment rights. See report from Bloomberg Law (subscription required).

Covid-19 and the Courts

The Judicial Conference has temporarily approved the use of video and teleconferencing for some criminal proceedings in light of the COVID-19 pandemic.  See the News Release.

April 10, 2020 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, March 30, 2020

Clear is Kind When It Comes to Scheduling During a Pandemic

Tomorrow is the last day of March, and if internet memes are to be believed, this month has felt a lot longer than its 31 days. It certainly has for me. At the beginning of March, I was still teaching classes in-person, still eating out, still thinking we would be finishing our semester in-person. Some Supreme Court advocates thought they would argue before the Court; litigants thought their cases would be heard. COVID-19 appeared only a distant threat.

As Spring Break at my University stretched on, we were on a rollercoaster (as many of you were, too), not knowing if we were coming back after Spring Break, then an extension on Spring Break, then online teaching until April 3rd, and then finally we received word that we would be teaching online for the rest of the semester. While it has all been challenging, I have felt my anxieties lessen as I have more of a concrete sense of what work will look like, even as COVID-19 has become a growing, terrible reality. Knowing that we will be staying home and working remotely for an extended period of time has given me an ability to focus, which was elusive in the middle of the month when everything was up in the air.

Seeing this headline today on CNN, “Spring cases in limbo without Supreme Court guidance on arguments during pandemic” gave me real empathy for the litigants and attorneys whose cases are in limbo. While the Supreme Court issued another order on March 19, 2020, lengthening deadlines for filing petitions and stating that motions for extensions would be granted as a matter of course, these “modifications to the Court’s Rules and practices do not apply to cases in which certiorari has been granted or a direct appeal or original action has been set for argument.” Some cases are still scheduled for arguments in late April, despite President Trump’s extension of the social distancing orders though the end of April. Additionally, there have been no announced plans for when the already-cancelled oral arguments from March will be held. Some are criticizing the Court’s unwillingness to adopt new technology, as many other courts are doing, in order to hear some of the important cases scheduled. Perhaps this pandemic will be what shifts some of the Court’s traditions, but there has been no indication of that so far.

I’m a fan of the Brené Brown idea that “clear is kind, unclear is unkind,” and in times of uncertainty it is especially true. We know leaders do not have all the answers, but our institutions, including the Supreme Court, need to make and publish clear guidance on how that institution will function. Over-communicate in a time of crisis. More guidance and clarity from the Court will allow litigants, attorneys, and the entire country to adjust as quickly as possible, just as we are all adjusting to staying at home.


March 30, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Friday, March 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 27, 2020

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

US Supreme Court Opinions and News:

  • The Supreme Court ruled that states can eliminate the insanity defense for accused criminals who suffer from mental illness. The ruling upholds a Kansas law that prevents defendants from arguing that diminished mental capacity impaired their ability to understand right from wrong. The court rejected the claim that the law was unconstitutional.  See the opinion and report from the Wall Street Journal, Reuters, Hill, NPR, and APNews.

  • The Supreme Court ruled that states may not be sued for copyright infringement. Specifically, the Court held that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereign immunity. The ruling prohibited an underwater videographer’s suing North Carolina for using his copyrighted videos of a submerged ship used by Blackbeard. See the opinion and reports from NPR, Reuters, Bloomberg, ArsTechnica, and National Law Review.

  • The Supreme Court unanimously ruled that a lower court used the wrong legal standard in a racial discrimination lawsuit. The Court ruled that, for his discrimination case to survive, media mogul Byron Allen must show that race was the determining reason that Comcast refused to carry his channels and sent the case back to the Ninth Circuit for reconsideration. Legal experts and civil rights groups warned that the Comcast victory could make it more difficult to bring racial discrimination cases by setting a high bar. See the opinion and reports from Reuters, Bloomberg, CNBC, and The Hill.    

    The three decisions were issued remotely this week. See reports on the three decisions from The New York Times, the Washington Post, and the Wall Street Journal.

Federal Appellate Court Opinions and News:

  • The Second Circuit affirmed the ruling that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The court will not rehear the case despite a request from the Justice Department. See the ruling and reports from The Washington Post, Politico, The Washington Times, The Associate Press, and CNN.

  • The First Circuit upheld a ruling that the Justice Department cannot compel cities to comply with federal immigration authorities as a condition of receiving federal grants. The cities of Providence and Central Falls had sued the Department of Justice for requiring that recipients of a federal criminal-justice grant cooperate with authorities in the enforcement of federal immigration law. The ruling states that the statutory formula outlining how the grant can be allocated “simply does not allow the DOJ to impose by brute force conditions on [such] grants to further its own unrelated law enforcement priorities.“ See the ruling and reports from Bloomberg and Providence Journal.

COVID-19 and the Courts

  • More courts are holding virtual oral arguments and some are making those arguments available online.  For example, see the Eleventh Circuit’s announcement, the Ninth Circuit’s announcement, the DC Circuit’s announcement, and the Second Circuit’s announcement.
  • New York has issued a wide-ranging order suspending statutes of limitation.  The  executive order temporarily suspended statutes of limitations, service, and other legal time periods through April 19, 2020.

  • Montana Supreme Court Chief Justice has asked state judges to release nonviolent inmates to protect against the spread of Covid-19. See report.

Advocacy tips

Tips from practitioners on telephonic oral argument:

March 27, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 17, 2020

Supreme Court Argument Postponement amid Pandemic


Yesterday, the Supreme Court postponed two weeks of Oral Arguments, releasing this statement:

In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.

The Court will hold its regularly scheduled Conference on Friday, March 20. Some Justices may participate remotely by telephone. The Court will issue its regularly scheduled Order List on Monday, March 23 at 9:30 a.m. The list will be posted on the Court’s Website at that time: https://www.supremecourt.gov/orders/ordersofthecourt/19.

The Building will continue to be open for official business, and filing deadlines are not extended under Rule 30.1. The Court is expanding remote working capabilities to reduce the number of employees in the Building, consistent with public health guidance. The Building will remain closed to the public until further notice.

The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.

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As has been well-documented, those older than 60 are at greater risk of serious complications and death from COVID-19. Currently, 7 of 9 justices are over 60. Two justices, Ruth Bader Ginsberg and Stephen Breyer, are over 80. Some are already calling for an increase in technological solutions, rather than just postponing to later live hearings.

There are significant numbers of other court closures and scheduling changes happening around the country. As every day brings new announcements, it’s a rapidly changing situation.

March 17, 2020 in Appellate Advocacy, Appellate Justice, United States Supreme Court | Permalink | Comments (0)

Monday, March 16, 2020

Quarantine, Coronavirus, and the Constitution

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Eugene Volokh over at the Volokh Conspiracy recently posted a blog sharing the expertise of law professor and M.P.H. Ed Richards on the issue of the constitution and coronavirus quarantine measures. Professor Richards notes that drastic public health measures were the rule of the day during our republic's early years, and that there is a strong originalist argument in favor of public health concerns trumping certain individual constitutional concerns.

As Richards noted:

Colonial boards of health may have been the first administrative agencies in the US. They exercised Draconian powers that were rooted in English law. The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments, including death. The argument of counsel in Smith v. Turner, 48 U.S. 283, 340-41 (1849) described measures to control a yellow fever outbreak in Philadelphia:

 

For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia.

 

These powers are classic police powers, exercised by the states. While they were not at direct issue in Smith, the power to quarantine ships was upheld against commerce clause and foreign affairs challenges in Morgan's Steamship Co. v. Louisiana Board of Health (1886). The power to establish cordons sanitaire was upheld in Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana (1902). The right of the state to require vaccination was upheld in Jacobson v. Massachusetts (1905).

As Richards goes on to comment, while the breadth of power the government can exercise is broad, it must be exercised with wisdom. The yellow-fever quarantine, for instance, we now know to be counterproductive: the disease is spread by mosquitoes, and quarantine only kept people in harm's way.

Most governmental limitations on gatherings and the imposition of involuntary quarantine have been, and likely will continue to be, local. The federal government's power to quarantine comes primarily from the Commerce Clause, as well as a statute passed pursuant to the power granted by that clause, 42 U.S.C. § 264. This statute is restricted to the quarantine of people at a certain stage of infection who either cross state lines, or are likely to come into contact with those who will cross state lines.

Local and state governments, however, have no such restrictions on their police power over local conditions regarding health and safety. For a listing of each state's statutory power to quarantine, see this website. As you can see, each state takes a different approach and violations carry different penalties, all of which may be tested under both state and federal constitutional challenges.

Due process challenges may be raised, as they have in the past, in response to the deprivation of liberty interests. Exactly what standard would be applied to these challenges is an interesting question. In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court dealt with an analogous issue - the involuntary confinement of persons with mental illness to state asylums. Noting that "[t]his Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," the court went on to discuss what standard was necessary in such cases. Id. at 425.

In order to protect competing interests of the State and its wards, the Supreme Court concluded that something more than "preponderance of the evidence" was necessary, but that the "reasonable doubt" standard used in criminal cases was too high. The Court thus held that a "clear and convincing standard" was the constitutional floor for commitment cases. See Id. at 430-33.

It is not entirely clear that the Addington standard would apply to infectious disease quarantine. There would be an argument for a lower standard, given the urgent and emergent nature of the current situation as compared to the usually measured and individual determination of mental illness. But Addington does give those who are curious some reading into the balancing interests at issue in crafting that standard.

Under Addington and other authorities, what must be proven by this "clear and convincing evidence" is not just that the person to be confined was mentally ill, but also that they presented a threat to themselves and others. It is likely that similar proof would be required for quarantine - that the person has been exposed to the virus, and that they present a risk to themselves or others if not confined. See Michael R. Ulrich, et al., Quarantine and the Federal Role in Epidemics, 71 SMU L. Rev. 391 (2018).

This analysis not purely academic. Some of those under voluntary quarantine have already broken their confinement and been placed into involuntary quarantine. More will likely have to be place there. And if conditions continue to deteriorate, the full extent of the federal governments power under 42 U.S.C. § 264 may be tested.

Hopefully, the "curve will flatten" soon thanks to voluntary compliance. If not, local and federal governments have powerful tools available to intercede, limited only by constitutional principles with application that is currently ill-defined.

(image attribution: Attack on the Quarantine establishment [Staten Island, N.Y.] on September 1, 1858, appearing in Harper's Weekly, Sept. 11, 1858).

March 16, 2020 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, March 13, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 2020

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

US Supreme Court Opinions and News:

  • The Supreme Court will hear a case from Mississippi that looks at the constitutional limits of sentencing juvenile offenders to life in prison without parole, specifically whether it is a constitutional violation to impose the sentence absent a finding that the defendant is incapable of rehabilitation. See report from the Hill and the NY Times.

  • This week, the Supreme Court granted an emergency request to lift a Ninth Circuit block on an administration immigration policy. The ruling leaves in place the policy that requires thousands of people seeking asylum to wait in Mexico while their claims are adjudicated. See Reuters report.

  • A recent study from Yale looks at the practice of the Supreme Court that gives the solicitor general oral argument time as a “friend of the court.”  The study looks at the history of the practice and its effect on the adversarial process.  See the study and a report in the NY Times.

Federal Appellate Court Opinions and News:

  • The US District Court for the District of Columbia upheld the lower court and held that the Justice Department must release the secret grand jury evidence lawmakers are seeking in the ongoing investigations into the president. See the opinion and a sampling of the reports from the Washington Post, the NY Times, Bloomberg, the Hill.

  • The Ninth Circuit ruled in favor of Led Zepplin in the appeal of a copyright suit claiming the ever-popular “Stairway to Heaven” copied a song by the band Spirit. The en banc opinion of the 11-judge panel affirmed the jury decision that the songs were not substantially similar. The court also took “the opportunity to reject the inverse ratio rule, under which [the Court has] permitted a lower standard of proof of substantial similarity where there is a high degree of access.” The Court ruled that this “formulation is at odds with the copyright statute and we overrule our cases to the contrary.” Some claim that this may be a “precedent-setting win for musical acts accused of plagiarism.” AP News. See a sampling of the many reports here: Rolling Stone, the LA Times, the NY Times, Reuters, Bloomberg, Law.com’s site “The Recorder” (subscription), the Wall Street Journal (subscription).

  • The US District Court for the District of Columbia determined that it lacked the expertise to evaluate a Guantánamo Bay prisoner to determine whether he qualifies for medical repatriation in consideration of his writ for habeas corpus. Instead, in a first for federal courts, the Court ordered a mixed medical panel of American and foreign physicians to evaluate the mental health of the prisoner, Mohammed al-Qahtani, a Saudi Arabian man held at Guantánamo for more than 18 years. See the ruling and reports from the NY Times, the Washington Post (subscription), and the ABA Journal.

COVID-19 and the Courts

COVID-19 is, of course, affecting court operations. Many courts are closing or restricting public access. The Supreme Court has closed its doors to the public as of March 12; the closure will not extend case filing deadlines under Supreme Court Rule 30.1.  For general information about other court closures and restriction, Law360 has an updating list of closures and restricts here. For specific courts, see individual court websites, many of which include statements specific to COVID-19 procedures.

March 13, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, March 8, 2020

Oral Argument Recap: June Medical Services, LLC v. Russo

On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.

By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion.[1] In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.

The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas.[2] In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.

At oral argument, the justices appeared divided.[3]

Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.

Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.

Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.

Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.

Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”

And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.

Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.

I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.[4]

Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.

Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.

[1] 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).

[2] 579 U.S.             ; 136 S. Ct. 2292 (2016).

[3] See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.

[4] Id. at 61:24 to 62:9.

March 8, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)