Sunday, November 17, 2019
It is no secret that, over the past thirty years, the nomination of judges to the federal courts, particularly to the United States Supreme Court, has become increasingly contentious and partisan. The nominations of Clarence Thomas and Brett Kavanaugh underscored how divisive and polarizing this process has become, with confirmation decisions often split along party lines. The likely reason is that members of the United States Senate form opinions regarding how a potential justice is likely to interpret the Constitution and rule in critical cases, such as those involving abortion, executive power, immigration, and the death penalty. These opinions arguably reflect beliefs regarding a nominee’s ideology, and how that ideology will influence a justice’s decisions in specific cases.
But does ideology really motivate judicial decision-making, such that judges make decisions based primarily on their policy predilections?
Based on numerous studies and a large volume of data, the answer depends on: (1) the judge’s placed in the judiciary hierarchy (e.g., federal district court versus the United States Supreme Court; (2) the specific legal issue under consideration; (3) institutional considerations, including a desire to maintain a court’s institutional legitimacy; (4) a judge’s approach to constitutional interpretation and beliefs concerning the value of precedent; and (5) the composition of a court. In short, ideology does not play nearly as significant a role as many politicians believe because judges decide cases under internal and external constraints that render ideology-based decision-making infeasible. Put simply, courts are not as political as many believe.
First, empirical evidence reveals that a judge’s place in the judiciary hierarchy directly correlates with the likelihood that ideology will motivate decision-making. For example, studies have shown that federal district court judges do not decide cases on the basis of ideology. However, in the appellate courts, including the United States Supreme Court, some evidence exists that ideological considerations are relevant, although not dispositive, considerations. This is not surprising. After all, district court judges would be ill-advised to made decisions based on ideology because the likelihood of reversal by a circuit court of appeal would be high. At the appellate level, though, judges are less constrained because the Supreme Court only grants certiorari in a small number of cases. Thus, because appellate courts are, as a practical matter, often the courts of last resort, and because their decisions typically involve important policy matters, ideology is more influential, although certainly not the sole motivation underlying case outcomes.
Second, the extent to which ideology matters depends on the legal issue before the courts. Some issues, such as those involving patent law, admiralty law, and the bankruptcy code, do not implicate ideological considerations and thus render ideology irrelevant. In addition, in many cases, it is difficult to ascertain precisely how a specific legal issue or outcome fits neatly into a particular ideology. For example, cases involving the Commerce Clause or the level of deference that should be afforded to administrative agencies do not depend or even involve ideological considerations. Furthermore, it is challenging to operationalize and accurately characterize a particular judge’s ideology; thus, attempting to label judges as liberal or conservative fails to account for the nuances in that judge’s ideology and judicial philosophy. And in many instances, judges’ decisions are inconsistent with their perceived ideology. Indeed, in Texas v. Johnson, Justice Antonin Scalia wrote for the majority and held that prohibitions on desecrating the American flag violated the First Amendment, even though Scalia openly admitted that he despised such acts. Moreover, the fact that many cases are decided by votes of 9-0, 8-1, or 7-2 suggests that ideology alone is not the driving force underlying most decisions at the Supreme Court.
Third, institutional considerations, particularly at the Supreme Court, influence the justices’ decision-making process. When making decisions, the Court must consider the effect of a particular ruling on its institutional legitimacy and on principles of federalism, separation of powers, and the degree of deference afforded to the coordinate branches. As such, in many cases, ideology cannot – and is not – the sole or even primary factor underlying the Court’s decisions.
Fourth, many decisions, including those that involve divisive social issues, result from differences among judges regarding interpretive philosophies and the value they place on precedent. On the Supreme Court, for example, some justices embrace originalism, which broadly speaking (and without going into depth about originalism’s variations) means that the Constitution’s words should be interpreted based on the Founders’ understanding of those words when the Constitution was ratified. Other justices embrace an approach known as living constitutionalism, which generally states that the meaning given to the Constitution’s provisions may change based on contemporary norms, circumstances, or problems that did not exist when the Constitution was ratified. Likewise, judges assign different values to precedent based in part on the recency of a particular precedent, the degree to which they adhere to stare decisis, and their view of whether a prior case was rightly decided.
Fifth, the composition of a court is likely to have a substantial impact on the outcomes judges reach. Not surprisingly, a court composed of mostly liberal judges is likely to issue more progressive decisions, while a mostly conservative court is likely to issue more conservative decisions. Often, however, the dynamics are more complicated. Judges may, for example, issue narrow decisions in particular cases to ensure a majority or to placate judges who might otherwise issue highly critical dissenting opinions. The point is that judicial decision-making results not from strictly legal considerations, but from the political dynamics among a court’s members.
Ultimately, therefore, the claim that judges base decisions on ideological considerations is overly simplistic and largely inaccurate. The truth is that judges make decisions based on many factors and, in the vast majority of cases, particular outcomes cannot be attributed solely or even significantly to ideology. Simply put, courts are not as political as some might believe.
Tuesday, November 5, 2019
The last few years I have been unable to attend one of our state-wide appellate conferences because I have been working on appeals. It is a nice problem to have, but it means I am often a little late to the trough of knowledge and have to catch up with my peers through online resources.
One of the presentations I recently watched was by two Supreme Court practitioners on "The Art and Science of Seeking Certiorari." In that presentation, Daniel Geyser and Carl Cecere discuss what the high court is looking for when it reviews petitions.
We all know that one of the best indicators of a successful petition for writ of certiorari is the presence of a split in the circuits. Geyser and Cecere help by pointing out that not all conflicts are created equal, and that some characteristics are more important to the Court than others.
Specifically, they argue that the best conflicts are:
- Fresh and timely, not stale;
- Deep in nature, not shallow;
- Squarely in conflict, not attenuated;
- Balanced in the courts involved on each side of the split, not lopsided;
- Real in the conflict, and not illusory; and,
- Expressly in conflict, and not just implied.
This does not mean that your conflict will not catch the Court's eye if it does not meet all of these characteristics. But it does mean that when you present a conflict, you should address the issues above when they are present so you can more clearly define the importance of the conflict for your court of discretionary review.
Geyser and Cecere give several examples of how advocates make the strength of their conflicts apparent. Some put this information in the issue presented, some in their headers so that the table of contents "speaks" to the issue, and some in their summary of the argument.
The main lesson learned is that you should highlight the importance of your conflict early and often, and not just drop a footnote to a string of cases that disagree with each other. Wake up the Court with the importance of your conflict early on, and they are more likely to pay attention to the substance of your argument later.
(Image credit: A lithograph from Honore Daumier, Les Gens de Justice, 1845.)
Saturday, November 2, 2019
On October 7, 2019, the Supreme Court heard oral arguments in Kahler v. Kansas, where the Court will consider whether the Eighth and Fourteenth Amendments permit states to abolish the insanity defense. Currently, Kansas does not allow defendants to plead insanity; instead, a defendant may argue that a mental illness negated the mens rea element of a crime.
By way of background, forty-six states permit defendants to plead insanity as a defense. Only four states – Kansas, Montana, Idaho, and Utah – have abolished the defense. The legal standard for proving insanity, however, varies depending on the state within which the crime was committed. Some states apply the M’Naghten rule, which requires a defendant to demonstrate that, due to mental illness or defect, the defendant did not appreciate the wrongfulness of the conduct at issue or understand that the conduct constituted a crime. Other states have adopted the Model Penal Code’s standard, which states that a defendant with a diagnosed mental illness is absolved of criminal responsibility if the defendant either failed to understand the criminality of his or her actions or, due to such illness, was unable to act within the confines of the law. A few states have adopted the irresistible impulse test, which states that a defendant is absolved of criminal responsibility if the defendant was unable to control his or her actions, even if the defendant knew that such actions constituted a crime. Finally, at least one state has adopted the Durham test, which absolves a defendant of culpability if the crime was considered to be the product of mental illness.
Importantly, however, regardless of the legal standard that is adopted in a particular jurisdiction, the insanity defense is rarely used and, in most instances, is not successful. Indeed, some studies report that defendants plead insanity in one-percent of felony cases and are only successful in approximately twenty-five percent of those cases. The reason for such a low success rate is arguably due, at least in part, to the fact that it is extremely difficult for defendants to demonstrate that they did not know the difference between right and wrong (i.e., that their actions were criminal), that they could not control their actions, or that their actions were exclusively the product of mental illness. Put differently, a defendant may suffer from a serious mental, psychological, or cognitive impairment, but if the defendant nonetheless knew that a particular action was a crime, those impairments, regardless of their severity, will not preclude a finding of guilt. Not surprisingly, therefore, prisons throughout the United States are occupied by many prisoners who suffer from diagnosed mental illnesses. Additionally, even where a defendant is found not guilty by reason of insanity, the result is often worse than the punishment that a defendant would have faced upon conviction. In New York, for example, an individual found not guilty by reason of insanity may spend years in a psychiatric institution and, in some instances, for a period of time that exceeds the maximum sentence of imprisonment to which the defendant may have been subject if convicted.
This is not to say, of course, that the standards used to prove insanity are without justification. Arguably, the law should not allow defendants to claim that having a mental illness entirely absolves them of culpability and punishment for criminal conduct. Doing so would allow scores of defendants to escape responsibility for culpable criminal behavior. And such an approach would likely stigmatize the mentally ill and perpetuate the empirically disproven belief that individuals with mental illnesses are more likely to commit crimes. It is to say, however, that the issue before the Supreme Court in Kahler – whether the Eighth and Fourteenth Amendments prohibit states from abolishing the insanity defense – will not consider the broader problem with the insanity defense, namely, that the M’Naghten, irresistible impulse, and Model Penal Code standards make it difficult, if not impossible, to prove insanity and, in so doing, leave defendants with mental, psychological, and cognitive impairments without meaningful legal protections at the guilt and sentencing phases.
Put differently, defendants with severe mental illnesses who fail to satisfy the insanity defense’s exacting standard are often subject to lengthy periods of incarceration that are similar to defendants who have no history of mental illness. Also, since the insanity defense is rarely used and, when used, is not likely to succeed, the issue in Kahler – whether a state may abolish the insanity defense – is, as a practical matter, inconsequential. Moreover, the Court’s decision will almost certainly not address the broader problems with the criminal justice system, namely, how it considers mental illness in culpability determinations, how it treats mentally ill prisoners once incarcerated, and how it assists mentally ill prisoners to reintegrate into the community upon release. The manner in which states confronts these issues will directly impact the criminal justice system’s efficacy, particularly regarding recidivism rates.
Ultimately, therefore, the answers to these difficult issues will likely require resolution through legislation at the state and federal level. And allowing states to adopt alternative approaches to adjudicating insanity – as Kansas has done – may reflect a productive starting point. Other proposals may involve embracing a middle ground in which courts recognize that defendants with diagnosed mental illnesses, although culpable in some, if not many, circumstances nonetheless warrant reduced sentences that incorporate a rehabilitative component and an increased focus on facilitating a successful re-entry into the community upon release. Another approach would be to recognize, as some states already do, that the concept of mens rea includes a moral, not merely a volitional component. This would require proof that the defendant intended to commit a criminal act, that the defendant understood that the act was morally wrong, and that the defendant consciously, and without mental, psychological, or cognitive impairment, chose to commit the act. This will lead to an understanding of mens rea that includes moral culpability within the definition of legal culpability. In any event, do not expect Kahler to resolve much, if anything, regarding the insanity defense, even though the defense is long overdue for principled reforms.
 See Amy Howe, Argument Analysis: Justices Open New Term With Questions and Concerns About Insanity Defense (Oct. 7, 2019), available at: https://www.scotusblog.com/2019/10/argument-analysis-justices-open-new-term-with-questions-and-concerns-about-insanity-defense/.
 See id.
 See The Insanity Defense Among the States, available at: https://criminallaw.uslegal.com/defense-of-insanity/the-insanity-defense-among-the-states/.
 See id.
 See id.
 See id.
 See Christopher Liberati-Constant and Sheila E. Shea, You’d Have to Be Crazy to Plead Insanity: How an Acquittal Can Lead to Lifetime Confinement, available at: https://www.nysba.org/Journal/2019/May/‘You_Have_to_Be_Crazy_to_Plead_Insanity’/ (“While research varies widely, some studies conclude that the defense succeeds in only one out of four cases, while others have found a success rate as low as one in 1,000”).
 See Inside the Massive Jail that Doubles As Chicago’s Largest Mental Health Facility (June 2016), available at: https://www.vera.org/the-human-toll-of-jail/inside-the-massive-jail-that-doubles-as-chicagos-largest-mental-health-facility/the-burden-of-mental-illness-behind-bars.
 See Mac McClelland When ‘Not Guilty’ Is a Life Sentence, available at: https://www.nytimes.com/2017/09/27/magazine/when-not-guilty-is-a-life-sentence.html.
 Ghiasi, N. & Singh, J. (2019). Psychiatric Illness and Criminality. Retrieved from: https://www.ncbi.nlm.nih.gov/books/NBK537064/.
Fall is in the air (well, maybe not here in Los Angeles), and that means we are in the part of the 1L year when many law students across the country are doing their first in-depth legal research. Thus, we are also at the time when many writing professors, like me, are looking for a great list of new, preferably free, AI research tools. Our students see plenty of services affiliated with the legacy databases, but too many do not learn much about the world beyond Lexis and Westlaw, except possibly GoogleScholar. As new lawyers, especially if they start in small or solo practices, they will need access to free tools.
Similarly, appellate practitioners with firm or agency affiliations might have access to Casetext, which will scan briefs and suggest missing case authority, Ravel (now part of Lexis), which uses AI to create “case law maps,” Fastcase, and more. Some solo practitioners, however, cannot afford even the lower-priced Casetext, and need free AI assistance. See generally Tom Goldstein, SCOTUSblog is partnering with Casetext, SCOTUSblog (Feb. 28, 2019, 12:00 PM), partnering-with-casetext (noting benefits and low cost of Casetext).
There are many excellent lists and comparisons of fee-based (and even some free) AI programs for law firms, far beyond the early comparisons of document scanners for discovery. See, e.g., Jan Bissett and Margi Heinen, EVOLVING RESEARCH: Habits, Skills, and Technology, 98 Mich. Bar. J. 41 (May 2019); https://www.lawsitesblog.com. For free AI services, however, some excellent explanations are in the amicus briefs in Georgia v. Public.Resource.org, Inc., 906 F.3d 1229 (11th Cir. 2018), cert. granted, __ U.S. __, 139 S. Ct. 2746 (June 24, 2019).
In Georgia v. Public.Resource.org, the Eleventh Circuit ruled the state-created annotations to Georgia’s statutes are not protected by copyright law, and reversed summary judgment for the State on its copyright claims against a public interest provider of free legal content, Public.Resource.org. According to the Eleventh Circuit, the annotations to the Code were “created by Georgia’s legislators in the exercise of their legislative authority,” and therefore “the people are the ultimate authors of the annotations.” Id. at 1233; see Jan Wolfe, U.S. High Court to Rule on Scope of Copyright for Legal Codes, June 24, 2019, Wolfe. The United States Supreme Court will hear argument in Georgia v. Public.Resource.org in December, and could rule that no state can copyright annotated statutes, opening the door for more AI content creators to provide annotated statutes online.
Many of the amicus briefs in support of Respondent Public.Resource.org explain the need for free access to statutes and other legal documents among law students, scholars, solo attorneys, and visually impaired counsel. See https://www.scotusblog.com/case-files/cases/georgia-v-public-resource-org-inc/. A great many of the amici are, themselves, providers of free AI research, and their briefs give the excellent lists of resources I mentioned.
For example, in their brief supporting a grant of certiorari, Next-Generation Legal Research Platforms and Databases describe themselves as: “[N]onprofit and for-profit creators and developers of next-generation legal research platforms that provide innovative tools and services for the legal community and the public. These tools serve the public interest by dramatically transforming the ways in which the public, courts, law firms, and lawyers access, understand, and utilize the law.” Next-Gen. Lgl. Res. Platforms, ACB. In addition to the for-profit AI services like Ravel and Casetext, the brief’s amici include these three providers:
(1) “Amicus Judicata ‘maps the legal genome’ and provides research and analytic tools to turn unstructured case law into structured and easily digestible data. Judicata’s color-mapping research tool fundamentally transforms how people interact with the law: it increases reading comprehension and speed, illuminates the connections among cases, and makes the law more accessible to both lawyers and nonlawyers.” Judicata has free and subscription-based services.
(2) “Amicus Free Law Project is a nonprofit organization seeking to create a more just legal system. To accomplish that goal, Free Law Project provides free, public, and permanent access to primary legal materials on the Internet for educational, charitable, and scientific purposes. Its work empowers citizens to understand the laws that govern them by creating an open ecosystem for legal materials and research. Free Law Project also supports academic research by developing, implementing, and providing public access to technologies useful for research.”
(3) “Amicus OpenGov Foundation produces cutting-edge civic software used by elected officials and citizens in governments across the United States. The Foundation seeks to ensure that laws are current, accessible, and adaptable. Everything the Foundation creates is free and open source, allowing the public to use, contribute to, and benefit from its work. Its software, coalition-building activities, and events are designed to change the culture of government and boost collaboration between governments and communities.”
I plan to share these three resources with my students, and to encourage them to watch Georgia v. Public.Resource.org and stay abreast of other developing AI platforms. I hope these sources are helpful to you as well. Happy research, everyone!
Tuesday, October 29, 2019
No offense to this blog’s readers, but appellate advocates in general are a narcissistic bunch. We like to think of ourselves as the drivers of legal change in our system. We assume that the arguments we present before appellate courts are the impetus for new opinions that will have far-reaching practical effects in law and society. I feel confident in ascribing this self-important attitude to appellate advocates because I held it dearly when I practiced as an appellate public defender. Nothing could be more meaningful, I assured myself, than a worthy struggle in the arena of ideas that is an appellate courtroom, with the eventual victor illuminating the legal path forward for decades.
When I began wearing an academic hat, I was forced to reexamine my assumptions about the role appellate advocates plays in shaping the law. And that reexamination was sobering. Our judicial system carries a deeply embedded faith in the procedural justice of adversarial litigation—the idea that when parties compete in a fair process for adjudicating disagreements, they will produce the most just results possible. But when I examined both my own experiences as an appellate clerk and the available data on high court adjudication, I was disappointed to realize how often judges themselves, rather than litigants, drive the outcomes in our supposedly adversarial courts. Take the United States Supreme Court, for example. Supreme Court litigants and their attorneys play a diminishing role in actually shaping the direction of the law, while the “umpire” Justices themselves take greater control over the direction of jurisprudence. The Justices have lowered the demands of their discretionary dockets by consistently granting certiorari in fewer than 100 cases per year, while simultaneously increasing the length and originality of their opinions; their written work is both longer and contains less borrowed language from the parties’ briefs than ever before. In those opinions, Justices themselves often participate in a kind of top-down lawmaking. An opinion in a case decided today often ghost-writes the brief the Justice would like to see presented in future appeals, allowing that Justice to shape the law according to their preferences in future case they have transparently invited litigants to file.
Oral arguments are little different. For several decades preceding this term, oral arguments have left less and less space for the advocates themselves to shape opinions. Attorneys in the Supreme Court instead play the role of straight man in conversations dominated by the Justices, who appear disinterested in the responses from the lectern. In a comparison of oral arguments in the 1958–1960 Terms and the 2010–2012 Terms, Barry Sullivan and Megan Canty noted the myriad ways in which Justices have come to dominate the direction of oral argument over the last half-century, including an increase in the ratio of Justice-spoken words to advocate-spoken words, a near doubling of the average number of words spoken by the Justices per oral argument, and far shorter opening monologues by counsel.
It was thus tempting to celebrate the Supreme Court’s recently-announced rule permitting the advocates approximately two minutes of uninterrupted monologue at the start of oral arguments. Perhaps this would mark a sea-change for appellate advocacy, revitalizing the role of advocates in Supreme Court litigation. Yet there is reason for hearty skepticism. Justices have long taken a guiding role in the direction of the law through use of the discretionary docket; invitations for specific arguments in future appeals; and techniques to slowly undermine, or even stealthily overrule, the reasoning in precedent cases. The two-minute rule will not cabin any of those techniques that permit the Justices, rather than the litigants, to drive the appellate litigation bus.
One well-worn trope holds that cases are seldom won at oral argument, but can readily be lost if one is insufficiently prepared to defend their brief’s arguments against a barrage of troubling hypotheticals and slippery slopes. If anything, the new rule only erodes that trope at the very extreme margins. Advocates may have slightly greater opportunity, in increments usually measured by a kitchen timer, to shape the direction of the law in their presentation to high courts. But this offers little salve when the hypotheticals come cascading down, with little interruption for actual answers, during the bulk of the argument. For appellate advocacy to meaningfully change, and for advocates to play a more determinative role in shaping the law, the justices themselves must approach their job with greater humility, aspiring to resolve the controversies actually presented rather than those they have hoped to see and invited to come before them. Without that change in attitude and approach, the two-minute rule may be little more than a procedural fig-leaf from a court that has drifted further and further away from the judicial system’s adversarial ideals.
This is all not to say that appellate advocacy has lost its value in today’s world. Preparing for an appeal remains one of the most demanding, rewarding, and fruitful exercises any attorney or law student can undertake. Nothing helps an attorney refine their legal arguments more than planning for the crucible of hypotheticals they might face from a high court. And the history of our nation’s highest courts still suggests that some advocates, through either sheer intellectual brilliance or perfectly-timed moments of inspiration, play a guiding role in shaping the direction of the law. But a clear-eyed evaluation of the appellate advocacy process suggests that Justices are the real drivers of case outcomes. Of course, appellate attorneys must still ensure that their clients receive vociferous representation and a prepared, skilled advocate at the podium. But that podium’s power is limited, and it is not often the driver’s seat for appellate litigation.
 Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339 (2017).
 See, e.g., Ryan C. Black & James F. Spriggs II, An Empirical Analysis of the Length of U.S. Supreme Court Opinions, 45 Hous. L. Rev. 621, 630, 634–35 (2008); Adam Feldman, A Brief Assessment of Supreme Court Opinion Language, 1946–2013, 86 Miss. L.J. 105, 137 (2017).
 See Michael Gentithes, Check The Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341-43 (2017).
 Barry Sullivan & Megan Canty, Interruptions in Search of a Purpose: Oral Argument in the Supreme Court, October Terms 1958–60 and 2010–12, 2015 UTAH L. REV. 1005, 1042.
 See Barry Friedman, The Wages of Stealth Overruling (with Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1 (2010).
October 29, 2019 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)
Tuesday, October 22, 2019
A couple of weeks ago Kent Streseman posted a blog about the Supreme Court's new "two minute rule," generally allowing the first two minutes of oral argument to proceed without questioning, and how it had been applied in the first couple of oral arguments after its introduction. As he noted, the writers of this blog are watching with interest to see how it is applied and what, if any, difference it makes in oral argument.
Of course, we all have our opinions as to the value of this time and how it should be used. As I ponder the best use, a couple of theories are bouncing around in my head that suggest possible strategies.
First, there is the narrative paradigm. Walter Fisher, a communications theorist, suggested this paradigm in the 70s, and it has continued to have influence since then. Basically, Fisher suggested that the objective notions of rhetoric may be less important than the subjective importance of the story being told to the listener. So long as the story is internally coherent and truthful to the listener's own notions, then the listener will have "good reasons" to believe the story, whether those reasons are objectively true or not.
As legal practitioners, we tend to shy away from the narrative paradigm. Instead, we tend to couch our "storytelling" in terms of Aristotle's pathos - one of his triad of support for a good argument that involves the appeal to our audience's emotion. But the narrative paradigm goes deeper than this. It suggests that there are "truthy" arguments that appeal to us as storytellers that are more influential than just an appeal to either logic or emotion.
The second theory in some ways justifies Fisher's paradigm with neuroscience. As we have written before on this blog, neuroscience supports the ideal that there is "fast" and "slow" thinking processes at work in all of us. The "fast" processes rely on surface thinking that is informed by often unconscious preconceptions, stereotypes, and biases. It takes little thought to avoid the snarling dog, drive a well-known route, or even read the average blog. Unfortunately, it also takes little thought to dismiss the arguments made by someone against whom the judge has an implicit bias, or rule in a way that is consistent with prior rulings, even though circumstances may have changed. It is important, then, to engage the "slow," deliberate thinking of a panel by exposing implicit bias where necessary.
These two concepts - the importance of storytelling and the dangers of implicit bias - suggest different approaches in different cases. It may be important in your case to unveil potential implicit bias and deal with it explicitly at the start in order to quickly engage deliberative thinking. It may also be important in your case to reframe the story that underlies the facts so that the panel does not lose track of the human story that underlies the legal issue. The two minute rule gives you time to address these issues when they arise.
There are many other strategic uses of the two minute rule. Whatever your thought process, just remember that this time is valuable, and should be used more deliberately than just a time set-aside for a statement of theme and introduction of a roadmap.
(Image credit: Honore Daumier, "He defends the widows and orphans, unless he is attacking widows and orphans," 1846 lithograph from the series "Le Gens de Justice.")
Sunday, October 20, 2019
On October 4, 2019, the United States Supreme Court granted certiorari in June Medical Services v. Gee, where the Court will consider whether a state law requiring that abortion providers obtain hospital admitting privileges constitutes an “undue burden” on a woman’s right to access abortion services. The Court’s decision in June Medical Services will directly impact the extent to which women can obtain abortions and, concomitantly, address the extent to which states may restrict abortion access.
By way of background, in Roe v. Wade, the Court held that the right to privacy under the Fourteenth Amendment includes a woman’s right to obtain an abortion. In so holding, the Court established a trimester framework in which women have a largely unrestricted right to obtain abortions during the first trimester; in the second trimester, the states could only regulate abortions to preserve a woman’s health, and in the third trimester the states could prohibit abortions except where necessary to protect a mother’s health. Nearly twenty years later, in Planned Parenthood v. Casey, the Court upheld Roe, but rejected the trimester approach and held that abortion restrictions would be invalidated if such restrictions constituted an “undue burden” on a woman’s right to obtain an abortion.
In the wake of the Court’s decisions in Roe and Planned Parenthood, some states developed a strategy to eviscerate abortion rights by enacting legislation that, while not directly challenging Roe, placed significant restrictions on women’s access to abortion. Most recently, in Whole Women’s Health v. Hellerstedt, the Court considered whether a Texas law requiring abortion providers to obtain hospital admitting privileges unduly burdened a woman’s right to access abortion services. Supporters of the law argued that the admitting-privileges requirement sought to facilitate access to a hospital in the event that complications arose during or after an abortion. In a 5-4 decision, the Court rejected this argument, holding that abortion procedures in Texas “were extremely safe with particularly low rates of serious complications,” such that women only experienced complications in one-quarter of one percent of cases. And when complications did occur, they rarely required hospital admission. Additionally, the Court held that the law would likely lead to the closure of many abortion clinics in Texas and require thousands of women to travel more than 150 miles to obtain an abortion. Thus, given that the law offered no tangible benefits – yet imposed substantial burdens on many women in Texas – the Court deemed it unconstitutional. The Court’s decision, however, did not resolve this matter.
In June Medical Services, the Court will again decide the constitutionality of a strikingly-similar law in Louisiana that, like the Texas law, requires abortion providers to obtain hospital admitting privileges. The reason for granting certiorari may be due to the Court’s composition, which has changed significantly and now includes Justices Neil Gorsuch and Brett Kavanaugh, or may involve facts specific to Louisiana that render the consequences of its law far less significant. Notwithstanding, the fact that the Louisiana law is, for all practical purposes, identical to the Texas law suggests that the Court will re-examine Whole Women’s Health and adopt one of three approaches. First, the Court may affirm Whole Women’s Health and hold that the law constitutes an undue burden on a woman’s right to obtain an abortion. Second, the Court may distinguish the facts in Whole Women’s Health from June Medical Services and therefore issue a narrow ruling. Third, the Court may overturn Whole Women’s Health and, in so doing, create uncertainty regarding what precisely constitutes an “undue burden” on the right to abortion, and create doubt regarding whether Planned Parenthood and Roe will be overturned in the future.
Regardless of one’s opinion concerning abortion, these cases underscore a larger problem with the Court’s abortion jurisprudence: the failure to adopt a categorical rule that firmly establishes and resolves the contours of abortion rights. Indeed, the Court’s adoption of the “undue burden” standard in Planned Parenthood was so vague and imprecise that it empowered states to enact statutes that arguably sought, under the guise of protecting women’s health, to do indirectly what they could not do directly: overturn Roe. The recent passage of “heartbeat” laws that prohibit abortions at any point after a fetal heartbeat is detected, which occurs at approximately six weeks into a pregnancy, is another example of the states’ efforts to weaken Roe and its progeny.
This is not to say, of course, that those who support such laws and oppose abortion are unprincipled in their convictions or misguided in their beliefs. Certainly, reasonable people can disagree concerning whether abortion should be legally and morally acceptable. It is to say, however, that the Court would better serve legislators, lower courts, litigators, and the public by adopting a categorical rule regarding the right to abortion rather than a vague, overly general, or unworkable standard. In so doing, the Court can prevent uncertainty in the law and provide a firm – and lasting – resolution. Put simply, regardless of how the Court rules in June Medical Services, it should do so in a manner that finally lays to rest any questions regarding the constitutional right to abortion.
 No. 18-1323 (2019).
 410 U.S. 113 (1973).
 505 U.S. 833 (1993).
 579 U.S , 136 S. Ct, 2292 (2016). The law stated that a “physician performing or inducing an abortion . . . must, on the date the abortion is performed or induced, have active admitting privileges at a hospital that . . . is located not further than 30 miles from the location at which the abortion is performed or induced.” (quoting Tex. Health & Safety Code Ann. §171.0031(a)).
 Id. at 2311.
 Id. (internal citation omitted).
 See, e.g., Renae Reints, The Are The States That Passed ‘Heartbeat Bills,’” (May 31, 2019), available at: https://fortune.com/2019/05/31/states-that-passed-heartbeat-bill/.
Saturday, October 19, 2019
This term, SCOTUS will hear a sovereign immunity case involving Blackbeard’s sunken pirate ship. In Allen v. Cooper, 18-877, the Court will address whether Congress validly abrogated state sovereign immunity in the 1990 Copyright Remedy Clarification Act (CRCA) by providing remedies for copyright holders when states infringe their federal copyrights.
Why does this matter to appellate advocacy, aside from the obvious fun of saying “Aaarrr!” when discussing an Eleventh Amendment case? The case could impact the scope of free access researchers and appellate practitioners have to online materials. In fact, while the case raises deep concerns for intellectual property creators, it also shows the increasing push by States to make images and documents available to the public at libraries and universities, and to preserve historic materials digitally.
In 1718, Blackbeard’s Queen Anne’s Revenge ran aground a mile off the coast of what is now called Beaufort, North Carolina. Legend says her captain and crew immediately transferred all treasure to smaller ships, and the Revenge remained underwater for over 200 years. According to the Fourth Circuit’s opinion in Allen v. Cooper, 895 F.3d 337, 343 (4th Cir. 2018), in 1996, a private research and salvage firm operating under a permit issued by North Carolina discovered the wreck of the Revenge. The researcher hired Petitioner, Frederick Allen, to document the shipwreck. Id. Allen obtained the rights to create video footage and photographs of the Revenge with another permit issued by North Carolina, and Allen registered his work over the next 13 years with the U.S. Copyright Office. Id. at 342, 344.
At some point, North Carolina posted pieces of Allen’s copyrighted works on State websites and in a State publication. The State and Allen settled copyright claims from these postings, and the State agreed not to use Allen’s commercial copyrighted material in the future. Id. at 344-45. Nonetheless, the State soon published more of Allen’s Revenge video and images online, and then the North Carolina Legislature passed “Blackbeard’s Law,” which converts many of Allen’s images to the public record. See id. at 342; N.C. Gen. Stat. § 121–25(b) (2015) (providing that photographs and video recordings of shipwrecks in the custody of North Carolina are public records); Amy Howe, Justices grant three new cases, SCOTUSblog (Jun. 3, 2019, 12:16 PM), https://www.scotusblog.com/2019/06/justices-grant-three-new-cases/.
Allen sued North Carolina for copyright infringement and for a declaration that Blackbeard’s Law is unconstitutional. The state moved to dismiss on the grounds of sovereign immunity, and Allen argued the CRCA abrogated North Carolina’s immunity. The district court ruled for Allen, but the Fourth Circuit reversed, holding Congress acted improperly in enacting the CRCA. Allen, 895 F.3d at 342-43, 350-53. The Supreme Court granted cert, and will hear the case on November 5. https://www.scotusblog.com/case-files/cases/allen-v-cooper/.
Over twenty amici have filed briefs. Amici in support of Allen make excellent arguments in favor of strengthening IP protection and maintaining the remedies provided in the CRCA. For example, Oracle, the Software & Information Industry Association, and a group of prominent law scholars have each filed briefs contending Congress properly protected IP rights and innovation in the CRCA. Oracle ACB, 2019 WL 3828598; SIIA ACB, 2019 WL 3814393, and Scholars ACB, 2019 WL 3828597. These briefs stress the need to protect inventors and innovators from state action and potential wholesale public adoption of their copyrighted property.
On the other hand, amici in favor of North Carolina argue copyright holders have remedies aside from the CRCA. The also claim abrogating immunity will limit the public’s access to documents at public university and government research libraries. The American Library Association and others stress that public archivists need protection for their large-scale, costly digitization projects to create open access and to save documents of historical significance. ALA ACB, 2019 WL 4858292. Similarly, a group of public universities note they are acting in the public interest to promote “education, research and community engagement” when digitizing documents and already carefully respect copyrights. Public Universities ACB, 2019 WL 4748384.
Whatever the outcome of these arguments, our appellate community should keep an eye on this case. Not only does it offer pirate fun, but it presents serious issues of property rights and public access to research materials.
Monday, October 14, 2019
If you’ve dreamed of arguing in the Supreme Court, are willing to wear a morning coat, and have the right credentials, there’s a job opening for an Assistant to the Solicitor General of the United States. The posting closes on November 1, so there are still two weeks to apply.
The Solicitor General, currently Neal Francisco, represents the United States before the Supreme Court. The United States is involved in approximately two-thirds of all the cases the U.S. Supreme Court decides on the merits each year. According to the job posting, Assistants to the Solicitor General:
work on briefs on the merits, petitions for writs of certiorari, jurisdictional statements, briefs in opposition, motions to affirm, papers relating to stays, and other forms of motion practice before the U.S. Supreme Court. They also review recommendations as to whether the government should seek U.S. Supreme Court review in cases it has lost, whether the United States should appeal to intermediate appellate courts cases it has lost in the trial courts, whether the United States should pursue rehearing en banc when cases are lost at the appellate level. They prepare memoranda to the Solicitor General containing such recommendations and also memoranda discussing other legal problems as assigned; draft correspondence; and advise the Solicitor General on different aspects of the work of the Office. The incumbent argues cases before the U.S. Supreme Court–ordinarily two to three times each Supreme Court term.
Of course, it is a prestigious position, and the qualifications reflect that.
1. J.D. degree, active bar membership;
2. Exceptional and strong academic background;
3. Federal appellate clerkship or Supreme Court clerkship strongly encouraged;
4. Significant federal appellate litigation experience;
5. Broad experience in areas of law germane to federal governmental practice;
6. Exceptional writing skills;
7. Strong oral advocacy skills; and
8. Demonstrated ability to work cooperatively with less experienced attorneys, providing guidance and assistance.
Historically, many who served in the SG office have gone on to the bench or to serve in other government office. Good luck to all of the applicants!
Saturday, October 12, 2019
United States Supreme Court Considers Whether Title VII of the Civil Rights Act of 1964 Prohibits Discrimination Against Gay and Transgender Persons
On October 8, 2019, the United States Supreme Court heard oral argument in three cases that will decide whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against gay and transgender persons.
Specifically, in Altitude Express v. Zarda (No. 17-1623) and Bostock v. Clayton County, Georgia (No. 17-1618), the question presented is whether discrimination against an employee on the basis of sexual orientation constitutes employment discrimination “because of . . . sex” within the meaning of Title VII. In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), the question presented is whether Title VII prohibits discrimination against transgender people based on: (1) their status as transgender; or (2) impermissible sex stereotyping under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
By way of background, Title VII provides in relevant part as follows:
It shall be an unlawful employment practice for an employer:
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.
The text of Title VII unquestionably prohibits discrimination against individuals based on their biological sex. What remains unresolved, however, is whether “discrimination against any individual … because of such individual’s … sex” includes a prohibition against discrimination on the basis of sexual orientation and transgender status.
II. Discrimination on the Basis of Sexual Orientation
On one hand, it can be argued that, if Congress had intended to prohibit discrimination on the basis of sexual orientation, it would have included language to this effect in Title VII. Thus, it is Congress’s, not the Court’s, responsibility to amend the statute to include sexual orientation within Title VII’s protections.
On the other hand, discriminating against individuals on the basis of sexual orientation is arguably predicated on impermissible gender stereotyping and, as such, constitutes discrimination on the basis of sex. Indeed, in Price Waterhouse v. Hopkins, the Court held that “we are beyond the day when an employer could evaluate employees by assuming or insisting that they matched the stereotype associated with their group.” Accordingly, discriminating against gay persons constitutes discrimination “because of [an] individual’s … sex” because it is based on an impermissible stereotype regarding how males and females should behave (i.e., they should be heterosexual).
III. Discrimination Against Transgendered Persons
In R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, counsel representing the transgender individual argued that a reasonable interpretation of Title VII supports prohibiting discrimination against transgendered persons:
Harris Homes fired her [the transgender individual] for identifying as a woman only because she was assigned a male sex at birth. In doing so, it fired her for contravening a sex-specific expectation that applies only to people assigned male sex at birth; namely, that they live and identify as a man for their entire lives. That is disparate treatment on the basis of sex.
Counsel for the funeral home disagreed, arguing that “[t]reating women and men equally does not mean employers have to treat men as women. That is because sex and transgender status are independent concepts.”
This case certainly presents the Court with difficult questions, including how, for purposes of Title VII protections, to address the concept of gender identity, and if gender non-conforming individuals, namely, those who believe that their gender does not reflect their assigned sex, should be distinguished from those who have permanently transitioned to another sex (i.e., transsexuals). Indeed, as many feminist scholars posit, gender is arguably a social construct, in which society defines the roles that are deemed appropriate for individuals of a particular biological sex (e.g., male or female). As such, some might argue that one’s gender identity reflects a subjective belief that they do not comport with the gender construct associated with their assigned biological sex. For this reason, advocates of this position would likely argue that gender identity is distinguishable from sex (and possibly sexual orientation) and that it would be difficult, if not impossible, for employers to identify gender non-conforming individuals. As such, creating a remedy for discrimination on this basis would be entirely unworkable and, as Justice Neil Gorsuch stated, cause “massive social upheaval.”
Conversely, a strong argument can be made that if an employer knowingly discriminates against a gender non-conforming individual, such discrimination would reflect discrimination on the basis of gender stereotyping, which the Court in Price Waterhouse deemed impermissible. Supporters of this position would likely argue that discrimination against gender non-conforming individuals is indistinguishable from discrimination against gay persons because both are predicated upon gender stereotyping. As Justice Ruth Bader Ginsburg noted during oral argument, “the cases have said that the object of Title was to get at the entire spectrum of sex stereotypes.”
The Justices appeared to struggle with these issues, particularly regarding whether the legislature, not the judiciary, should amend the law to include protections for transgendered persons, whether the definition of sex should include gender identity, and whether a ruling for transgendered persons would negatively impact individuals who, based on religious beliefs, would choose not to hire transgendered persons.
The Court will likely issue a decision in June 2020.
 42 U.S.C § 2000e-2.
 490 U.S. at 251 (emphasis added); see also Oncole v. Sundowner Offshore Services, 523 U.S. 75 (1998).
 See Transcript of Oral Argument, R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (No. 18-107), p. 4:3-10, available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-107_c18e.pdf.
 Id. at p. 27:22-25.
 Id. at p. 25:17-18.
 Id. at p. 50:24-51:1 (emphasis added).
 Mark Sherman and Matthew Barakat, Divided Supreme Court Weighs LGBT People’s Rights, (Oct. 8, 2019), available at: https://www.apnews.com/b67d54e0812e43db832e086806a3a2fd.
Wednesday, October 9, 2019
It has been a week since Supreme Court of the United States rocked the always-ready-to-rock appellate-advocacy world by rolling out the Two Minute Rule: lead counsel for parties generally will have two minutes to argue uninterrupted before a white light shines and the questioning begins. We at the Appellate Advocacy Blog have feelings—many feelings, complicated feelings, nascent feelings—about this rule. But mostly we’re curious to see how it plays out.
If the justices mostly adhere to the rule—and, as the term began this week, early reviews indicate that they mostly did—composing a set piece for that two-minute window likely will become part of the advocate’s craft. For now, though, in the early days of this new world, I’m just curious: what does an uninterrupted two-minute opening look like on the page, seeing as we’re used to seeing JUSTICE HOTMCBENCHFACE appear on the transcript a few syllables after “May it please the Court...”?
Here’s the answer, from a pair of First Monday/First Tuesday arguments by particularly outstanding advocates.
Sarah Schrup of Northwestern Law School, counsel for Petitioner in Kahler v. Kansas, whose first question from Justice Ginsburg came right after the dying of the white light:
Pamela Karlan of Stanford Law School for Petitioner in Bostock v. Clayton County:
That is the canvas.
Tuesday, October 8, 2019
The United States Supreme Court is under attack on a variety of fronts. Public confidence is declining and coverage in the press is largely negative. Information regarding deliberations, once considered confidential, is freely leaked. And senators write amicus briefs openly threatening court packing legislation if the Court does not rule a certain way.
One of the critiques concerning the Court is that the justices seem to be above the same rules that guide other judges. This is, in fact, true. There is no code of ethics for the United States Supreme Court. And for good reasons.
Chief Justice Roberts presides over an office known as the Judicial Conference of the United States, which worked with the ABA to create and promulgate the Code of Conduct for Federal Judges in 1973 and continues to revise and update those rules. The code applies to all U.S. circuit judges, district judges, Court of International Trade judges, Court of Federal Claims judges, and magistrate judges. Conspicuously missing from that list are "United States Supreme Court Justices."
This lack of an ethical code means that some of the conduct recently criticized - leaks concerning confidential deliberations, criticism of political candidates, speeches at partisan legal organizations, and charitable fundraising efforts, to name a few - is not governed by the same rules that would apply to other federal judges. As a result, there have been several legislative efforts to impose a code of ethics on the Court.
Justice Roberts addressed this issue in his 2011 Year-End Report on the Federal Judiciary. Justice Reports revealed that the members of the Court do, in fact, consult the Code in assessing their ethical obligations. Just as the Code "provides guidance" to lower judges, it informs their actions. And, while there are separation of power issues that might be raised in objection, the Court also voluntarily complies with other legislative enactments, such as financial reporting requirements and limitations on gifting and outside income.
This reference to separation of powers is an important one. According to Article 3, Section 1 of the Constitution, Supreme Court Justices serve as long as they exhibit "good behavior," and under Article 2, Section 4, they face impeachment and removal only for "treason, bribery, or other high crimes and misdemeanors."
This separation from political control creates a problem with binding ethical rules for the Justices. Would legislation imposing such rules violate the separation of power doctrine? Who would determine the constitutionality of such an imposition if not the Supreme Court itself? Would authorizing the Judicial Conference, instead, to make ethical rules that are binding on the Supreme Court violate the Constitutional provision mandating that the Supreme Court is to remain "supreme" over all other courts, since the Conference is primarily composed of judges from lower federal courts? And what power would Congress have to enforce any legislation it tried to pass if the Supreme Court did not comply?
These are all extremely difficult questions that, so far, have been dodged by voluntary compliance with the legislation that has been passed. It seems unlikely that any legislation imposing a set of ethical rules on the Court (and there have been bills introduced since the 1970s to do so) will pass, given these obstacles.
That does not mean that the Supreme Court operates above the law. It just means that the justices operate under their oaths of office to fairly and impartially administer the law as the supreme and final arbiter of that law. As Justice Roberts noted in his year-end report, "at the end of the day, no compilation of ethical rules can guarantee integrity. Judges must exercise both constant vigilance and good judgment to fulfill the obligations they have all taken since the beginning of the Republic."
Without venturing too deeply into legal history*, this usage of the Code as a form of moral guidance is not new. The original canons were promulgated in 1908 by the ABA in reaction to the charge by President Roosevelt in a 1905 Harvard commencement speech that there be a public requirement that "all men of means, and especially the men of vast fortunes, ... set up an example to their less fortunate brethren, by paying scrupulous heed not only to the letter but to the spirit of the laws, and by acknowledging in their heartiest fashion the moral obligations which cannot be expressed in law, but which stand back of and above all laws." Specifically, Roosevelt's critique of lawyers as "hired cunning" more interested in commercialism than justice struck a strong progressive chord a the time, and resulted in the eventual adoption of the broader canons that governed the profession for so many years in much broader moral strokes than the Code that eventually replaced them.
The Court's usage of the Code, then, as a starting moral guidepost is in keeping with history. The Court has also indicated that it may be considering adopting its own Code in response to recent criticism. This, too, would be in keeping in history and our new populism. But if there is to be some more binding form of ethical guidance, it likely will have to come from the Court itself.
* For more reading on the history of the 1908 Canons see James M. Altman, Considering the A.B.A.'s 1908 Canons of Ethics, 71 Fordham L. Rev. 2395 (2003).
(Image Credit: Andreas Praefcke, Wikipedia U. "Diogenes in Search of an Honest Man." Ancient History Encyclopedia. Last modified August 06, 2014. https://www.ancient.eu/image/2908/.)
Monday, September 30, 2019
Over the last couple of weeks, this blog has mentioned several new podcasts. Another to add to the list is Strict Scrutiny. It launched this summer, and includes commentary by professors Leah Litman, Melissa Murray, and Kate Shaw, and appellate lawyer Jaime Santos. It’s being described as “a podcast about the Supreme Court and the legal culture that surrounds it.”
Three episodes were released over the summer, and today they released the first episode of the fall term. Each episode is a little over an hour long. I’ve now listened to almost all of the released podcasts have already subscribed for the future episodes. I’m hooked! First, it’s a substantive discussion of the Supreme Court, with explanations that would be approachable for law students, lawyers, and others interested in the Court. I discussed stare decisis with my 1Ls last week, so I am planning to recommend that they listen to episode 1 to hear more about the concept in action at the Court last term.
Second, it’s conversational and light-hearted. I’m enjoying the pop-culture references and tone. Any podcast that makes Pitch Perfect jokes about ACCA is right up my alley. I found myself chuckling frequently. For the most part, I view podcasts as a form of entertainment, and I think the approach of these contributors is striking the right balance of informative and approachable. These experts are conscientious about discussing complex cases in an understandable way. Finally, as the contributors themselves note, Supreme Court practice and commentary is often male-dominated, so it’s a refreshing change to hear a conversation between four impressive women about the Court.
I’m already looking forward to more episodes as they are released every couple of weeks during the upcoming term.
Thursday, September 26, 2019
The second podcast in the SCOTUStalk series on oral advocacy featured William Jay, a former assistant US Solicitor and current partner at Goodwin. He has argued 17 cases before the Supreme Court and is a former clerk of Justice Scalia.
This podcast is full of practical tips for the appellate advocate. In response to questions from Amy Howe of Howe on Court, Jay described the differences between lower court practice and the nation's highest court. A seemingly obvious observation, but one not often discussed, was the dynamic that at the Supreme Court the advocate always faces the same nine judges. In the lower courts an advocate might not know who is on the panel until the morning of the argument. At the Supreme Court, this gives an obvious advantage to allow an advocate to be knowledgeable about each justices' prior written positions on the issue. Further, knowing the justices' questioning style is helpful. Jay characterized Justice Scalia as a questioner for whom he never had to guess his opinion, but also knew he was open to persuasive arguments.
In preparation for his appearances at the Court, Jay conducted at least 2-4 moot sessions. He points out that as a government attorney, he had access to agency expertise and heavily used those resources. As a new attorney arguing for the government he remarked that the cases given to the newbies were either 9-0 winners, or 9-0 losers. He is not sure whether his first tax case was supposed to be a winner or a loser, but he was up against a formidable lawyer who later became a federal judge herself.
Jay said the hardest kinds of questions to answer are the "line drawing questions" - those questions where the justices keep presenting hypothetical like "it is 2 years, 3 years, 4 years?" He states that for those questions the best way to answer is have some limiting principle in mind, to anticipate these hypotheticals, and to have potential exit strategies. Jay says that one mistake new advocates make is that they think they can decisively direct the flow of the argument. Never tell the Court "I'll get to that," or, "That is not this case."
On rebuttal he discussed the competing philosophies of whether one should make a glancing blow at a primary issue, or take the knock out to a tertiary issue. He came down on the side of attacking the primary issue even if the strike is not as spectacular as another lesser point that might be made.
A final bit of advice was to the substance of the oral argument. Jay said that the presentation of the argument should be the substance of the brief, but stated differently. Think of the thematic points, where to start the argument, and the absolute 2-5 things that must be said.
Tuesday, September 24, 2019
Earlier this month, CNN reported that Judge Roberts had supported the administration's ability to add a citizenship question to the census before he had decided to oppose it. According to "sources familiar with the private Supreme Court deliberations," Roberts had, to use a political term, flip-flopped. This seemed to be supported by the opinion, which began by noting the broad power of the relevant agency to include questions about citizenship, but eventually concluded that it still had to provide an honest rationale for any decision to do so, and that the record indicated that the explanation provided was pretextual.
This was not the first time Roberts had been allegedly outed for changing his mind during the deliberative process. In 2012, when Roberts joined the majority to support the Affordable Care Act, the press again used insider information to show his change of mind. In that case, CBS cited to "two sources with specific knowledge of the deliberations," who detailed Roberts' journey from one side to another.
There is a very short list of who these sources might be. It is also fairly apparent that the damage to the Court is mounting, as these leaks fit into the narrative that politics plays more of a role than precedent.
Of course, judges do, and should, change their minds during the deliberative process. Simple issues are rarely appealed, and even more rarely reach this level. The complex issues involved require time to determine, and we should hope that judges maintain an open mind during this time, permitting change. And the modern "rule" of judicial silence in response to these leaks means that judges are unable to defend those deliberations.
These leaks are nothing new. As Jonathan Peters wrote for Slate after the 2012 leaks, there is a long history of leaks from the high court. This history seems to indicate that the damage done by the leaks, which are usually politically motivated, is mounting.
In the 1800's, the New York Tribune seemingly sat in chambers with the Court. Days before the Court handed down its decision in Pennsylvania v. Wheeling and Belmont Bridge Company, the Tribune reported the outcome. It then provided detailed accounts of the deliberations in the Dred Scott case. Historians have speculated that the leak came from Justice McLean, who authored a dissent in those cases.
In the 1960's, a law clerk leaked information to the New York Times about Justice Fortas and his close connection to the administration. According to the U.S. Senate website, as a sitting justice, Fortas regularly attended White House staff meetings, briefed the president on secret Court deliberations, and, on behalf of the president, pressured senators who opposed the war in Vietnam. When these details were revealed during his confirmation hearings to be appointed Chief Justice, along with details of a private stipend he received to teach, rather than being confirmed as Chief, he eventually stepped down from the bench.
The leaks escalated after this point. In the 1970's Justice Douglas wrote a memo to his colleagues in the Roe v. Wade case, and it reached the hands of the Washington Post. Time then published a story about Roe v. Wade before the decision was announced by the Court, detailing the votes. Believing that a law clerk was again to blame, Justice Burger created the "20-second rule," meaning any clerk caught talking to a reporter had no more than 20 seconds left as a clerk before being fired.
Of course, the 20-second rule only applies to current clerks. Thus, in 2004, a group of former clerks leaked the details of the deliberations in Bush v. Gore to Vanity Fair.
Some of the leaks have been remarkably detailed. In 1986, ABC reported not only the outcome but the actual vote break-down before the decision was handed down regarding the Gramm-Rudman-Hollings balanced budget act. It also disclosed the date the decision would be handed down, a forecast that was off a few days reportedly only because Justice Burger delayed the release so that the reporter would be wrong about something.
This brief history gives some clue as to who the most likely sources might be. But whether it is a judge or a clerk (and it seems unlikely that it could be anyone else), they are damaging the Court at a time when it is already under serious attack.
As Justice Frankfurter noted, the secrecy of the Court's work is "essential to the effective functioning of the Court." Mr. Justice Roberts, 104 U. Pa. L. Rev. 311, 313 (1955). Justice Burger considered the enforcement of this secrecy to be an essential "inherent power" of the Court. New York Times Co. v. United States, 403 U.S. 713, 723 n.3 (1971) (Burger, dissenting). Rehnquist stated in a lecture on the topic that without secrecy, the open, at times short-tempered discussions at conference would end, to the detriment of the Court and the public it serves.
Judges need to feel free to change their minds and be open with each other as they deliberate and discuss difficult issues. If leaks and reports continue to cast any change of heart during the deliberative process as being political motivated, it seems likely that the result might be a chilling of both communication and flexibility in thought. Either one would be dangerous.
(image source: Library of Congress, World War II poster from the U.S. Navy)
Saturday, September 21, 2019
Since 1913, the Library of Congress has provided a resource for Constitutional scholars, practitioners, and the public, The Constitution of the United States of America: Analysis and Interpretation, generally known as The Constitution Annotated. According to the Library of Congress, the "Constitution Annotated has served as the authoritative source for the American public to learn about the nation’s founding document alongside Supreme Court decisions that have expounded upon and refined it." The Constitution Annotated thus "provides a comprehensive overview of how the Constitution has been interpreted over time." https://constitution.congress.gov/about/
The Constitution Annotated is a wonderful resource to be sure, as it includes over 2,700 pages of annotations based on SCOTUS opinions and many "plain English" explanations for non-lawyers. The Constitution Annotated also includes helpful tables on the Justices, opinions overruled, and laws held unconstitutional.
Unfortunately, when the only way for most of us to access this resource was in hard-bound versions published every 10 years for Congress, its use was limited. Moreover, while the Library eventually made The Constitution Annotated available online, it did so only as large, non-searchable PDFs on its website and through a clunky app for Apple only. On the other hand, for many years the Library provided Congressional staff an internal, fully-searchable digital version of The Constitution Annotated, including separate webpage sections for each chapter, notes on founding documents, and links to historical and contextual materials.
In a Constitution Day 2019 letter to the Library about The Constitution Annotated, Senators Angus King and Rob Portman explained: “Unfortunately, the public facing version is not . . . lucid.” The Senators noted the 2013 iPhone app, like the Library of Congress public website, displayed "a document longer than the average Bible" as "a slew of PDF pages" that are "impossible" to read "on a phone’s tiny screen." The Senators quoted Thomas Jefferson’s belief every American has an obligation "to read and interpret the Constitution for himself," and urged the Library to make the Congressional portal version available to the public. Specifically, they asked for "a continuously updated structured data file, such as the XML format in which it is prepared, [to] empower researchers and students." https://www.king.senate.gov/newsroom/press-releases/to-honor-constitution-day-king-urges-library-of-congress-to-make-constitution-annotated-available-to-all-americans.
Shortly after the Senators sent their letter, the Library launched a new website for The Constitution Annotated. While still a work in progress, the new constitution.congress.gov includes many of the searchable and user-friendly features the Senators requested. On the updated site, the Library also explains it will be making more changes in the coming months, as part of a “multi-year project to modernize the Constitution Annotated . . . to better enhance its educational value to a broader audience and to reflect the most recent Supreme Court terms.”
Now, visitors to the site will see separate links for The Annotated Constitution chapters and searchable databases of annotations and opinions. Moreover, the pages are integrated nicely with the Library’s other resources. For example, the homepage has links to interesting material like PDFs of George Washington’s handwritten letters, documents from the Constitutional Convention, and Congressional Research Service bulletins on current areas of debate in Constitutional law.
For anyone practicing or writing about Constitutional law, as well as students of our Constitution--young or less young--this site is a nice resource. Hopefully, the continued updates will be quick and helpful as well. Enjoy this updated spot for SCOTUS opinions, annotations, and historical documents.
Monday, September 16, 2019
Recently, biography and memoir have been my favorite pleasure-reading categories, and I’ve found myself drawn to books detailing the lives of Supreme Court Justices, particularly what path took them to the high court. For me, two have stood out this summer, as they tell the inspiring stories of Sandra Day O’Connor, the first woman Supreme Court Justice, and Sonia Sotomayor, the first Latina Supreme Court Justice.
First, by Evan Thomas is a biography of Sandra Day O’Connor, and it’s well-worth a read, particularly for those of us who never knew a time when there was not a woman on the Supreme Court. That was not the world Sandra Day was born into in 1930, and her rugged western upbringing prepared her to blaze trails both in Arizona and in D.C. Thomas impressively weaves together the threads from childhood, to political activism in Arizona, to the bench. I grew up in the eighties, went to college in the ninety’s, and only knew Justice O’Connor as the “swing vote,” and a highly-visible member of the Rehnquist court. I thoroughly enjoyed learning about the other aspects of her life, and Thomas’s take on how they impacted her jurisprudence.
I chose Sonia Sotomayor’s My Beloved World because she came to speak at the University of Houston last year, and several things she said about her journey intrigued me. As an educator, I wanted to learn more about her time at Princeton where she realized that she had ground to make up, particularly in argument and writing skills when compared to her affluent classmates coming from excellent prep schools. On the whole, the book is warm and displays the same charm I experienced in an auditorium full of people at her visit. It ends with her appointment to the United States District Court for the Southern District of New York, though, so there is no discussion of her time on any bench. Instead, it’s an intimate telling of her childhood, schooling, family, and career, leading into her judicial life. While there is no explanation of her jurisprudence, again, there are threads from her early life and career that one can see woven into her later life as a judge.
Dahlia Lithwick’s picks from several years ago are listed here, if you are interested in other suggestions beyond mine.
As a final note, The Education of Brett Kavanaugh, an Investigation by Robin Pogrebin and Kate Kelly will be released tomorrow. It is sure to be a less inspiring read. Here’s the link to the New York Times book review. While this book also takes a look at the young life of a Supreme Court justice, we all know it will have a different feel. Some may be eager to dive into details uncovered by Pogrebin and Kelly as they looked at Kavanaugh’s “extracurriculars,” but I am not convinced this one will end up on my nightstand any time soon.
Do you have a favorite biography or memoir of a Supreme Court Justice?
Thursday, September 12, 2019
Amy Howe, a former contributor at SCOTUSblog, is conducting a podcast series with notable Supreme Court oral advocates. The first in the series to be interviewed was Paul Smith who has argued twenty-one cases before the Court. Smith discusses his first appearance in the Court in 1986, pre-Scalia days, and how things have changed. He says that it used to be common for the petitioner to take three or four minutes to frame the facts, before having to field any questions. Today, a concise opening statement of less than two minutes is imperative if one wishes to have any hope of framing the argument at all.
His preparation for arguments is not mysterious. He rereads all the briefs, tries to anticipates the hard questions, drafts a short outline of his intended argument, and most importantly conducts numerous moot courts. He emphasizes that a memorized but not rehearsed-sounding opening is important. He recalls Justice Rehnquist interrupting opposing counsel during one argument with the interjection, "Are you reading?!" flustering the other attorney so much that he barely recovered.
Smith argued the landmark case of Lawrence v. Texas, and recalls getting questions from Justice Scalia that he had not anticipated nor had anyone in his moot preparations hit upon during practice. Smith says all one can do in that situation is hope that you can come up with something sensible, and perhaps get lucky with a friendly justice who may intervene. However, he states that if a thorough moot court preparation has been undertaken, it is usually the case that an answer can be formed that is consistent and coherent with your position.
As for strategies when taking the respondents' position, Smith says there is not much time to take notes. An advocate must just listen and make one decision - where to start. When contemplating rebuttal, an additional decision should be made - whether to make one at all. Many times those who make rebuttal often wish they had not stood up.
The series can be found at SCOTUStalk and the episodes are less than twenty minutes long.
Tuesday, September 10, 2019
Amicus briefs are wonderful tools, and fun to draft. Freed from many of the rule restrictions imposed on a regular party brief, an amicus writer can soar rhetorically over the fray and make "big picture" observations of considerable help to the court. They can be full of satire. They can tell true stories. They can even be cartoons.
That freedom, however, can be abused. And when it is, the friend of the court can become an enemy. To be a friend to the court, keep these three rules in mind.
1. Amicus briefs should add something new and valuable to the case.
First, amicus briefs are not an opportunity to ghost-write around briefing limitations. As counsel for a party to an appeal, I have been asked to not only solicit amicus briefs, but to ghost write them for friends of the court who will then put their name on them. Resist that urge.
“A true amicus curiae is without interest in the litigation matter. An amicus curiae is a ‘bystander’ whose mission is to aid the court, to act only for the personal benefit of the court.” See Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, 120 (1957). In some courts, the amicus must certify that they are not being paid or supported by a party, or disclose all sources of funding for the brief. Thus, Federal Rule of Appellate Procedure 29 requires disclosure of all sources of funding and any input on the writing process by a party's counsel. Supreme Court Rule 37 is similar. Some states have much looser rules, while others mirror the federal system. But everyone should be mindful of Judge Posner's position that most parties use amicus to simply add to their page length, and as such, most amicus briefs should be ignored because they do not offer anything of value to the court that is not already in the party's briefs. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542, 544 (7th Cir. 2003).
A true amicus recognizes this rule and presents something new and valuable to the court. The parties recognize this and solicit briefs that will add value to the argument without ghost writing them. Ignoring the rule likely means your amicus will likewise be ignored, or even rejected.
2. Amicus briefs should not be used for personal attacks.
Second, amicus briefs should not be used for personal attacks on either the litigants or the court. Recently, members of the U.S. Senate filed an amicus brief in a Supreme Court case involving the Second Amendment. Authored by a member of the Senate as "Counsel of Record," the brief repeatedly and selectively quotes Justice Roberts, cites to public polls and numerous websites more than cases, hints at a dark money conspiracy between the NRA, the Federalist Society, and the Court, and concludes with a thinly-veiled threat:
Today, fifty-five percent of Americans believe the Supreme Court is “mainly motivated by politics”(up five percent from last year); fifty-nine percent believe the Court is “too influenced by politics”; and a majority now believes the “Supreme Court should be restructured in order to reduce the influence of politics.” Quinnipiac Poll, supra note 2.To have the public believe that the Court’s pattern of outcomes is the stuff of chance (or “the requirements of the law,” Obergefell, 135 S. Ct. at 2612 (Roberts, C.J., dissenting)) is to treat the “intelligent man on the street,” Gill v. Whitford, No. 16-1161, Oral Arg. Tr. at 37:18-38:11 (Oct. 3, 2017), as a fool.
The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be “restructured in order to reduce the influence of politics.”Particularly on the urgent issue of gun control, a nation desperately needs it to heal.
While the brief garnered plenty of attention and, thus, likely accomplished exactly what it set out to do, it was harmful in a way few people noted. Judges certainly are not above criticism. But the judiciary is put in a difficult position when it is criticized in its own forum. If it censors the criticism, it loses status. It also has limitations on its ability to respond. Therefore, as Learned Hand opined, "Let [judges] be severely brought to book, when they go wrong, but by those who will take the trouble to understand."
Attorneys (and the authoring Senator was an attorney) in particular should be cautious in their critiques of the courts and counsel, because they have an obligation to uphold the legal system. This may, at times, require "speaking truth to power," and many commentators think this is exactly what the amicus did. But it should not be done in a way that diminishes that power of the courts overall, or that recklessly impugns the integrity of our highest court. See Model Rule of Professional Conduct 8.2. And the brief here, weaponized as it was to pointedly attack the court at the top of our legal system, arguably did just that.
Most of us, of course, are not U.S. Senators with a political point to make. If we want to write briefs that will be read and be persuasive, we need to attack the arguments, not the advocates or the members of the court.
3. Amicus briefs should not inject extrajudicial facts or junk science.
Finally, amicus briefs should not try to bring in facts not in the record, and in particular, should not introduce research that is not carefully vetted to ensure its accuracy. Amicus briefs that rely on social research data are popular, and are particularly susceptible to being weaponized when they distort that data. See Michael Rustad & Thomas Koenig,The Supreme Court and Junk Social Science: Selective Distortion in Amicus Briefs, 72 N.C. L. Rev. 91(1993). As the authors of this paper note, amicus briefs purporting to present statistical fact to the court create fiction, instead, when they fail to follow the proper methodologies or permit analytical gaps that would have been contested and weeded-out if presented at trial. Without a formal process for determining the merit of such statistical analysis when it is presented on appeal, an amicus who files such a brief must be extremely cautious that they do so appropriately.
Amicus briefs that avoid these three traps can truly be helpful to the Court. They can be extremely inventive. But they should stay friendly to the court, if not the court's rulings.
Monday, August 19, 2019
Today is the first day of school at many law schools around the country, including the one where I teach. Those schools that haven’t started are likely to begin in the next few weeks. This time of year has me thinking about new beginnings and the rhythm of the academic year. While culturally there is a lot of talk of New Year’s resolutions, those of us on an academic calendar start our new year in August or September, with all the plans and hopes that accompany a fresh start--new students, new courses, new approaches to material.
As summer has wound down, I’ve been reading First, Evan Thomas’s fascinating biography of Sandra Day O’Connor. In the same way that schools operate on their calendar, the Supreme Court operates on the rhythm of its Terms, which begin every year on the first Monday in October. The Court recesses at the end of June, then works on the petitions and other business to prepare for the next October Term.
Justice O’Connor was sworn in just a couple of weeks before the Term began in 1981, and it seems as that first Monday in October approached, she was anticipating what the new Term would hold. For example, Thomas reports that in 1986 upon the appointment of Justice Scalia that “O’Connor had welcomed his high intelligence and verve. . . Scalia, she believed, would be a tonic. ‘Nino Scalia will have a dramatic impact here,’ she wrote in her journal.”
As I start a new school year this August, Justice O’Connor’s example is on my mind. Her strength, will, and energy enabled her to be a trail-blazer, as highlighted in First. And she continued to start each October Term strongly for 25 years, even when dealing with challenges including breast cancer, diagnosed shortly before the 1988 October Term.
For those of you not on an academic or appellate term, do you have a way of creating fresh starts for yourself? Do you still look to the calendar to demarcate your own “terms”?
Any advice you’d like to share for starting strong, whether in academics or practice?
I like to make sure my office and inbox is organized at the start of a new semester, as piles tend to grow during the hectic pace of classes.
I hope everyone who is starting a new term soon has a great start!