Appellate Advocacy Blog

Personal Jurisdiction – Messy Jurisprudence that May Be in Even Greater Flux

            Rex Lee, the late Reagan-era solicitor general and president of  Brigham Young University, once wrote that the Supreme Court’s “net contribution” to a “cohesive body of law” applying the First Amendment’s  Religion Clauses “has been zero” and added that “some would say that it has been less than zero.”[1] Personal jurisdiction, a subject of intense interest in the Court over the past dozen years, has suffered a similar fate with the Court making a hash of it.

            If there is one case lawyers remember from their civil procedure class, it is Int'l Shoe Co. v. Washington,[2] which established that due process only required that a defendant have “certain minimum contacts” of a continuous and systematic nature with a jurisdiction sufficient “that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’”[3] Int’l Shoe overturned Pennoyer v. Neff,[4] which adhered to a rigid territorial limitation that was somehow derived from the Due Process Clause. With the demise of Pennoyer, states began to enact long-arm statutes that enabled them to exercise authority over out-of-state defendants who had caused injury and damage within the state. About a decade after Int’l Shoe, the Court speculated that the law would continue to expand “the permissible scope of state jurisdiction over foreign corporations and other nonresidents,” because of the “increasing nationalization of commerce” and the ease of “modern transportation and communication” to make it “less burdensome for a party sued to defend himself in a State where he engages in economic activity.”[5]

            Yet, more recently, the Court has adopted a more restrictive approach to personal jurisdiction than Int’l Shoe suggests, even as it continues to identify that opinion as the “canonical decision” on personal jurisdiction.[6] Its recent cases have reduced Int’l Shoe’s flexibility into a set of mechanical, bright-line rules that it often claims divides personal jurisdiction into only two forms: “specific” and “general.”[7]

Specific jurisdiction exists when the activity or occurrence that is the subject of the lawsuit takes place in forum State.[8] A defective product is sold or shipped there. Thus, in Bristol-Myers, the Court permitted California consumers of the allegedly defective drug to sue the out-of-state manufacturer for their injuries, but held that non-California plaintiffs alleging the same injuries could not sue in that state, but had to initiate separate lawsuits in their home states, even if the allegations were identical. Those who also sued the distribution company in California had to split their lawsuits, because the distributor was California-based and subject to general jurisdiction in California. As Justice Sotomayor pointed out in dissent, the decision was a substantial “contraction of specific jurisdiction by holding that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.”[9] Moreover, she points out that the consequences of the decision is to prevent plaintiffs from banding together from different states to bring a single action based on a defendant's nationwide course of conduct, unless they sue in the defendant’s home state, where the action would likely have to be subdivided into claims for each plaintiff’s home state.[10] Yet, where the defendants are from different states so that no one state will be able to entertain the mass action, there will have to be a multiplicity of lawsuits,[11] including potentially separate lawsuits against each defendant, creating a potential “empty-chair” defense.  

General jurisdiction provides all-purpose authority over a defendant when it is “essentially at home” in the forum because it is either incorporated or has its headquarters there.[12] Under the general jurisdiction rubric, illogically, a corporation can have a broad corporate campus and substantial operations in a state, but not be subject to general jurisdiction there. Yet, incorporation in, say, Delaware, where its only presence is a post office box, is sufficient to subject the corporation to suit in that state because it is deemed essentially at home even if not actually present there.

Yet, specific and general are not the only types of personal jurisdiction that exist, even though the Court has said as much. For example, the Court has also recognized “tag” jurisdiction, which subjects an individual from outside the state to jurisdiction when served in the state.[13] Although being subject to personal jurisdiction when caught passing through a state could pose a hardship to an individual, no similar concept permits jurisdiction over a corporation that maintains a continuous and substantial presence in the state. A second form of personal jurisdiction is consent jurisdiction, where the defendant either agrees to jurisdiction or does not fight it.[14] The Supreme Court has previously approved state statutes that require registration and consent to personal jurisdiction as the price of doing business in a state.[15] Yet, on November 8 of last year, the Court heard argument on whether the Pennsylvania consent statute it upheld more than a century ago violated due process in Mallory v. Norfolk Southern Ry. Co., No. 21-1168, where a decision is expected by June.

And there are congressional grants of personal jurisdiction as well.[16] Yet, a 12-5 en banc decision by the Fifth Circuit last year, for which certiorari was denied this past week, required the use of Rule 4(k)(2), promulgated as a federal long-arm statute at the suggestion of the U.S. Supreme Court to reach foreign defendants, still had to satisfy the general jurisdiction test, so that it could never be used for foreign or domestic defendants. [17] Foreign defendants cannot be “at home” in the U.S. And, if general jurisdiction applies, Rule 4(k)(2) is unnecessary The decision effectively renders the rule unconstitutional as a matter of due process.

Is there a way out of the current messy jurisprudence that has developed recently? Justice Gorsuch, joined by Justice Thomas, has suggested that the current personal-injury regime is looking “quaint” and “a little battered” “when corporations with global reach often have massive operations spread across multiple States,” rather than one or two homes.[18] He added, “[m]aybe, too, International Shoe just doesn’t work quite as well as it once did.”[19] So, while the past dozen years have seen a revolution in personal jurisdiction as the Court embarked on a more restrict approach, leavened a bit by its 2021 decision in Ford, another potentially abrupt change may be in the making. Indeed, originalist scholars contend that due process puts no limitation on federal personal jurisdiction.[20] If the Court, which has taken an originalist approach to a number of constitutional issues, goes down that path, they could untangle the ball they created for personal jurisdiction. Could they also replace it with nothing?

 

[1] Rex. E. Lee, The Religion Clauses: Problems and Prospects, 1986 B.Y.U. L. Rev. 337, 338 (1986).

[2] 326 U.S. 310 (1945).

[3] Id. at 316.

[4] 95 U.S. 714 (1877).

[5] McGee v. Int’l Life Ins. Co., 355 U.S. 220, 222-23 (1957).

[6] Ford Motor Co. v. Montana Eighth Jud. Dist. Ct., 141 S. Ct. 1017, 1024 (2021).

[7] Bristol-Myers Squibb Co. v. Superior Ct. of California, San Francisco Cnty., 582 U.S. 255, 262 (2017).

[8] Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).

[9] Bristol-Myers., 582 U.S. at 269 (Sotomayor, J., dissenting).

[10] Id. at 277 (Sotomayor, J., dissenting).

[11] Id. at 278 (Sotomayor, J., dissenting).

[12] Goodyear, 564 U.S. at 919.

[13] Burnham v. Sup. Ct., 495 U.S. 604, 619 (1990) (plurality op.).

[14] Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982).

[15] See, e.g., Pennsylvania Fire Ins. Co. v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917); Ex parte Schollenberger, 96 U.S. 369, 376-77 (1877).

[16] See, e.g., D'Arcy v. Ketchum, 52 U.S. (11 How.) 165, 176 (1850).

[17] Douglass v. Nippon Yusen Kabushiki Kaisha, 46 F.4th 226 (5th Cir. 2022), cert. denied, No. 22-562, 2023 WL 2563319 (U.S. Mar. 20, 2023). The author was counsel for Petitioners in the Fifth Circuit and in the Supreme Court.

[18] Ford, 141 S. Ct. 1017, 1034 (2021) (Gorsuch, J., concurring).

[19] Id. at 1038 (Gorsuch, J., concurring).

[20] See, e.g., Max Crema & Lawrence B. Solum, The Original Meaning of “Due Process of Law” in the Fifth Amendment, 108 Va. L. Rev. 447, 467 (2022); Lawrence B. Solum & Max Crema, Originalism and Personal Jurisdiction: Several Questions and a Few Answers, 73 Ala. L. Rev. 483, 524 (2022); and Stephen E. Sachs, The Unlimited Jurisdiction of the Federal Courts, 106 Va. L. Rev. 1703 (2020).

Appellate Advocacy Blog Weekly Roundup Friday, March 17, 2023

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

• West Virginia has asked the Supreme Court to vacate in an injunction in a transgender rights case, West Virginia v. B.P.J. The injunction bans a law that prohibits trans-identified boys from competing on female-only sports teams at the secondary and university level. If the Court reaches the merits, it may be the first case where the Court will determine whether the Constitution protects against anti-trans discrimination. See report from Vox.
  
  
• The United States Courts posted this News Release announcing that the Judiciary’s 2022 Annual Report and Statics is now available.
  
  
• The Supreme Court’s memorial for Justice Ruth Bader Ginsberg was held today, Friday, March 17. See a report from the Associated Press.

Appellate Court Opinions and News

• The Fifth Circuit has refused to recognize the state-created danger doctrine, which is an exception to the general rule that the government has no duty to protect against privately caused harm. Although recognizing that a majority of federal circuits recognize the doctrine and noting that the “facts giving rise to [the] lawsuit are unquestionable horrific,” the Fifth Circuit found that the state-created danger doctrine was not clearly established in the Fifth circuit and cited the recent Dobbs opinion as a basis for not expanding substantive due process rights without careful consideration, including considering whether the right is “deeply rooted in the Nation’s history and tradition.” Thus, the court ruled that a school enjoyed qualified immunity from liability regarding the repeated sexual assault of a severely disabled public-school student on school grounds. In the case, school officials not only knew in advance of the first assault that the victim required supervision at all times and that her attacker had violent tendencies but also knew about the prior attack on the victim by the same attacker before again allowing victim and her attacker to be unsupervised. A dissent posing as a concurrence urged the Fifth Circuit to hear the case en banc and adopt the doctrine, stating “it is well past time for this circuit to be dragged screaming into the 21st century.” See the ruling and reports in The Volokh Conspiracy, Law.com, Courthouse News Service, and Bloomberg (subscription required).

• The Eleventh Circuit upheld a Florida law that bans people under 21 from owning a gun. In upholding the ban, the court applied the 2022 Bruen framework that requires the government to demonstrate that the regulation “is consistent with this Nation’s historical tradition of firearm regulation” and cited more than a dozen state law barring people under 21 from buying guns. See the ruling and reports from Reuters and CBS News.

• The Ninth Circuit refused to rehear the November 2022 case that ruled that the First Amendment protected an Oregon beauty pageant’s “natural born female” eligibility requirement and allowed the pageant to ban a transgender contestant. See the November 2022 ruling and the order denying rehearing.  

State Court Opinions and News

• The North Dakota Supreme Court upheld a lower court decisions that blocked an abortion ban and held that the state constitution protects the right to “enjoy and defend life and a right to pursue and obtain safety,” including the right to an abortion to preserve life or health. See the ruling and report from The New York Times.

Appellate Advocacy Blog Weekly Roundup Friday, February 17, 2023

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

• Adam Feldman at Empirical SCOTUS posted an historical look at the timing of Supreme Court decisions. The post compares the pacing of this year’s releases to past pacing.
  
  
• On Friday, March 17, the Supreme Court will honor the memory of Justice Ruth Bader Ginsberg. The Court will hold a meeting of the Supreme Court’s Bar, followed by a special sitting of the Court. The bar meeting will be held at 1:45 p.m. in the Upper Great Hall and will feature several notable speakers, including Honorable Elizabeth B. Prelogar, Solicitor General of the United States. The meeting will be live-streamed on the Court’s website: www.supremecourt.gov. See the Supreme Court press release.
  
  
• After the filing of the Solicitor General’s brief announcing that the end of the public health emergency will moot the case, the Supreme Court has cancelled oral argument in the challenge to the Biden administration’s attempts to end Title 42 (see previous coverage from this blog). Title 42 is the pandemic-era immigration measure that has allowed migrants, even those who might otherwise qualify for asylum, to be quickly expelled at the southern border. Last year, when Title 42 was challenged, the Federal District Court set a deadline for the end of the measure, finding that the measure did not advance public health but did endanger immigrants. When the Biden administration did not appeal that ruling, 19 states sought intervention to defend Title 42 and asked to stay the deadline. The Court of Appeals for DC denied the stay finding that the Petitioner States had not timely intervened. On appeal of that decision, the Supreme Court agreed to hear only the question of whether the Petitioner States had properly intervened and granted a stay to maintain the status quo. Oral argument was set for March. The Solicitor General’s brief states that the expected end to the public health emergency will moot the case: “ the end of the public health emergency will (among other consequences) terminate the Title 42 orders and moot [petitioners’ attempt to intervene].” Today, the Petitioner States filed a reply arguing that the end to the public health emergency does not moot the issue presented by the case: whether the petitioner states properly intervened. See reports from CBSNews, Politico, and CNBC.

Appellate Court Opinions and News

• The Third Circuit ruled that Johnson & Johnson was not in financial distress when it filed for bankruptcy, and the court rejected J&J’s attempt to move the close to 40,000 talc lawsuits against it to bankruptcy court. The ruling creates a new financial distress standard and seems to undercut the use of what’s known as the Texas two-step bankruptcy strategy. To avoid much of the financial liability it faces from the talc-cancer suits, J&J employed the Texas two-step: J&J created a subsidiary and transferred liability for the talc-related claims to the subsidiary; then the subsidiary filed for Chapter 11 bankruptcy, claiming insolvency. If permitted, the strategy could have allowed J&J to avoid much of the financial liability it faced from the mass tort talc cases. The court ruled that J&J’s agreement to fund the subsidiary’s liabilities made J&J the subsidiary’s ultimate financial safeguard and that was “not unlike an ATM disguised as a contract.” See a 2022 WBUR discussion of the Texas two-step strategy and see the decision and reports from The Wall Street Journal, Reuters, Bloomberg, and NBCNews.
  
  
• The Fifth Circuit found unconstitutional a decades-old law barring domestic abusers from possessing firearms and ruled that those convicted of domestic abuse have an unrestrainable right to bear arms. The decision stated that the statute contradicts an “historical tradition” allowing access to guns. The court determined that the statute gives too much power to Congress to determine who qualifies as “law-abiding, responsible citizens.” The opinion seems to compare domestic abuse to crimes like speeding, political non-conformity, and failing to recycle. The ruling earned a rebuke from US Attorney General Merrick Garland, who said: “Whether analyzed through the lens of Supreme Court precedent, or of the text, history, and tradition of the Second Amendment, that statute is constitutional. … Accordingly, the department will seek further review of the Fifth Circuit’s contrary decision.” See the ruling and reports from Bloomberg, CNN, and The Hill.

Other News

• The Senate confirmed Cindy Chung for the Pennsylvania federal appeals court; she will be the first Asian American to sit on the Third Circuit. See reports from Reuters and Bloomberg.

Rethinking First Amendment Jurisprudence

The First Amendment to the United States Constitution protects the rights to freedom of speech and religion, which are essential to liberty and an informed citizenry. Indeed, the original purpose of the First Amendment was, among other things, to create a “marketplace of ideas” in which diverse opinions on matters of public concern, however unpopular, distasteful, or offensive, are rightfully protected. And the United States Supreme Court’s First Amendment jurisprudence reflects steadfast adherence to these principles, with the Court holding in numerous cases that a robust and expansive right to free speech is critical to ensuring liberty, autonomy, and a society where diverse viewpoints inform citizens’ views on various political and social issues.

But shouldn’t there be a limit?

Aren’t there some types of expression that are so vile, so valueless, and so vituperative that neither the Constitution nor the courts should afford them protection?

The answer to both questions is yes.

Think about it:

• Should people be permitted to hurl racist slurs at minorities? No.
• Should they be allowed to stand outside the funeral of a deceased gay soldier who died in the Iraq War with signs that say, “God Hates Fags?” and “Thank God for 9/11?” No.
• Should a newspaper have the freedom to publish a satirical depiction of a famous evangelical minister having sex with his mother in an outhouse? No.
• Should people be allowed to depict horrific acts of animal cruelty? No.
• Should wealthy individuals be permitted to donate millions to political candidates knowing that such donations will give them unfair influence in and access to the political process? No.
• Should Nazi groups and the KKK be allowed to march on Main Street spewing antisemitism and racism? No.
• Should people be allowed to wear t-shirts with a symbol of a Nazi swastika? No.
• Should pro-life groups be permitted to march with signs depicting dismembered fetuses? No.

Such speech should be banned everywhere and in any circumstance for three reasons.

First, speech such as that mentioned above has absolutely no value. It contributes nothing whatsoever to the “marketplace of ideas,” an informed citizenry, or a functioning democracy. And neither the text nor the original purpose of the First Amendment supports allowing individuals to express utterly valueless speech when it is expressed for the purpose of demeaning or traumatizing others, including vulnerable and marginalized groups.

Second, such speech causes substantial and often lasting harm. Make no mistake: speech can and does traumatize individuals, often causing severe emotional distress and other psychological injuries. Think about it: how would you feel if, as a minority, someone hurled a racist slur at you? How would you feel, as a person of Jewish faith whose great-grandparents died in the Holocaust, if you had to tolerate people marching with Nazi swastikas? How would you feel if, as a homosexual, someone called you a fag? To ask the question is to know the answer. Such speech serves no public purpose whatsoever.

This is not to say, of course, that offensive, distasteful, and unpopular speech should be restricted in any manner whatsoever.  Indeed, such speech may and often does cause emotional distress. It is to say, however, that there is a limit. When speech has no value whatsoever and is intended to – and does – traumatize others, it should enable individuals to sue for the resulting emotional harm.

Some may argue that limiting such speech will empower the government to enact content-based restrictions on speech with which it disagrees. This slippery slope argument is without merit. First, the Supreme Court has already recognized limits on free speech, such as in Miller v. California, when it held that obscene speech that appeals to sexual interests receives no First Amendment protection, and in Brandenburg v. Ohio, where the Court held that words intended to incite violence lacked First Amendment protection.[1] Second, the solution to this problem is obvious: enact a statute that delineates with specificity the precise words or expressions that are prohibited. In so doing, the limits on speech – which admittedly should be narrow – will be unambiguous. In Germany, for example, it is a crime to publicly deny the Holocaust – and for good reason.

Additionally, some may argue that the standards used to determine what speech should be limited will be invariably subjective and will thus lead to arbitrary and unconstitutional restrictions on speech. But this argument misses the constitutional mark. Many, if not most, constitutional provisions require subjective value judgments, such as whether a punishment is cruel and unusual under the Eighth Amendment, whether a search is unreasonable under the Fourth Amendment, and whether counsel is ineffective under the Sixth Amendment. Moreover, banning the type of speech mentioned above is hardly subjective. Any reasonable person with a conscience would agree that this speech has no value and inflicts severe injury on its targets.

The United States Supreme Court, however, is reticent to support any limits on speech other than sexual obscenity and fighting words. In Hustler Magazine, Inc. v. Falwell, for example, the Court held that the First Amendment protected a depiction of the Reverend Jerry Falwell having sex with his mother in an outhouse.[2] In Snyder v. Phelps, the Court held that the First Amendment protected members of the Westboro Baptist Church who held signs stating “God  Hates Fags” and “Thank God for 9/11” outside the funeral of a deceased military veteran.[3]

These decisions were wrong.

The notion of allowing individuals to express offensive, distasteful, and unpopular speech should not preclude reasonable limits on valueless speech that cause severe emotional harm. It’s one thing, for example, to say that homosexuality is a sin. It’s quite another to call someone a fag. It’s one thing to say that abortion is immoral. It’s quite another to shove pictures of dismembered fetuses in the faces of women trying to access abortion services. In each example, the former should be protected, and the latter should not. The distinction is predicated on value and injury.

Ultimately, a society that values liberty, autonomy, and democracy need not tolerate valueless speech that contributes nothing to public discourse, and that marginalizes others, causes others to commit suicide, or humiliates others in a manner that causes lasting harm.

If you disagree, let’s see how you feel when, if you are gay, another person shoves a sign in your face that says, “God Hates Fags” or, if you are Jewish, a person shoves a sign in your face that says, “The Holocaust Never Happened.” You know exactly how you’d feel. That is the point – and the problem. And it’s a problem that needs to be solved – now.

 

[1] 413 U.S. 15 (1973); 395 U.S. 444 (1969).

[2] 485 U.S. 46 (1988).

[3] 562 U.S. 443 (2011).

A Call for Law Over Politics

In the novel Guy Mannering, Sir Walter Scott wrote that a “lawyer without history or literature is a mechanic, a mere working mason; if he possesses some knowledge of these, he may venture to call himself an architect.” As lawyers and especially as appellate advocates, we aspire to creating an edifice where the rule of law governs and not simply the politics of the day. We seek to design the law to withstand political winds while capable of change though remaining true to rules and standards that sensibly apply regardless of the ascendant ideologies.

It is not an easy task, and we are not always very good at perpetuating that approach. Sometimes, our inability to do so leads to embarrassment and harm to the rule of law. Other times, it leads to revolutionary and welcome change. Rarely, though, do we realize which outcome is most likely going to result until significantly later as we look back retrospectively.

Today, our courts have lost enormous public confidence and respect, traits that are essential to their salutary operation. We have seen the rhetoric of politics in the place of timeless legal principles populate judicial opinions — and appellate briefing at levels and rates that mark a departure from past instances of the same developments.

New evidence of the escalating trend may have emerged from the North Carolina Supreme Court. The new year saw that court flip from a 4-3 Democratic majority to a 5-2 Republican majority (use of party labels is perhaps unsettling but unavoidable in this instance). The new majority has granted petitions for rehearing in two election law cases: one involving redistricting and another on a voter identification law.

Reconsideration of this type is normally used when a court made its decision under a misapprehension of the record or some other error that demands correction. It is an extremely rare event. Here, it is clear that the law is unchanged, and there are no evidentiary issues. The only thing that changed was the membership of the court — and that is a troubling basis for reconsideration.

            As Justice Anita Earl put it in dissent from the grant of reconsideration:

it took this Court just one month to send a smoke signal to the public that our decisions are        fleeting, and our precedent is only as enduring as the terms of the justices who sit on the bench. The majority has cloaked its power grab with a thin veil of mischaracterized legal authorities. I write to make clear that the emperor has no clothes.

Hall v. Harper, No. 413PA21 (Feb. 3, 2023) (Earl, J., dissenting).

I write this post in a bit of a state of shock, simply because of how blatant and clear the coming reversal is. If law is not to become little more than a yoyo or roller coaster ride, it cannot simply become the spoils of political warfare. As much as there are precedents that I hope will be overturned, and there are past examples of judicial composition driving changes in the law, this precipitous reversal of field renders the law less the work of architects and more a political game where appellate advocacy becomes less relevant. Rather than the rule of law, the rule of seat warmers prevails.

 

 

 

Concrete Economics on the Supreme Court

The Supreme Court has recently offered strikingly similar answers to two seemingly disparate questions. The first concerns Article III standing to bring a case in federal court: What does it mean to show a “concrete and particularized injury in fact” that would, in part, support standing? The second concerns precedent: What does it mean for citizens to “rely” on precedents so that those prior decisions deserve stare decisis protection? The Court’s answers to each of these questions uses similar reasoning to amplify economic interests that are easy to identify and measure. Taken together, these seemingly unrelated jurisprudential developments also have an important real-world effect: they help ensure that our legal system provides the greatest level of protection possible for clear, monetary concerns, relegating more intangible individual rights to a second-class status.

Start with the Courts recent jurisprudence on Article III standing, which includes, as one of its elements, a requirement that plaintiff’s suffer a concrete and particularized injury in fact.[1] Recent Supreme Court analyses have heightened this concreteness hurdle to enter federal courts. In Spokeo v. Robins, the Court suggested that Congress cannot create concrete injuries by fiat simply by including a statutory damages remedy in legislation.[2] Five years later in Transunion LLC v. Ramirez, the Court again noted that an injury does not become concrete simply because Congress creates a statutory cause of action to redress it—although such Congressional action might be instructive.[3] The Court emphasized that it would only resolve “‘a real controversy with real impact on real persons.’”[4] In effect, these decisions emphasize the need for plaintiffs to come to the courthouse with an injury that can easily be measured, typically in real dollars and cents, before filing suit.

Meanwhile, as I have argued, the Court’s treatment of stare decisis in the landmark abortion rights case Dobbs v. Jackson Women’s Health Organization used similar language to signal the Justice’s willingness to overturn a broader swath of the Court’s prior decisions. According to Justice Alito’s majority opinion in Dobbs,  stare decisis only protects reliance interests that arise “where advance planning of great precision is most obviously a necessity”—not reliance interests that come from the kind of “unplanned activity” that may lead to an abortion.[5] Alito also claimed that stare decisis protects only “very concrete reliance interests, like those that develop in ‘cases involving property and contract rights.’”[6] Courts simply cannot measure, and thus cannot protect, more intangible forms of reliance that involve the organization of intimate relationships and decisions about a woman’s position in her family and community.[7] Though this language appears content-neutral, Alito's approach to stare decisis significantly weakens precedents that protect intangible individual rights. Few citizens make contractual arrangements or economic plans based upon such precedents, and thus those precedents seems less viable in the long term.

Taken together, these trends prioritize economic interests over a number of other important interests that the legal system previously seemed to protect. Many social interests or individual rights are not the subject of economic agreements. And under the Court’s approach to both standing and stare decisis, those rights are less worthy of legal protection, on that basis alone. Put another way, if a legal interest is difficult to quantify economically, it is hardly a legal interest at all.

Without garnering much public notice, these joint emphases on concreteness create new barriers for the protection of individual rights in federal courts. They are perhaps an even greater threat to individual rights than a decision that forthrightly admits it is designed to curb those rights.

 

[1] See, e.g., Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 461, 472 (1982); Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

[2] 578 U.S. 330, 339-40 (2016); Richard L. Heppner Jr., Statutory Damages and Standing After Spokeo v. Robins, 9 ConLawNOW 125, 125 (2018).

[3] 141 S. Ct. 2190, 2204-05 (2021).

[4] Id. at 2203 (quoting Am. Legion v. Am. Humanist Ass’n, 139 S. Ct. 2067, 2103 (2019) (Gorsuch, J., concurring)).

[5] 142 S. Ct. at  2272, 2276.

[6] Id.

[7] Id. at 2272, 2277.

What is Your Best Case?

“What is your best case?”

That’s a question that many an appellate judge asks during oral argument.

Sometimes, there is an obvious answer: Smith v. Jones holds that the very inaction of the defendant in this case constitutes a breach of duty that warrants liability. Or, Johnson v. Williams holds that  it is not a violation of the statute to engage in the conduct the plaintiff alleges that my client undertook.

Other times, however, the caselaw might appear ambiguous, even if it is not. In one case I argued, Justice Breyer asked first my opponent and then me for our best case on whether the underlying state law was well-established and regularly applied. My opponent cited a case that stated the law somewhat loosely, which allowed him to claim that the law was not clear and thus not established. When I stood at the podium, I mentioned that my brief cited 39 cases over a 78-year period, but that I was happy to rely on one case that both sides cited because I believed it actually favored my argument.

The choice proved a good one. Justice Breyer had also flagged the case and had the opinion in front of him, no doubt because both sides had relied upon it. He asked me to explain a sentence that he read, which he said seemed to cut against my stance. It was the passage that my opponent had also cited in his brief, so I was very familiar with it. I responded that the sentence cited also had a dependent clause that the justice had not read aloud and that the qualification it made changed the entire meaning of the sentence. Justice Breyer chuckled and admitted that he agreed. Some three-and-a-half months later, we prevailed.

Certainly, that type of preparation and anticipation is needed when advocates are challenged by potentially clashing precedent. But what happens when there are no directly on-point cases and your argument is constructed from the logical implications of multiple cases that build upon one another? That is, no single case stands for the proposition you are advocating, but that several separate precedential propositions lead inexorably to your result?

It is important to make clear that a single case does not answer the question when that’s the case. Still, you must explain that the answer to the question presented becomes clear from looking at several cases. Precedent number one holds that the relevant constitutional test is a historical one. Precedent number two demonstrates that common practices prior to 1791, the year the Bill of Rights was ratified, satisfy historic conceptions of due process. Precedent number three is a historic practice indistinguishable from the issue before the court. Therefore, these precedents establish a roadmap that should demonstrate that the practice now before the court is consistent with due process. The deductive reasoning used to tie the precedents into a coherent legal theory becomes the product of multiple precedents and makes the best-case inquiry too simplistic to resolve the dispute.

What if, instead, the mandatory historical inquiry works against your position? It then becomes necessary to demonstrate that our constitutional conceptions are not frozen in time, but establish larger principles that can applied to situations unimagined at the time. Thus, we apply the concept of free speech to radio, television, and the Internet, even if the authors of the First Amendment could not have imagined these mediums. A best case, then, might consist of cases where a court has imagined the principle and applied it analogically.

In the end, a best case may exist – or it may a best case may actually be a series of cases.

Appellate Advocacy Blog Weekly Roundup Friday, January 20, 2023

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 has issued a statement about the leaked draft of the controversial abortion decision in Dobbs v. Jackson Women’s Health Org., stating that it has been unable to identify the source of the leak. The Court’s statement included the report from the Marshal of the Supreme Court, who has been tasked with investigating the leak. The statement also included a statement of Michael Chertoff, former Secretary of Homeland Security, Judge of the U. S. Court of Appeals for the Third Circuit, Assistant Attorney General for the Criminal Division of the U. S. Department of Justice, and U. S. Attorney for the District of New Jersey.  The Court asked Mr. Chertoff to assess the Marshall’s investigation. See a sampling of reports on the statement and the status of the investigation: The Wall Street Journal, The Washington Post, The New York Times, CNN, SCOTUSBlog, Associated Press

• In Supreme Court news this week is the potential impact of cases that consider the rules regulating online speech and social network platforms. One case, Gonzalez v. Google, to be heard next month, will determine whether social media platforms may be sued notwithstanding a 1996 law that shields online companies from liability for users’ posts. See an October 2022 report from The New York Times. This week, The New York Times reported that the Court will discuss whether to consider two other online speech cases; these cases challenge state laws that bar online platforms from removing political content, one in Florida and one in Texas. This week, the ACLU and the Electronic Frontier Foundation (EFF) filed amicus briefs in Gonzalez, warning of the potential for harm to users’ free speech from changes in the power and responsibility of social networks. 

• The Court agreed to hear a case asking it to strengthen protections for workers seeking accommodation for religious beliefs and practices. The petitioner, an evangelical Christian, sued after he was forced to resign from the US Postal Service when his job began to require working on Sunday, his Sabbath. The petitioner lost in the federal district court and in the Third Circuit. Federal law requires that an employer permit the religious observance of workers unless doing so would impose an “undue hardship.” Courts currently rely on the rule established by a 1977 Supreme Court case, Trans World Airlines v. Hardison, which found that, to qualify as being subject to undue hardship, an employer need show only a “more than a de minimis cost.” See the case docket, a report from The Washington Post, and a Reuters report at the time of the appeal. Vox and Slate posted essays on the topic as well.

Appellate Court Opinions and News

• President Biden released the first slate of judicial nominees for 2023 this week. See the White House statement and a report from CNN.

• The Third Circuit has proposed a change to its local rules that would move its filing deadline from midnight to 5 pm in an effort to improve practitioners’ work life balance. The proposal has generated some debate among attorneys in the circuit. See the proposed amendment and reports from Law.com and Reuters. See also a poll created by Howard Bashman (creator of HowAppealing) asking for comment on whether the proposed change would actually improve work-life balance.

Other News

• The Federalist Society posted recordings of some the programs from its January 5-6 faculty conference. Recorded topics include “Politicization of the Economy,” “Dobbs & the Rule of Law,” “Election Law in Flux,” and a debate titled “Resolved: The Major Questions Doctrine Has No Place in Statutory Interpretation.

• Here's an informative and sometimes amusing thread on what signals a good brief. Writers take note!
  Joe Fore posed the following question, which generated a short thread with the kind of advice I give students and practitioners every day:

What's something in #legalwriting that's the *opposite* of a Brown M&M? Is there a small detail--usage, style, formatting--that if you see/saw it in a piece of writing, immediately signals that it's going to be good?

Appellate Advocacy Blog Weekly Roundup Friday, January 13

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.

U.S. Supreme Court News:

• The Court has yet to release any opinions from cases argued this term.  Although the Court is four months into its current term, it has provided a record-setting silence with regard to opinions in argued cases. Bloomberg discussed the delay in opinions and compared it to prior terms HERE.
• The Court this week denied an application to vacate a stay in a case involving a New York law that restricts the possession of firearms in specific public locations.  The trial court issued a preliminary injunction in the case, and the Second Circuit Court of Appeals issued a stay that kept the law in effect pending litigation on the merits of the challenge to the law.  The Court's order, issued without opinion and without dissent, allows the stay to remain (and thus, the law) to remain in effect.  The order is HERE.
• Senate Democrats are poised to push for new ethical standards for the Court after the Court faced increased scrutiny over the last year concerning such matters as financial interest in pending cases, the leak of draft opinions, and other apparent conflicts of interest.  More can be found HERE.
• A helpful summary of pending criminal law and procedure cases before the Court was posted by Joel Johnson at the ABA this week.  You can review the summary HERE.

Federal Appellate Court News:

• The United States Court of Appeals for the Federal Circuit heard arguments this week in a case where Apple, Google, and Intel are seeking to revive challenges to a U.S. Patent and Trademark Office policy about contesting the validity of patents before administrative judges.  More can be found HERE.
• A federal appeals court in D.C. heard arguments this week in a case challenging portions of the Fight Online Sex Trafficking Act and Stop Enabling Sex Traffickers Act (FOSTA-SESTA), a 2018 law passed to crack down on online advertising viewed as facilitating prostitution.  The appellate court panel expressed skepticism about the constitutionality of language in FOSTA-SESTA that makes it a crime to operate a computer service with the intent to promote prostitution.  More can be found HERE.

State Appellate Court News:

• The New Mexico Supreme Court heard arguments this week in a venue dispute in a lawsuit concerning whether wind leases overlapping with grazing leases can impact a rancher's ability to raise cattle on state trust land in New Mexico.  Right now the question is really about where the arguments over the leases will take place, but the substantive issues to be addressed down the road will determine whether state law and lease contracts may allow for wind energy to be developed on land that ranchers are already leasing.  More can be found HERE.

Appellate Practice Tips:

• Three Harvard Law advocates recently shared their tips and tales of their times arguing before the United States Supreme Court in an article at Harvard Law Today.  The article includes recollections from Paul Clement, former U.S. Solicitor General and partner at Clement & Murphy in D.C.; Jessica Ring Amunson, partner at Jenner & Block in D.C.; and Deepak Gupta, lecturer at Harvard and founding principal of Gupta Wessler PLLC.  The article can be found HERE.

Appellate Jobs:

• The Illinois Appellate Court, Third District, is hiring an appellate court law clerk.  Details can be found HERE.

Who Serves on the Bench Matters

As lawyers and appellate advocates, we trust that the rule of law will prevail – that there will be consequences for breaching contracts, for negligence that injures another person, and for violating constitutionally guaranteed rights. We trust that judges will  be impartial and apply the law within a range of accepted conclusions that may not always be right but with an error rate that maintains confidence in the justice system. We believe that the law should not differ because of who serves on the bench because all who do must adhere to the rule of law. And yet, we know that who serves often will make all the difference.

We engage in ideologically tinged battles over who serves on the bench, regardless of whether the path to a judgeship is through appointment or election. Appellate advocates tailor their arguments to the judges who hear a case, combing their past opinions and other writings for clues that might trigger a favorable response for their client or issue. Some judges have expertise on the subject of the appeal, while others do not. Some have staked out positions on the appellate issue that makes the appellate task easier or even insuperable. Some utilize a methodology or a hierarchy of interests that signal the approach a wise advocate should take. A one-time dissenting view can now fit within the mainstream of legal thinking so that it provides a new handle on addressing an issue. That is why advocates are well-advised to know their audiences.

Court memberships shift, and the likely result from a court can shift with it. In an end-of-the-year decision from the Ohio Supreme Court, the justices’ own awareness of that shift was on display. In full disclosure, I was the winning advocate in the case and had the opportunity to watch it play out. By virtue of the mandatory retirement requirements of the state, the chief justice was due to step down from the court on December 31. I argued the case, which challenged the constitutionality of a state statute both facially and as applied, in late March. The decision, striking the law as applied, was written by the chief justice for a 4-3 majority and issued December 16. One dissenter appended a paragraph to the decision complaining of a departure from what he called the “regular and orderly internal rules of operation and practice,” because the majority insisted on issuing the decision so that the current court, rather than its successor, would rule on any motion for reconsideration.[1] He added his apology to the “citizens of Ohio that my individual dissent is not of the quality that I have come to deliver and that the public expects” because his “time on this case was aberrantly and improperly limited.”[2]

That paragraph became the focus of the motion for reconsideration filed just within the deadline on the evening of December 27. It seemed apparent that both the majority and the dissenter were well aware of the consequences of pushing reconsideration off to the new year and the new court. The majority sought to assure that a reconsideration motion would come before the same court that decided the case; the dissenter sought to push the case to the new term where he believed a different membership would reach a different result and his dissent could become the decision of the court.

Taking no chances, I filed my opposition to reconsideration within hours of the motion’s filing so awaiting opposition would not provide an excuse to delay a ruling. On December 29, reconsideration was denied.

The episode demonstrates what we know as advocates: who sits on the bench makes a difference. It also confirms another thing we know – judges are as acutely aware of that as anyone else.

 

[1] Brandt v. Pompa, 2022-Ohio-4525, ¶ 132 reconsideration denied, 2022-Ohio-4786 (Fisher, J., dissenting).

[2] Id.

Appellate Advocacy Blog Weekly Roundup Friday, January 6, 2023

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 New Year from The Weekly Roundup! 

US Supreme Court Opinions and News

• Justice Roberts’s 2022 Year-End Report on the Federal Judiciary was released on December 31, 2022. Find reviews and analysis of the report from The New York Times, The Washington Post, The Associated Press, Reuters, and Bloomberg.    
• In December, the Supreme Court announced that this year it will resume the tradition of announcing opinions from the bench. The practice has been suspended since the beginning of the pandemic. The last opinion delivered from the bench was Kansas v. Garcia, delivered March 3, 2020. Opinion announcements will not be livestreamed but will be recorded and available at the National Archives at the beginning of the next Term, which was the pre-pandemic tradition. See reports from The New York Times, CNN, SCOTUSBlog, and Bloomberg Law.
  
  
• This week, the Biden Administration filed a response in the case challenging its student loan forgiveness plan. The Court will hear two challenges: one by states arguing that the plan will harm companies that service the loans and the other by individuals arguing that the plan will harm them because they are excluded from the plan. The administration’s response argues that the challenging parties have failed to show the requisite harm to establish standing and that the administration is within its authority to implement the plan. Late last year, the Court issued an injunction blocking the administration from implementing the plan to forgive up to $20,000 per borrower. Oral argument is set for February 28, 2023. See reports from CNBC and The New York Times.
  
  
• The Court ruled that Title 42, the pandemic-era restrictions on migration along the southern border, must stay in effect pending a ruling. The decision overturns a lower court decision to remove a stay issued against the Biden administration’s attempt to lift Title 42 restrictions. The Court is set to hear argument only on the question of whether the 19 states could pursue their challenges. See reports from The New York Times and The Wall Street Journal.
  
  
• The Supreme Court is set to become the subject of a new primetime legal drama. See descriptions and discussion of the new ABC pilot, “Judgement,” from The Hollywood Reporter, Variety, and Deadline.

Appellate Court Opinions and News

• The Ninth Circuit ruled that wearing a MAGA hat is free speech. The plaintiff claimed that a school principle violated his first amendment rights by disciplining him for wearing the hat at a teacher-only training session. The court determined that wearing the hat had not caused actual disruption and that evidence that some faculty members were offended was not sufficient justification to infringe the plaintiff’s rights. The court ruled, however, that the plaintiff could not sue the school district for dismissing the harassment complaint. See the ruling and reports from Reuters and CBS News.
  
  
• The Eleventh Circuit upheld a Florida school board’s transgender bathroom policy that segregates bathrooms by sex. A transgender student challenged the policy because it discriminates against transgender students. The court ruled that the policy survives constitutional review because it has the legitimate objective of protecting students’ privacy and shielding their developing bodies from the opposite sex. The dissent recognizes that “[t]he bathroom policy categorically deprives transgender students of a benefit that is categorically provided to all cisgender students—the option to use the restroom matching one’s gender identity.” See the ruling and reports from Reuters and Bloomberg Law.

State Court Opinions and News

• The Oregon Supreme Court has ruled that the ban on non-unanimous jury verdicts applies retroactively to all convictions in Oregon. The April 2020 Supreme Court case, Ramos v. Louisiana, outlawed convictions based on divided verdicts but the Court declined to apply the ban retroactively, leaving that decision to the states. (See The Weekly Roundup’s coverage here and here.) With the Oregon ruling, hundreds of Oregon felony convictions became invalid. The Oregon court recognized that the policy of allowing non-unanimous verdicts was intended to minimize the voice of non-white jurors and that it “caused great harm to people of color” and “undermined the fundamental Sixth Amendment rights of all Oregonians.” See the ruling and a report from The Oregonian.

This week, a couple of state courts have contributed to the still developing national abortion landscape:

• The South Carolina Supreme Court struck SC’s 6-week abortion ban on state constitutional grounds, finding the that the “state constitutional right to privacy extends to a woman’s decision to have an abortion” and that the 6-week ban was an unreasonable invasion of privacy. See the ruling and reports from CNBC and The New York Times.
  
  
• Meanwhile, in Idaho, the state supreme court upheld Idaho’s near total abortion ban, finding that the Idaho constitution did not include a right to the procedure. Idaho has three abortion bans, one of which bans abortion from conception. See the ruling and reports from The New York Times and Politico.

Other Appellate News

• The Eleventh Circuit has held that “and” means “and” not “or” in an analysis of the First Step Act, a law giving offenders a “safety valve” that allowed them to escape certain mandatory minimum sentences. The “safety valve” applies only if certain conditions are met. The list of conditions is connected with the word “and,” which generally means that all conditions must be met. This interpretation significantly limits when an offender would be excluded from enjoying the “safety valve.” However, Florida prosecutors argued that, in this case, “and” meant “or.” The Eleventh Circuit disagreed, applying the common definition of “and.” For those of us who enjoy statutory interpretation and language analysis, the ruling is worth a read. See also reports from Georgia Public Broadcasting and The Atlanta Journal-Constitution.

Christmas and the Law

Thinking about a holiday-appropriate topic to write for Christmas, the false claims that there is a war on the holiday came to mind. Attempts to acknowledge the holiday but preserve the secular nature of a government that neither advances nor inhibits religion, gave us the two-reindeer rule. The “rule” comes from the 1984 case of Lynch v. Donnelly,[1] where the city of Pawtucket, Rhode Island, had long sponsored a display in a shopping district. That consisted of a Santa Claus house, a Christmas tree, a banner reading "Seasons Greetings," reindeer pulling a sleigh, and a creche.   

In rejecting a challenge to the display based on the Establishment Clause by a 5-4 vote, the Supreme Court held it to be a holiday display, rather than advocacy of a religious message. The Court treated the items featured as advancing the historical origins of the holiday and considered that to provide "legitimate secular purposes." The most religious item in the display, the creche, passively connected to the holiday “like a painting” in a government museum, the Court said. The nearby display of reindeer and a sleigh, it went on to say, were secular symbols that conveyed “a friendly community spirit of goodwill in keeping with the season.” Derisively, the ruling was dubbed the “two-reindeer” rule because, according to a predominant reading of the case, adding two reindeer to an otherwise religious display transformed it into something secular.

Interestingly, modern attitudes toward Christmas have changed substantially. In 1659, Massachusetts had a law called the “Penalty for Keeping Christmas,” that stated:

For preventing disorders arising in several places within this jurisdiction, by reason of some still observing such festivals as were superstitiously kept in other countries, to the great dishonor of God and offence of others, it is therefore ordered by this Court and the authority thereof, that whosoever shall be found observing any such day as Christmas or the like, either by forbearing of labor, feasting, or any other way, upon such accounts as aforesaid, every such person so offending shall pay for every such offence five shillings, as a fine to the country.[2]

The law reflected the thought that making this deeply religious day into a festival brought “great dishonor” to God and reflected Puritan attitudes about Christmas. Puritans believed that celebrating Christmas entailed wasteful activities and social excess that were both immoral and antithetical to Christian beliefs. Fourteen years before the Massachusetts law came into being, the English Parliament promulgated a “Directory for Public Worship” that treated so-called festival days, including Christmas, as periods of private contemplation and not celebration.[3] By 1677, English law flipped, and it became illegal for any ”person whatsoever to do or exercise any worldly labour, business or work of their ordinary callings” on Christmas Day.[4]

Recalling these transformations of attitudes in an appellate advocacy blog serves only to show that even deeply religiously held convictions can change, much as the law itself demonstrates a capacity to develop in sometimes unpredictable ways – and advocacy assumes a significant role in the law’s development.

Still, however you celebrate, enjoy the holiday, and I wish you a happy new year.

 

[1] Lynch v. Donnelly, 465 U.S. 668 (1984).

[2] https://tinyurl.com/58ebmd8x.

[3] https://tinyurl.com/t8e56e23.

[4] https://www.hcrlaw.com/blog/12-laws-of-christmas/.

Two Overlooked Tips for Writing Briefs and Arguing Cases

Experienced appellate advocates often tell others that the art of effective brief writing relies on a uniform set of tips, such as keeping sentences short, using topic sentences, and simplifying language. Sometimes, though, violating these precepts can prove effective, even though the advice offered is usually worth following.

Today, however, I want to focus on two key tips that, too often, are ignored: maintaining credibility and making no assumptions about the court’s knowledge of the law. It is critical that your rendition of the facts and the law are credible. In one case years ago, my opponent, a prominent appellate practitioner made a factual assertion that misstated the record. It was not a crucial fact, but it was used by the other side to demonstrate the insensibility of what the court below had done across the board so that he could claim the actual ruling in the case was similarly fanciful. In my reply brief, I dropped a footnote that showed the assertion was wrong with a citation to the record. Surprisingly, during oral argument, my opponent repeated his misrepresentation of the record from his brief. As I jotted down a note to remember to debunk the claim when I stood up, one of the judges eviscerated him for the misstatement. He never recovered from that during the remainder of his argument. To me, the rebuttal was all the stronger because the judge made the point, rather than me. Misrepresenting the record can destroy credibility on other issues, just as he had hoped to harm the credibility of the decision below by making a point that turned out to be unanchored by the evidence.

A similar experience occurred in another case, although this time it concerned the state of the law. My opponent sought to make a seemingly logical argument about why a federal district court should have denied a remand motion after removal from state court. He relied upon support for his position from a nonbinding letter from the general counsel of a federal agency. What he failed to explain, though, was how his position remained credible after three other federal circuits and more than 100 district courts had ruled otherwise. No court had accepted his position. At oral argument, the panel never let him off that point. The issue consumed all his argument time so he had nothing left for rebuttal. On the other hand, in light of how his argument went, I used very little of my time before sitting down.

Where the law is uncertain and conflicting decisions or building blocks render it a close call, credibility can be the key to success. A court is more likely to accept a novel position if it is built on a solid and acceptable foundation, rather than one that does not withstand scrutiny.

Today’s second tip requires you to lay a foundation for the fundamentals that undergird what may be a fairly sophisticated issue. Judges are often generalists and may lack experience with even well-established issues. There are many areas of law where the usual assumptions do not apply. Burdens can shift to defendants, proximate cause standards can vary based on statutory text, and developing trends can signal a change when the context of the dispute creates new considerations. A credible and informed brief will explain the basic rules, whether they apply or require adjustment because of the context of the case. Even during oral argument, it pays to explain fundamentals before reaching the key issue. While most judges are well prepared for oral argument, some may not have read the briefs as carefully as you assume. Without dwelling on basic concepts, it helps to tie them to the issue at hand unless a fair reading of the tribunal indicates a different course. At the same time, one must be alert to a well-informed court that will not patiently await your explanation of basic law.

While no advice about brief writing or oral argument is immutable, credibility and foundational explanations for the legal issue come to providing a consistently helpful approach as any advice you might consider.

A Focus on the Facts

Sometimes the law wins a case; sometimes the facts do. Yet, even when the case presents a purely legal question, it pays to shape the factual narrative to make sense of the applicable law.

In its first-of-the-term oral argument, the Supreme Court heard Sackett v. EPA, No. 21-454, a case that turns on the meaning of “navigable waters” in the Clean Water Act. The long running litigation, returning to the Supreme Court a decade after its first trip there demonstrates the importance of the factual narrative, even if what constitutes navigable waters under the Act seems not to depend on the underlying facts.

The Plaintiff-Petitioners have portrayed the case as one where a couple seeks to build a modest home on their land in a residential zone for near the Canadian border in Idaho and some 300 feet from a nearby lake. Because they failed to seek a permit, they told the Court the EPA stopped the construction and threatened “crushing fines” because the land contains “navigable waters,” even though there are no streams, rivers, lake, or similar waters on the property. Instead, in the Sacketts’ telling of the story, the EPA has made a highly attenuated connection between the lake, which is navigable, through a connected “non-navigable creek” that itself is attached to a ”nonnavigable, man-made ditch” connected to wetlands that are separated from the property by a thirty-foot-wide paved road. Who, the Sacketts ask, could possibly anticipate that this property would be covered by the Clean Water Act. The narrative, which Justice Neil Gorsuch picked up in oral argument, attempts to portray EPA’s definition of navigable waters as unjustifiable based on both text and its attempt to apply to these facts.

The EPA provides a different narrative. In that story, the Sacketts’ property, which was, historically, part of a fen complex that still exists and drains directly into the lake. The property connects to the wetlands and lake through “shallow subsurface flow.” The Sacketts received information about obtaining a site-specific permit that would have covered home construction, but chose to proceed without a permit, using their own commercial construction and excavation business to dump 1700 cubic yards of gravel and sand to fill the wetlands in order to commence construction. Federal officials inspected the site in response to a complaint, finding “soils, vegetation, and pooling water characteristic of wetlands.” The Sacketts own expert then inspected and confirmed that the property was located on wetlands. Because the Sacketts’ wetland property affected the lake’s water quality through sediment retention, contributed base flow to the Lake with beneficial effects to fisheries, and provided flood control, the EPA ordered the Sacketts to remove the gravel and sand they added and restore the wetlands.

The Sacketts’ narrative suggests innocent and sympathetic landowners attempting to build a home, a story that supports the idea that bureaucrats have gotten out of hand. The EPA’s narrative counters that tale by showing that the Sacketts operate a highly relevant business and were informed about how to comply with the law but chose to flout it to challenge the order, pre-enforcement.

 The first narrative portrays a sympathetic set of facts, while the counterstatement undermines that status, while generating some sympathy for EPA’s actions in trying to avoid a problem by providing the means to obtain a permit.

 Ultimately, the decision may turn on what Congress intended to include within EPA’s regulatory ambit. And, at oral argument, the Court seemed divided on that question. Nonetheless, experienced appellate advocates understand that law cannot be determined in a vacuum and will a factual lens from which to read the applicable law.

Shortcomings in Arguing Original Public Meaning

From questions posed at the confirmation hearings of now-Justice Ketanji Brown Jackson to the decisions at the end of the most recent Supreme Court term and the lower court decisions that soon followed, the rapid recent embrace of “original public meaning” as the metric for constitutional interpretation now dominates appellate argument. Some judges even somewhat crassly pose the question: is there an originalism argument to support your position?

Originalism’s shortcomings are apparent. James Madison, rightly recognized as the Father of the Constitution, described records of the Constitutional Convention as “defective” and “inaccurate.” Justice Robert Jackson critically explained that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.” Judges commonly rely on a highly selective use of history that allows the invention of intent, rather than its discovery, as Professor Ronald Dworkin wrote. And, however illuminating the historical inquiry can be, even Justice Antonin Scalia, a leading advocate of this interpretative methodology, described himself as a “fainthearted originalist” in order to avoid the absurd results it could bring about.

Certainly, many underlying assumptions of the society the Framers lived in no longer undergird modern society. Just as their attitudes about gender and race, land ownership and the common good influenced their attitudes about a host of issues of constitutional dimension, modern sensibilities about these topics must look at deeper meanings to understand contemporary application. Even advances in transportation, communications, and science more generally have profound implications for constitutional understandings. And, the Constitution, written in the language of the common law, is capable of sensible application unforeseen by its progenitors. Even the most faithful originalist can only see the past through the eyes of the present.

However, the revolutionary nature and adventurism of the Constitution seems missing from the debate over originalism and its application to current issues. Ideas from the Enlightenment and idealized versions of what good government means animated the effort, even if myopic about how those ideals contradicted slavery and other institutions left unaffected. Still, those who framed the Constitution and supported its instigation publicly sought two things: a government with the energy to prove Montesquieu wrong about the viability of an extended republic by enabling an experiment in self-government across vast territory and a regime capable of respecting rights grounded in ideals of liberty, justice, and equality. They imagined continuing change toward a “more perfect union,” never believing that their efforts had achieved that goal. And they imagined continuing debates on what they had wrought. As Madison stated during the debate on the Jay Treaty in the First Congress, the Framers were not of one mind about the words of the Constitution. Instead, “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding our Constitution.”

Indeed, the change of attitude he and others adopted about the authority of the federal government to charter a national bank reveals that understandings can change based on arguments and experience that demonstrate greater flexibility than some thought the words portended. Notably, on the issue of a national bank, respected constitutional framers divided on its legality from the start.

We see the same indeterminacy in the affirmative action cases before the Supreme Court tomorrow. Contradicting amicus briefs by historians explain why one side or the other should prevail. The opposing parties also invoke Brown v. Board of Education, claiming it supports them and not the other side. All of it confirms that advocacy is about argument – and no side has a monopoly on any mode of interpretation.

There is a lesson to be drawn. The appellate advocate must enter the courtroom clear-eyed, aware of the outsized role that history now plays in constitutional interpretation while cognizant of its shortcomings. The advocate must address that thirst for historical support while also understanding that other tools exist to reach a result faithful to the Constitution with an equal claim to grounding in history. Anyone who tells you only a single path exists to reach the right result misunderstands the interpretative exercise.

The New World of Constitutional Appellate Advocacy

Appellate decisions may decide a dispute between opposing parties and articulate a rule of law, but they often create new issues that can flood the courts. The Supreme Court’s newly energized reliance on history and tradition, rather than balancing tests and levels of scrutiny, has opened the door to arguments that that previously had little chance of success. And, advocates, unsurprisingly, have shown no hesitation to take up the cudgel now available to them.

Take the new attacks on gun regulations. At the end of last term, in New York St. Rifle & Pistol Ass’n v. Bruen, the Supreme Court struck down New York’s 1911 law that required proper cause or special need to obtain an unrestricted gun license. It held that the Second Amendment, no less than any other constitutional right, does not require the demonstration of a special need to justify its exercise. Instead, regulations and restrictions on guns had to fit within historical traditions. Under that approach, the 6-3 majority stated in an opinion by Justice Thomas, “sensitive places,” like courthouses and polling places, might legitimately impose restrictions on carrying firearms, but the urban character of a place could not. Public safety considerations, the opinion established, do not outweigh the constitutionally recognized right.

As predictably as night follows day, other gun regulations came under attack as inconsistent with historical traditions. Courts have now struck down a variety of gun regulations. For example, in Firearms Policy Coalition, Inc. v. McCraw, a Texas law prohibited persons under twenty-one from carrying a gun off their premises except in limited situations. The district court, which stayed its decision pending appeal, held that the “Second Amendment’s text, as informed by Founding-Era history and tradition, . . . protects [18-to-20-year-olds] against this prohibition.” The court reasoned that the Second Amendment included no textual age restriction, the historical analogues that Texas produced to meet its burden to uphold the law lacked the necessary specificity, and that examples from the 19^th century failed because they were not from the founding era.

A federal law that restricted handgun purchases to those under indictment for crimes that involve at least one year of imprisonment suffered a similar fate when a federal judge found insufficient evidence that it “aligns with this Nation’s historical tradition.” In United States v. Quiroz, the court acknowledged “valid public policy and safety concerns,” but found the Bruen’s historical tradition analysis swept those aside.

In New York, a federal judge limited New York’s post-Bruen statute that attempted, among other things, to define “sensitive” or “restricted” locations” by declaring unconstitutional its application to places that lacked historical precedent. In Antonyuk v. Hochul, the court struck down restrictions that applied to summer camp, public transportation, places of entertainment or amusement where alcohol is served, Times Square, and a generally defined sensitive or restricted places.

To this list, in the past week another decision came down. In United States v. Price, a federal district court struck down the federal law that prohibits possession of a firearm with an altered, obliterated, or removed serial numbers because it lacked historical analogue. The court notes that it is “undisputed that serial numbers were not required, or even in common use, in 1791,” but came into effect only with the mass production of firearms. Even then, serial numbers became mandatory only after passage of a 1968 federal law. Those facts were determinative under Bruen’s mandatory mode of analysis.

These examples demonstrate the limited value of the type of rigid analysis adopted by the Court. Even so, an advocate pressing an issue cannot forego utilizing the Court’s new-found fondness for historical tradition when advancing arguments under other constitutional provisions. And, under that approach, settled law can become unsettled. It may even be a form of malpractice to accept precedent not based on historical conventions without making new arguments that place the advocate’s position within that accepted tradition. Welcome to the new world of constitutional appellate advocacy.

Why Judicial Deference Matters Now More Than Ever

As the United States Supreme Court begins a new term, its approval among the public is alarmingly low[1]. Whether driven by the Court’s recent decision in Dobbs v. Jackson Women’s Health, the fact that the justices’ decisions often conveniently coincide with their political beliefs, or the fact that the Court’s composition, rather a principled interpretation of the Constitution, seems to determine whether a right is fundamental, there can be no doubt that the Court’s legitimacy is at stake.[2] Put simply, the Court is now viewed by many as a political institution, where constitutional meaning changes based on whether its current members are conservative or liberal.  

So how can the Court’s legitimacy remain intact and the public’s confidence in the Court be restored?

Certainly not by expanding the Court, which is liberals’ way of saying that they want to put more liberal justices on the Court to reach outcomes that they like. 

Certainly not by endorsing living constitutionalism, which basically means that the justices can manipulate or ignore the Constitution to reach decisions that comport with their subjective policy predilections.[3] Certainly not by having an on-again, off-again relationship with stare decisis, in which the Court’s adherence to precedent depends on whether a majority of the justices are Republicans or Democrats.

And certainly not by listening to the media or, worse, academics’ criticism of the Court, which is as blatantly partisan and equally unprincipled as the Court it so consistently criticizes. Indeed, and quite amazingly, some academics have complained that they now struggle to teach constitutional law, stating that they are ‘traumatized’ by the Court’s recent decisions, which they view as partisan and “results-oriented.”[4] Some have even asserted that decisions such as Dobbs “have unsettled the foundational premises of [their] professional lives,” left them “deeply shaken,” and required their “own personal grieving period” where they look to students to keep them “afloat in darker moments."[5]  

No, this is not a joke. Law professors actually made these statements.

Thankfully, Professor David Bernstein has called out this nonsense:

[T]he fact that the Court is solidly conservative, and the constitutional law professoriate overwhelmingly liberal or further left, is exactly the problem. In the past, the left could count on the Court for sporadic big victories: same-sex marriage, affirmative action, [and] abortion. Now they can't, so they have turned against the Court. We all know that left-leaning lawprofs would be dancing in the streets if SCOTUS were equally aggressive to the left. And indeed, while [Mark Joseph] Stern portrays discontent with the Court as a question of professional standards rather than ideology, he does not manage to find a single right-leaning professor to quote in his article.[6]

That’s because they are practically no conservative law professors in academia – or even the pretense of viewpoint diversity at many law schools.

In any event, how can the Court preserve its institutional legitimacy?

By embracing a more robust form of judicial deference. Put simply, the Court should not invalidate a statute unless it clearly violates a provision in the Constitution, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text. Thus, when the Constitution is ambiguous and subject to reasonably different interpretations, the Court should defer to the democratic process and not get involved. In so doing, the Court can reduce, at least to some degree, the perception that the existence of constitutional rights and the outcomes of cases depend on whether a majority of the justices are conservative or liberal.

Below are several examples of cases where the Court should have never intervened and where its intervention harmed its legitimacy.

1.    National Federation of Independent Investors v. Sebelius

In National Federation of Independent Investors, the Court addressed whether the Affordable Care Act, including the individual mandate to obtain health coverage, violated the Commerce Clause, which gives Congress the broad power to regulate commerce.[7] The answer to this question, particularly given the Clause’s broad language, is anybody’s guess, and reasonable arguments could be made in favor of and against upholding the Affordable Care Act.  What is known is that both houses of Congress passed and the president signed this legislation. So why did the Court get involved? After all, given that reasonable people could disagree on the Act’s constitutionality, why didn’t the Court simply defer to the coordinate branches and democratic process? That’s anybody’s guess too.

Unfortunately, the Court intervened, and, in a 5-4 decision (predictably divided on partisan lines), the Court upheld most of the Act’s provisions. And Chief Justice Roberts, ostensibly concerned with the Court’s legitimacy, somehow determined that the individual mandate constituted a tax, not a penalty. This reasoning was, to put it mildly, troubling. If the Court was concerned with its legitimacy, it should have never heard the case.

2.    Kennedy v. Louisiana

In Kennedy v. Louisiana, the Court addressed whether a Louisiana law that authorized the death penalty for child rape violated the Eighth Amendment’s prohibition against cruel and unusual punishment.[8] To be sure, the Eighth Amendment, among other things, was intended to prevent the infliction of unnecessary pain when punishing convicted offenders and prohibit sentences that were disproportionate to the severity of the crime. Given this backdrop, the Eighth Amendment’s text, and the Court’s precedent, did the Louisiana law violate the Eighth Amendment?

Who knows. Reasonable jurists can – and did – disagree on this question. What we do know is that Louisiana passed this law democratically.

Accordingly, why did the Court get involved and, in a predictably verbose and wishy-washy 5-4 opinion by Justice Anthony Kennedy, invalidate the law?

3.    Citizens United v. FEC and McCutcheon v. FEC

In Citizens United v. FEC, the Court held in a 5-4 decision that the First Amendment prohibited Congress from restricting independent expenditures by corporations, labor unions, and other associations.[9] And in McCutcheon v. FEC, the Court held, in another 5-4 decision, that limits on individual expenditures to federal and state candidate committees violated the First Amendment right to free speech.[10]

Did the Constitution compel this result? Of course not. The First Amendment protects, among other things, freedom of speech. But does giving money to a political candidate or committee constitute speech? And if so, is the government’s interest in ensuring that wealthy corporations and individuals do not unduly influence elections sufficiently compelling to justify a restriction on this speech? Yet again, reasonable people can disagree.

As such, why did the Court get involved and invalidate legislation that was designed to reduce undue influence by corporations and wealthy individuals in the electoral process?  

4.    Roe v. Wade

There is no need to discuss Roe in detail. Nearly all legitimate constitutional law scholars agree that Roe was a terrible decision. It had no basis in the Constitution’s text, was not inferable from any provision in the text, and was not rooted in history and tradition. Notwithstanding, in Roe, like in Griswold v. Connecticut, the Court invented an unenumerated right out of thin air, thus imposing the subjective values of nine unelected justices on an entire country.[11] And the doctrine upon which Roe was based – substantive due process – was equally as indefensible.

The Court should have never gotten involved. It should have allowed the people to decide whether, and under what circumstances, abortion should be allowed. Although the Court corrected this error in Dobbs, the decision to overrule Roe, which had been the law for nearly fifty years and was affirmed in Planned Parenthood v. Casey, was troubling. Indeed, the only thing that changed since Planned Parenthood was the Court’s composition. Notwithstanding, the fact remains that Roe was the original sin and the product of the Court’s unnecessary meddling in the democratic process.

5.    Clinton v. New York

In Clinton v. New York, the Court addressed whether the Line Item Veto Act of 1996, which authorized the president to repeal portions of statutes that had been passed by both houses of Congress (particularly spending provisions) violated the Constitution’s Presentment Clause.[12] The Clause states in pertinent part that “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it.”[13]

The Line Item Veto Act, some argued, violated the Presentment Clause because it allowed the president to unilaterally and without Congress’s approval repeal specific provisions of duly enacted legislation. At the same time, however, Congress, on a bipartisan basis, passed the Line Item Veto Act to, among other things, reduce wasteful government spending. Given these facts, and considering the Presentment Clause’s broad language, was the Line Item Veto Act constitutional?

Certainly, reasonable people could disagree on this question. Thus, why not defer to the coordinate branches and to the democratic process? Unfortunately, the Court yet again intervened and, in a 6-3 decision, invalidated the Act. In so doing, it prevented Congress from addressing the problem of wasteful government spending.

6.    Shelby County v. Holder

In Shelby County v. Holder, the Court invalidated Section 4(b) of the Voting Rights Act, which includes a coverage formula that determines which states (based on a history of discrimination) must seek preclearance before enacting changes to their voting laws.[14] Importantly, in 2006 the Senate reauthorized the Act, including Section 4(b), by a unanimous vote.  

Notwithstanding, the Court decided to get involved and, by a 5-4 vote, invalidated Section 4(b). But was it clear that Section 4(b) violated any constitutional provision? No. So why did the Court get involved? Why didn’t the Court defer to the democratic process and to the Senate’s unanimous vote to reauthorize the Act? Again, it’s anybody’s guess.

***

The above cases are just a sample of those in which the Court’s intervention was unnecessary and unwarranted. Unless a statute clearly violates a provision in the Constitution’s text, the Court should defer to the democratic and political process, and it should not create a right unless it is based on or reasonably inferable from the Constitution’s text.

After all, intervening in such circumstances makes the Court appear political and undermines its legitimacy. The Court’s decision in Dobbs highlights this problem. Although the Court was technically correct to overrule Roe, that doesn’t mean that it should have done so. Why? Because the only thing that changed between Roe and Planned Parenthood v. Casey, where the Court reaffirmed Roe’s central holding, was the composition of the Court. Specifically, the Court in 2022 had more conservative members than in 1992, and its decision sent the message that the existence of constitutional rights depends on whether the Court has a majority of conservative or liberal members. It's difficult to understand how Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barret could not grasp this fact.  

To restore its legitimacy, the Court should defer more often to the coordinate branches and adhere to stare decisis on a more consistent basis. That can only happen if the Court stops invalidating laws that do not clearly violate the Constitution, refuses to create rights out of thin air, and does not reverse precedent simply because it has a majority of conservative or liberal jurists.

 

[1] See Jeffrey M. Jones, Supreme Court Trust, Job Approval at Historic Lows, (Sept. 29, 2022), available at: Supreme Court Trust, Job Approval at Historical Lows (gallup.com)

[2] No.19-1392, 597 U.S.     , available at: https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[3] See, e.g., Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sep. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[4] Mark Joseph Stern, The Supreme Court is Blowing Up Law School, Too (Oct. 2, 2022), available at: Supreme Court: Inside the law school chaos caused by SCOTUS decisions. (slate.com)

[5] Id.

[6] See David Bernstein, Why Are Constitutional Law Professors Angry at the Supreme Court? (Oct. 3, 2022), available at: Why Are Constitutional Law Professors Angry at the Supreme Court? (reason.com) (emphasis added).

[7] 567 U.S. 519 (2012).

[8] 554 U.S. 407 (2008).

[9] 558 U.S. 310 (2010).

[10] 572 U.S. 183 (2014).

[11] 410 U.S. 113 (1973); 381 U.S. 479 (1965).

[12] 524 U.S. 417 (1998).

[13] U.S. Const., Art. I, Section 7.

[14] 570 U.S. 529 (2013).

When to Make a Bold Argument

Tomorrow, the Supreme Court launches into a new term that promises to be momentous. A no longer hesitant majority of the Court flexed their muscle last term to launch new approaches to constitutional law and overturn or impair venerable precedent addressing abortion, gun, and religious rights. Seeing the indisputable writing on the wall, some advocates have taken a hefty swing for the rafters on a range of other issues – and it seems likely to pay off because the court’s current membership has signaled its willingness to entertain bold requests, rather than incremental change, despite potential damage to the public’s trust in impartial justice divorced from politics. When a court signals its interests that appear to align with political ideologies, advocates should listen and act accordingly.

 In anticipation of this term, advocates have listened. A cluster of cases have arrived at the Court seeking a pure version of Justice Harlan’s phrase, color-blindness, in civil rights and applying the concept to voting, affirmative action, Native American adoption, and non-discrimination in business dealings. While discussions about the upcoming term often begin and end with the potential of Moore v. Harper to skew our democracy so that parties in power could perpetuate their control regardless of what voters choose by invoking the “independent state legislature theory,” other earth-shaking cases populate the docket as well.

Today, I want to focus on another election law case that the Court will hear this week, which has received far less notice than it deserves and demonstrates the go-bold strategies being brought to the Court. In Merrill v. Milligan, the Court returns to the Voting Rights Act to determine whether Section 2 remains a viable basis for challenging racial gerrymandering. The plaintiffs challenged Alabama’s congressional redistricting plan, which, consistent with longstanding reapportionment decisions in the state, again drew a single majority-Black district out of the state’s seven seats, even though Blacks represent a quarter of the state’s population. The plaintiffs argue that by dispersing Black voters among the other districts the legislature diluted Black voting strength and diminished their opportunity to elect candidates who would represent their concerns and interests. Plaintiffs prevailed on that theory before a three-judge court.

The court below reached its decision by relying on the Supreme Court’s decision in Thornburg v. Gingles, which requires a vote-dilution claim to show a sufficiently large and compact minority group that is politically cohesive and who suffer an inability to elect the candidate of their choice because of non-minority bloc voting. After that determination, a totality-of-the-circumstances assessment then takes place to determine if the minority voters have a lesser opportunity to elect their preferred candidate than the majority voters.

Alabama, however, has asked the Court to change the test. A major part of its proposal asks that courts require plaintiffs to establish that racial discrimination provides the only explanation for the alleged racial gerrymander. In other words, Alabama’s test would authorize states to overcome the accusation by showing that some other purpose, such as party politics, provides at least part of the rationale for the districts drawn.

Without such a test, Alabama contends that Section 2 is unconstitutional because it requires race to be considered. With similar issues raised in affirmative action and Native American adoption cases this term, the Court’s interest in reconfiguring civil rights law seems apparent. Section 5 of the Voting Rights Act, requiring preclearance of certain election law changes, was neutralized in 2013 by Shelby County v. Holder. Similar damage was previously done to Section 2 in Brnovich v. Democratic National Committee last year by reading the statutory provision narrowly.

If Alabama’s argument prevails, Merrill may mark the demise of the Voting Rights Act and vindicate the very bold approach Alabama has taken to defending its gerrymandering with a clear eye on signals sent by members of the Court. Margo Channing’s observation in All About Eve seems to sum up anticipation of this Supreme Court term: “Fasten your seatbelts; it's going to be a bumpy [and long] night.”

History Rewritten to Serve Selfish Ends – and Serve an Argument

 

Quite appropriately, Moore v. Harper, the upcoming Supreme Court case that tests the validity of the “independent state legislature” theory, has set off alarm bells about the future of democracy in the United States. The theory holds that state legislatures hold exclusive authority to make decisions about congressional elections, unless overridden by Congress, based on the Constitution’s Elections Clause, Article I, Section 4, Clause 1. The Clause designates Congress and the states as holding responsibility to set the “Times, Places and Manner of holding Elections for Senators and Representatives.” Restrictions on state legislative authority imposed by a state constitution, including judicial enforcement of equal voting and non-discrimination mandates, the theory holds, must give way, rendering the state legislative determinations immune from judicial review, under the theory. When combined with Article II, Section 1, which assigns the manner for appointing presidential electors to state legislatures as well, the election denialism that has become a standard feature of the Trump political era could gain a permanent constitutionally blessed footing, potentially allowing state legislatures to overturn voters’ choices and name its majority party’s candidates the winners.

Today, however, one day after the Constitution’s 235^th anniversary, my topic is not how the “independent state legislature” theory realizes Justice Robert Jackson’s fear that the courts would read the Constitution in such a rigid insensible way that it becomes a “suicide pact.”[1] Instead, I want to focus on the North Carolina legislature’s use of history to support its argument as petitioner in the case. Given the originalist outlook that dominates the Supreme Court, it is unsurprising that parties appeal to history to support their desire outcome. What separates this brief from the usual attempt to invoke history, is its reliance on a widely debunked document to advance its cause.

The Petitioner’s opening brief tells the Court not to look at James Madison’s Virginia Plan for how to conduct federal elections because it is silent on the issue. Instead, it invokes the “alternative ‘Pinckney Plan,’” which contains remarkably similar language to what the Constitution says and is denominated in the brief as the “progenitor” of the Elections Clause. Because no other document that the Committee of Detail may have reviewed contained any plan similar in kind, the brief calls the Pinkney Plan confirmation of a deliberate choice to cede authority to the legislature.

The brief overlooks the fact that the original Pinckney Plan did not survive the Constitutional Convention and is lost to history. In a new article in Politico, Ethan Herenstein and Brian Palmer of the Brennan Center for Justice, explain that the “Pinkney Plan” is actually an 1818 draft by Charles Pinckney that was a revisionist attempt to claim more credit for the Constitution than Pinckney deserved.[2] As Herenstein and Palmer put it, during the Constitutional Convention, the records show that “the framers hardly discussed Pinckney’s plan and, at key moments, rejected his views during the debates.” They go on to cite James Madison’s reaction as “perplexed” by the document Pinckney released in 1818 “because he was ‘perfectly confident’” the new document “was ‘not the draft originally presented to the convention by Mr. Pinckney.’”

Madison noted that the similarity of language to the Constitution’s final text could not have been part of a plan at the Convention because framers hammered out its wording through long running internal debates that would not have occurred if a plan had already spelled them out. Moreover, Pinckney’s well-known positions at the Convention were at odds with what he now claimed to have proposed. For example, at the Convention, Pinckney argued that state legislatures should elect members of the House, but his 1818 document purports to show he favored popular election.[3]

Herenstein and Palmer assert that “nearly every serious historian agrees that the 1818 document is a fake.” They quote historian John Franklin Jameson’s statement in 1903 that the so-called draft was “so utterly discredited that no instructed person will use it as it stands as a basis for constitutional or historical reasoning.” Another researcher they quote called it “the most intractable constitutional con in history.”

Substantial additional support exists to doubt the veracity of the Pinckney Plan. Madison suggested that Pinckney rewrote his own plan weaving in passages from the Constitution, and that the intervention of 30 years made Pinckney’s memory of what was his and what was not flawed. Others put it less kindly. Historians, more than a century ago, described the document as a “pseudo draft” that “should be relegated to the depository of historical lies.”[4] Clinton Rossiter’s respected history of the Constitutional Convention written in 1966 simply dubbed it a “fraudulent document.”[5]

The reason the 1818 document exists is because Congress overrode the Framers’ own decision to keep their deliberations secret. President Monroe dispatched Secretary of State John Quincy Adams to assemble the records. While he found mention of a plan by Pinckney, no such document existed. He asked Pinckney for a copy, In Pinckney’s response, he claimed to have four or five drafts of the Plan but did not know which most accurately reflected his original plan and how much his re-writes changed the plan as his own views had changed over time.[6] The Petitioner’s brief recounts none of this history, but instead treats the document as authoritative.

Every state has adopted the Model Rules of Professional Conduct, which requires candor to the tribunal. It prohibits a lawyer from making “a false statement of fact or law to a tribunal or fail[ing] to correct a false statement of material fact or law previously made to the tribunal by the lawyer.”[7] The lack of candor in this brief may violate the Rule.

Will there be consequences to the use of this document or a failure to suggest its questionable providence? I doubt it. Will a member of the Court or even a majority cite it as authoritative as the petitioner has? Unfortunately, that seems likely. In responding to the historical basis for the end-of-the-term abortion decision in Dobbs v. Jackson Women’s Health Org.,[8] the American Historical Association and the Organization of American Historians expressed dismay that their amicus brief’s description of the relevant history was not taken “seriously” and that the Court instead “adopted a flawed interpretation of abortion criminalization that has been pressed by anti-abortion advocates for more than 30 years.”[9] Similarly, in SCOTUSblog, Saul Cornell, a Fordham University historian, called the history relied upon by the majority in the Second Amendment case of New York State Rifle & Pistol Association v. Bruen,[10] “a version of the past that is little more than an ideological fantasy, much of it invented by gun-rights advocates and their libertarian allies in the legal academy with the express purpose of bolstering litigation.”[11]

Regardless of whether these assessments are over-the-top or shaded by a predisposition on the underlying issue, the concern that history is manipulated to achieve an end applies with greater force to the courts.  Even as strong an advocate of originalism as Justice Scalia was worried that selective use of past events could predominate because “history, as much as any other interpretive method, leaves ample discretion to “loo[k] over the heads of the [crowd] for one’s friends.”[12] The danger is not just that an important issue is settled by a skewed view of history. It is also that the re-written history appears in an authoritative text that now controls future precedent and even the nature of future issues as though settled.

If, for example, a majority of the Court were to rely on Charles Pinckney’s 1818 document as reflecting what the framers of the Constitution might have thought, not only could they reach the wrong result, it would create an even greater schism in this country on the essential form of our republic, reading the Constitution as mandating what would surely be a suicide pact. And when a future, indisputably valid election is overturned, the courts may have nothing to say about the legislative coup that took place.

More trivially, another consequence would be to achieve the project that Charles Pinckney set for himself: a revision of history that would make him the true father of the Constitution – and a title he did not desire as the Constitution’s grim reaper.

 

[1] Terminiello v. Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

[2] Ethan Herenstein and Brian Palmer, “Fraudulent Document Cited in Supreme Court Bid to Torch Election Law,” Politico Mag. (Sept. 15, 2022, available at https://www.politico.com/news/magazine/2022/09/15/fraudulent-document-supreme-court-bid-election-law-00056810.

[3] 9 The Writings of James Madison 553-54 (Gaillard Hunt ed., 1910).

[4] Dotan Oliar, The (Constitutional) Convention on IP: A New Reading, 57 UCLA L. Rev. 421, 479 n.39 (2009).

[5] Id. (quoting Clinton Rossiter, 1787: The Grand Convention 331 n.* (1966)).

[6] Id. (citing Letter from Charles Pinckney to John Quincy Adams (Dec. 30, 1818), in 3 The Records of the Federal Convention of 1787, at 427-28 (Max Farrand ed., 1911).

[7] Model R. of Prof. Conduct 3.3.

[8] Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228 (2022).

[9] History, the Supreme Court, and Dobbs v. Jackson: Joint Statement from the American Historical Association and the Organization of American Historians (July 2022), available at https://www.historians.org/news-and-advocacy/aha-advocacy/history-the-supreme-court-and-dobbs-v-jackson-joint-statement-from-the-aha-and-the-oah-(july-2022).

[10] New York State Rifle & Pistol Ass'n, Inc. v. Bruen, 142 S. Ct. 2111 (2022).

[11] Saul Cornell, Cherry-picked history and ideology-driven outcomes: Bruen’s originalist distortions, SCOTUSblog (Jun. 27, 2022, 5:05 PM), https://www.scotusblog.com/2022/06/cherry-picked-history-and-ideology-driven-outcomes-bruens-originalist-distortions/.

[12] Antonin Scalia & Bryan Garner, Reading Law: The Interpretation of Legal Texts 377 (2012).

Appellate Advocacy Blog Weekly Roundup Friday, September 16, 2022

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

• After granting a temporary stay last week, the Supreme Court denied an emergency petition by Yeshiva University and refused to block a state court ruling that requires the university to recognize a L.G.B.T. student group. The university made the emergency motion to the Supreme Court before fully pursuing the appeal in the state court. The Court’s decision is based on the procedural posture, not the merits, and requires the university to pursue the challenge in state court. In the underlying case, the university argues that it should not be required to recognize the L.G.B.T. student group because doing so would violate the university’s Constitutionally protected free exercise of religion. The state court ruling rejected the university’s argument and entered an injunction that requires the university to grant the student group the “full and equal accommodations, advantages, facilities[,] and privileges afforded to all other student groups.” See the ruling and reports from The NY Times and The Washington Post.

• Justice Kagan spoke this week at Northwestern Law School and commented on the risk to the Court’s legitimacy if it is seen as an “extension of the political process.”  The event will be available on demand here.  See reports on Justice Kagan’s comments from The Associated Press, Reuters, and Bloomberg Law.

• Justice Roberts announced that the court will reopen to the public when the new term begins this fall. In his comments, he also defended the Court’s legitimacy, saying “simply because people disagree with opinions, is not a basis for questioning the legitimacy of the court.” See reports from USA Today CNN, and Bloomberg News.

Appellate Court Opinions and News

• The Ninth Circuit upheld a Washington state ban on conversion therapy. The court rejected a Constitutional challenge by a therapist that argued that the ban undermined the therapist’s free speech and targeted his Christianity. The Ninth Circuit rejected the challenge, finding that the state legislature acted rationally and, thus, did not violate the First Amendment when it imposed the ban to protect the “physical and psychological well-being of children.” See the ruling and reports from Reuters and Bloomberg Law.