Appellate Advocacy Blog

Trapped Between Two Precedents

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

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

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

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

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

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

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

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

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

 

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

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

[3] Id. at 269.

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

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

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

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

Will Former President Donald Trump’s Conviction Be Overturned?

On May 30, 2024, a Manhattan jury convicted former President Donald Trump of falsifying business records with the intent to defraud voters in the 2020 election. The conviction involves, among other things, a non-disclosure agreement that adult film actress Stormy Daniels signed in 2016, which prohibited Daniels from discussing the alleged sexual conduct that, in 2006, occurred with her and Trump.

After the sentencing hearing, which is scheduled for July 11, 2024, Trump’s attorneys will file an appeal seeking to overturn the decision. Below is a brief discussion of the issues that Trump’s attorneys will likely raise on appeal, and a prediction of whether they will be successful.

    1.    The failure to remove Judge Merchan from the case.

Judge Merchan allegedly donated $15 to President Joe Biden’s 2016 election campaign and $10 to an organization called Stop Republicans. A state ethics panel subsequently cautioned Merchan against making such contributions to avoid the appearance of bias. Also, Judge Merchan’s daughter, Loren, works for Authentic Campaigns, a political marketing agency that serves Democratic political candidates, and for a time, Loren was Authentic’s president and Chief Operating Officer. Loren also allegedly displayed an image of President Trump behind bars on her Twitter page, which was later removed. Based on these facts, Trump’s attorneys requested that Judge Merchan be removed from the case. That request was denied.

Perhaps Judge Merchan should have recused himself, but whether he was legally required to do so is a different matter. Judge Merchan donated a small amount to Biden’s campaign eight years ago. Also, Loren’s job at Authentic does not mean that Judge Merchan, because of his daughter’s political activities, will be biased in the trial or have an actual or apparent conflict of interest.

            Prediction: Unsuccessful.

    2.    The failure to change venue.

To many legal scholars and commentators, President Trump faced an uphill battle in this trial because Manhattan is a decidedly liberal city where over eighty-five percent of residents voted for President Biden in 2020, and where a bias toward Trump exists. Indeed, when jury selection began, half of those called for jury duty immediately stated that they could not be impartial in their deliberations. And of the twelve jurors selected, it is highly likely that the majority voted for Biden and harbored negative feelings toward Trump. Given these facts, Trump’s attorneys argued for a venue change, which Judge Merchan denied.

However, the law did not likely require a venue change. To hold that the political orientations of the jurors justify a change in venue in every or most cases would upend the jury system and make criminal trials incredibly inefficient.  Every criminal defendant could argue that the political demographics of a county, city, or state justified a venue change. Moreover, a venue change would not guarantee that existing biases in another venue would be eliminated; also, jurors can certainly assess the facts and evidence objectively despite their political affiliations.  Simply put, it is quite speculative to assume that jurors, who take an oath to be impartial and base their decision on the facts and evidence, would yield to and convict or acquit based upon their political biases. One should have more faith in the citizens of this country.

            Prediction: Unsuccessful.

    3.    Judge Merchan’s decision to allow Stormy Daniels’ testimony.

At the trial, Stormy Daniels testified about a sexual encounter that she had with President Trump in 2006 and, in that testimony, she provided graphic details about the encounter that did not relate to any of the elements of the charges against Trump. Daniels’ testimony also contradicted her prior statements, where she denied that such an encounter ever occurred. Based on the explicit sexual details that Daniels provided in her testimony, the defense will argue that this testimony was unduly prejudicial.

But during the opening statements President Trump’s lawyer, Todd Blanche, told the jury that Trump never had a sexual encounter with Daniels, thus justifying the prosecution’s decision to call Daniels to refute this assertion, which was the alleged motive for the non-disclosure agreement. However, the graphic details to which Daniels testified, such as what President Trump was wearing, how long their sexual encounter lasted, and what sexual position he preferred (Judge Merchan sustained an objection to this part of the testimony), were unnecessary. Surprisingly, the defense did not object to certain portions of this graphic testimony, which prompted Judge Merchan to criticize the defense for not making such objections.

Regardless, as stated above, because Trump specifically denied having a sexual encounter with Daniels, the prosecution was justified in calling Daniels to refute this statement. The question on appeal, therefore, will turn on whether the lurid details that Daniels provided–and which were irrelevant to the prosecution’s case–were sufficiently prejudicial to deprive President Trump of a fair trial.

The answer is, most likely, no. The appellate courts will decide that this was a harmless error.

            Prediction: Unsuccessful.

    4.    Judge Merchan’s evidentiary rulings.

Trump’s attorneys will argue that Judge Merchan’s evidentiary rulings reflected a pro-prosecution bias throughout the trial and compromised President Trump’s right to a fair trial.

Some of the objections that Judge Merchan sustained for the prosecution were questionable. For example, the way Judge Merchan limited Robert Costello’s testimony–not to mention his hostile demeanor toward Costello, calling him contemptuous and threatening to strike his testimony–was concerning. Of course, Costello did himself no favors by acting disrespectfully when Judge Merchan sustained one of the prosecution’s objections. You would think that a lawyer of Costello’s caliber would refrain from such conduct, which severely compromised his credibility.

Additionally, Judge Merchan also restricted the testimony of former Federal Election Commission Chairman Brad Smith, who would have testified that Trump’s payments to Cohen did not constitute a campaign finance violation.  In fact, the restrictions were so significant that the defense decided not to call Smith, Furthermore, Judge Merchan allowed the prosecution to tell the jury that Cohen had pleaded guilty to a campaign finance violation – which was among the charges that Trump faced.[1] When Judge Merchan allowed this, he should have permitted Brad Smith’s testimony to refute the prosecution’s argument. Judge Merchan’s failure to do so is very problematic because it enabled the jury to think, “If Cohen pleaded guilty to a campaign finance violation, then Trump must be guilty too.”

Also, Judge Merchan’s decision regarding the permissible scope of cross-examination if Trump testified was troubling. Specifically, Judge Merchan ruled that the prosecution could ask Trump about the verdict finding him liable for defaming E. Jean Carroll, about the four-hundred-and-fifty-four-million-dollar verdict that Judge Arthur Engeron imposed in President Trump’s civil fraud trial, and about Trump’s numerous violations of Judge Merchan’s gag order. None of these questions related to the charges facing Trump, and allowing the prosecution to ask such questions was more prejudicial than probative. And these rulings played a significant role in Trump’s decision not to testify.

Judge Merchan’s decision regarding the scope of cross-examination may be problematic given the Court of Appeals of New York’s recent decision in People v. Weinstein, where the Court, by a 4-3 decision reversed the conviction against Harvey Weinstein on sexual assault charges. In that case, the Court of Appeals held that the trial court improperly allowed several women to testify that Weinstein had sexually assaulted them, even though Weinstein was not on trial for assaulting those women. As the majority stated, “[u]nder our system of justice, the accused has a right to be held to account only for the crime charged and, thus, allegations of prior bad acts may not be admitted against them for the sole purpose of establishing their propensity for criminality.”[2]

To be clear, this is not to say that Judge Merchan was consciously biased against President Trump. It is to say that some of his evidentiary rulings, including when considering the Court of Appeals’ decision in Weinstein, might constitute reversible error.

            Prediction: Possibly successful.

    5.     Whether Michael Cohen’s testimony should not have been given any weight by the jury, thus justifying a directed verdict for President Trump.

Michael Cohen was not a credible witness.  He lied to Congress.  He pleaded guilty to tax evasion and bank fraud (which were unrelated to Trump), which led to his disbarment and incarceration. He lied to a federal court. He called a deceased federal judge corrupt. He secretly recorded President Trump–his client at the time–during a meeting where they discussed the payment to Daniels. He stole thousands from the Trump Organization. And he lied to or omitted material information about an October phone call with Trump’s bodyguard, Keith Schiller. Also, during his testimony, Cohen blamed his legal troubles on being “knee-deep in the cult” of President Trump, showing that he lacked any sense of personal accountability. Lest there be any doubt about Cohen’s character, watch his belligerent rants online, where he states how much he wants Trump to go to prison while wearing a shirt depicting Trump behind bars.

Cohen had about as much credibility as those claiming that the government faked the moon landing or that Elvis faked his death.

Incredibly, however, the jury believed at least some of Cohen’s testimony because Cohen was the only witness who could testify to, among other things, Trump’s specific intent to defraud voters and promote or prevent the election of any person to public office.[3]  Given that the trial occurred in Manhattan and that at least some jurors despised Trump, this should not be surprising. Moreover, although some commentators made much of the fact that there were two lawyers on the jury, this did not bode well for President Trump. One attorney, who moved to New York from Oregon, has lived in Chelsea for five years, which is notoriously liberal.  The other lawyer worked as a civil litigator at a firm in New York City, and firms in New York City are overwhelmingly liberal.

Regardless, is the jury’s reliance on Cohen’s testimony a basis to reverse the decision? No. Jurors are given wide latitude to credit or discredit the testimony of a witness, and an appellate court will not second-guess the jury’s fact-finding.

            Prediction: Unsuccessful.

    6.    The charge that Trump falsified business records.

Based on the evidence, the jury concluded that President Trump falsified business records. The facts suggested that after Stormy Daniels threatened to go public with her story, Cohen established a corporation, from which he paid $130,000 to Daniels after obtaining a home equity loan. Trump subsequently reimbursed Cohen for the money that he paid to Daniels.

President Trump’s accountant designated these payments as “legal expenses,” using a drop-down menu on a computer to make this designation. Why this designation was improper given that Trump made the reimbursement in connection with a legally enforceable non-disclosure agreement is unclear. And one can certainly question precisely how President Trump “caused” the records to be falsified—if they even constituted falsification. What’s more, the entries into the business records were made after the 2016 election. Thus, how can President Trump be found guilty of falsifying business records to promote or prevent the election of a candidate when the election is already over?

The appellate courts, however, will probably not focus on this issue because it will likely defer to the jury’s fact-finding.   

            Prediction: Unsuccessful.

    7.    Judge Merchan’s jury instructions.

This is where President Trump will succeed on appeal.

Judge Merchan allowed the jury to reach a non-unanimous verdict on the underlying crime(s) that elevated a misdemeanor barred by the statute of limitations into a felony.

To best explain this, consider the following examples: The crime of armed robbery typically requires a person to: (1) take the property of another; (2) without their consent; and (3) with the use of force. To obtain a conviction, all three elements must be satisfied. But the jury need not be unanimous on, for example, how the defendant used force. Some might conclude that the defendant used a gun, while others may conclude that the defendant used a knife. Unanimity on the underlying means is unnecessary if all jurors agree that the defendant used force because the use of force is the element that must be satisfied. Likewise, first-degree murder requires that the defendant: (1) intentionally; (2) kill another person. To convict, the jury must only agree that the defendant acted intentionally to cause the death of another person. It need not agree, however, on whether the defendant killed a person with a gun, a knife, or an ax.

The New York election law is different. It prohibits a candidate from: (1) promoting or preventing the election of a candidate; (2) by unlawful means. Unlike the robbery or murder examples, which specify the conduct needed to satisfy each element (e.g., the use of force), the New York law, in using the vague term “unlawful means,” does not delineate what conduct constitutes “unlawful means.” As such, the “unlawful means” element arguably permits a jury to choose among numerous crimes to convict the defendant without agreeing unanimously that the elements of any single crime were satisfied.

In President Trump’s trial, this is precisely what occurred. The prosecution stated in its closing argument that in deciding whether Trump was guilty of a second underlying crime, the jury could conclude that Trump violated campaign finance law, federal tax law, or engaged in additional falsification of business records. To make matters worse, Judge Merchan instructed the jury that they must only reach unanimity on which underlying crime was committed—not on whether the elements of any underlying crime were satisfied.[4]

In so doing, Judge Merchan permitted the jurors to convict Trump without unanimous agreement that the elements of any single crime were satisfied. Thus, if four jurors agreed that Trump was guilty of a federal campaign finance violation, four agreed that he was guilty of violating federal tax law, and four agreed that he was guilty of falsifying additional business records, Trump could be convicted. In fact, to date, we still do not know what underlying crime(s) the jury found Trump to have committed. This instruction arguably violated the United States Supreme Court’s decisions in Ramos v. Louisiana and Richardson v. United States.[5]

That instruction was a reversible error. And it may not be the only one.

By allowing the prosecution to proceed on an indictment that never specified the underlying crime that elevated the misdemeanor (falsification of business records) to a felony, the prosecution deprived President Trump of his Sixth Amendment right to know the nature of the charges that he was facing. That is precisely why, to this day, we have no idea what underlying crime the jurors reached an agreement upon.

That is the point – and the problem.

Additionally, the law upon which Trump was convicted–N.Y. Election Law 17-152–should be deemed unconstitutional because the term “unlawful means" is vague and essentially permits a jury to convict a defendant even if they do not agree on the underlying crime constituting the "unlawful means," and even if they do not agree unanimously that the underlying elements of any single crime have been satisfied.  

            Prediction: Successful.

***

One must wonder why these charges were ever brought. Convicting a former and possibly future president based on conduct occurring eighteen years ago, which involved an alleged “falsification of business records” that occurred eight years ago, is concerning. It suggests that the legal system is being weaponized against a political opponent. After all, if President Biden had engaged in this conduct, do you think that Manhattan District Attorney Alvin Bragg would have brought these charges? Of course not.

That, again, is the point – and the problem.[6]

Trump’s conviction will be overturned.

 

[1] Specifically, during its opening statement, the prosecution told the jury that “Cohen will also testify in this trial that he ultimately pled guilty and went to jail for causing an unlawful corporate contribution in connection with the Karen McDougal payments and for making an excessive campaign contribution in connection with the Stormy Daniels payoff.” 

[2] See Peter Sterne, Why Did New York’s Highest Court Overturn Harvey Weinstein’s Conviction? (April 29, 2024), available at: Why did New York’s highest court overturn Harvey Weinstein’s conviction? - City & State New York (cityandstateny.com)

[3] See N.Y. Election Law 17-152.

[4] Consider by analogy the following law: “It shall be unlawful to physically harm a person through unlawful means.” This would allow a jury to convict a defendant even if four jurors agreed that the harm occurred through kidnapping, four others agreed that the harm occurred through assault, and four others agreed that the harm occurred through battery. In such a circumstance, the jurors would not agree unanimously that the defendant’s conduct satisfied the elements of any single crime. That should prohibit a conviction.

[5] 590 U.S. 83 (2020); 526 U.S. 813 (1999).

[6] Recently, Judge Merchan notified the parties that, on May 29, 2024, a cousin of one of the jurors allegedly posted on a social media website stating as follows: "My cousin is a juror and says Trump is getting convicted! Thank you folks for all your hard work!!!!" See Ella Lee, Trump Hush Money Judge Flags Facebook User Claiming Early Knowledge of the Verdict (May 29, 2024), available at: Trump hush money judge flags Facebook user claiming early knowledge of verdict (thehill.com)

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is the United States Supreme Court a Political Institution?

Public opinion of the United States Supreme Court has declined recently, with some commentators arguing that the Court is a political institution. Below is a brief analysis of why the Court is perceived as political, and how the Court can avoid this perception in the future.

A.    Is the Court a “political” institution?

When one labels the Court as a “political” institution, how is “political” being defined? For this article, “political” is defined as reaching decisions that coincide with a justice’s policy preferences. This does not mean, of course, that a decision coinciding with a justice’s policy views is inherently political, or that the justices are basing their decision on political considerations, as there may be legitimate textual or statutory bases to reach those decisions. Notwithstanding, public perception of whether the Court is acting in a political capacity is often influenced by whether the Court’s vote in particular cases split along ideological lines.

Given this definition, is the Court a political institution? Yes and no. 

To begin with, most of the Court’s cases do not involve divisive social issues. Rather, they involve issues such as choice of law provisions in maritime contracts, trademark issues, the bankruptcy code, the takings clause, and the Federal Arbitration Act. Such cases do not result in decisions that most people would consider politically motivated.  

Furthermore, the Court’s cases are often decided unanimously or by six, seven, or eight-member majorities. From 2008 to 2019, for example, the Court’s unanimous decisions ranged from thirty-six to sixty-six percent of its cases.[1] Conversely, the percentage of 5-4 decisions ranged from five to twenty-nine percent.[2] Rulings with six, seven, and eight-member majorities ranged from twenty to fifty-one percent.[3] Additionally, in 2021, the Court reached unanimous decisions in sixty-seven percent of its cases, and in 2022, the Court was unanimous in forty-eight percent of its cases.[4]

Therefore, in most cases, politics does not likely influence the Court’s decisions. As such, in most cases, are the justices basing their decisions on their political preferences? No.

***

However, this does not end the inquiry. In the relatively small number of cases that involve divisive social issues, whether the Court’s decisions were political depends on your perspective.  For example, many conservative legal scholars would consider Griswold v. Connecticut, Roe v. Wade, and Obergefell v. Hodges to be political decisions, because in their view they were based on an interpretation of the Fourteenth Amendment that had no basis in the Constitution’s text, and that resulted in outcomes consistent with the liberal majority’s policy views regarding contraception, abortion, and same-sex marriage. Likewise, many liberal legal scholars would consider Bush v. Gore, Dobbs v. Jackson Women’s Health, and Students For Fair Admissions v. Harvard to be political decisions because in each case, the Court’s majority was comprised of conservative justices.

The point is that, in a small number of cases, the justices’ opinions consistently reflect their political views, regardless of whether they are conservative or liberal. Thus, to the extent that the Court is perceived as a political institution, both conservative and liberal justices bear some blame. Consider the following:

• Would Justice Elena Kagan, Justice Jackson, or Justice Sotomayor ever vote to restrict access to abortion?
• Would Justice Thomas or Justice Alito ever vote to restrict when the death penalty can be imposed?
• Would Justice Sotomayor and Justice Jackson ever vote to invalidate an affirmative action policy?
• Would Justice Thomas or Justice Alito ever vote to restrict partisan gerrymandering?
• Would Justice Kagan or Justice Sotomayor ever hold that the Constitution does not protect the right to same-sex marriage?

The answers to these questions should be obvious.

To make matters worse, when the political affiliations of the Court’s members change, the Court’s view of the Constitution – and fundamental rights – often changes. For example, for nearly fifty years, Roe v. Wade, where the Court held that the right to privacy encompasses a woman’s choice to terminate a pregnancy (in most instances), was considered settled law, particularly after the Court in Planned Parenthood of Southeastern Pennsylvania v. Casey reaffirmed Roe’s central holding. But after Justice Kavanaugh replaced Justice Kennedy, and Justice Barrett replaced Justice Ginsburg, the Court in Dobbs overturned Roe and suddenly discovered that the Constitution did not protect a right to abortion.

Why was Roe overturned? Because the Court now had more conservative than liberal members. One must wonder how the majority could not possibly realize that their decision would be perceived as purely political. The same goes for the justices who voted in Roe to find that the Constitution protects the right to terminate a pregnancy – a right found nowhere in the Constitution.

Cases such as Roe, Obergefell, and Dobbs show why the Court is perceived as a political institution and why its institutional legitimacy is affected negatively. Indeed, when the Court accepts for review cases involving issues such as abortion or the death penalty, most people know exactly how the justices will vote. They know that the justices will reach outcomes that so conveniently comport with their policy preferences. That is the reality, and even if it is not accurate, it is the perception. And perception is reality.

Additionally, conservative and liberal media commentators worsen the situation because they report on only the most controversial cases and, depending on the result that the Court reaches, promote the distorted perception that the Court is primarily a political institution. This is a recipe for undermining the Court’s legitimacy.

Ultimately, in Griswold, Roe, Obergefell, and Dobbs, were most justices basing their decisions on their political preferences? Yes.

B.    Solutions to increase public perception of the Court’s legitimacy.

Regardless of the Court’s many unanimous and super-majority decisions, its decisions in cases such as Roe and Dobbs undermined the Court’s legitimacy. Is there a solution that could help to restore that legitimacy? Below are two suggestions.

    1.    Deny certiorari unless the challenged law likely violates the Constitution’s text.

The Court should not grant certiorari unless a challenged law likely violates the Constitution’s text – not its “penumbras” or whatever unenumerated “right” that the substantive due process might invent. For example, in Citizens United v. FEC, did the First Amendment’s text clearly support the invalidation of a statute that strived to reduce the influence of money on federal elections? In Clinton v. New York, did the Presentment Clause clearly support invalidating the Line-Item Veto Act, which sought to reduce wasteful government spending? In Kennedy v. Louisiana, did the Eighth Amendment clearly prohibit the imposition of the death penalty for individuals who raped children under the age of twelve? In Roe v. Wade, did the Fourteenth Amendment clearly prohibit states from prohibiting abortion?

The answer is no.

So why did the Court decide these issues for an entire nation, often by a 5-4 vote? Your answer is as good as mine. Unless you believe that the Court should be guided by “evolving standards of decency that mark the progress of a maturing society.”[5]

When the Constitution is ambiguous and subject to alternative interpretations, the Court should not intervene. It should allow the states to resolve these issues democratically or, in the case of federal legislation, defer to the coordinate branches. When nine unelected and life-tenured judges decide an issue for an entire nation, especially by a 5-4 margin where the majority’s decision so conveniently aligns with the justices’ political beliefs, you have a recipe for disaster.

If you believe that this suggestion is unwise, consider Chief Justice Roberts’ opinion in National Federation of Independent Investors v. Sebelius and what may have motivated his decision.

    2.    Require a six-vote super-majority to overturn a lower court decision.

When the Court decides cases by a 5-4 vote, and those votes reflect little more than partisan division, that decision is likely to undermine the Court’s legitimacy. Put differently, should the law for an entire country depend on a one-vote majority at the Court, where those votes align with each justice’s policy preferences? No.

Instead, to overturn a lower court decision, the Court should be required to reach a six-vote super majority. Doing so would encourage compromise, consensus, and moderation, and lead to incremental, not drastic changes in the law. And it would prohibit a bare liberal or conservative majority from changing the law for an entire nation, particularly on divisive social issues. Indeed, had a six-vote supermajority been in effect when Dobbs was decided, abortion would still be legal until fifteen weeks of pregnancy. If a six-vote supermajority had been in effect when Citizens United was decided, money would likely not have the corruptive influence in politics that it does today.

Some might argue that this approach would prevent the Court from resolving circuit splits on matters of public importance. So what? There are many circuit splits where the Court denies certiorari, thus leaving them unresolved. We should not pretend that the Court’s responsibility is to resolve every circuit split or injustice that affects the country because the reality is quite the opposite. Furthermore, if there is a circuit split, such that the law is interpreted and applied differently in different states, why is that necessarily undesirable? This is already the norm, not the exception, and the incredibly small number of cases that the Court decides each term has only a marginal impact on that reality. And if you believe that the Court should defer to democratic choice at the state and federal level when the Constitution is ambiguous, a six-vote supermajority requirement would facilitate achieving that objective – as would an originalist approach to constitutional interpretation.

If the Court had less power, and intervened less often, the people, not nine unelected justices, would have “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[6]

***

Attacks on the Court’s legitimacy reflect little more than disagreement with decisions that conservatives or liberals do not like. As Justice Kennedy stated, “[a]n activist court is a court that makes a decision you don't like.”[7] The conservative and liberal media – and politicians – do a terrible disservice when they attack the Court with inflammatory comments that influence the public’s perception of the Court’s legitimacy. Having said that, if the Court wants to shed the perception that it is a political institution, it should stop deciding cases that are so politically divisive. Along with a super-majority requirement, this will help to insulate the Court from attacks on its legitimacy, however unfair such attacks may be.

 

[1] PolitiFact | Despite popular misconception, Supreme Court 9-0 rulings are not that rare

[2] See id.

[3] See id.

[4] Michael D. Berry, The Numbers Reveal a United Supreme Court – And a Few Surprises (Aug. 2, 2023), available at: The Numbers Reveal a United Supreme Court, and a Few Surprises | The Federalist Society (fedsoc.org)

[5] Trop v. Dulles, 356 U.S. 86 (1958).

[6] Lawrence v. Texas, 539 U.S. 558 (2003).

[7] CBS News, Justice Kennedy: Senators Focus on Short-Term (May 14, 2010), available at: Justice Kennedy: Senators Focus on Short-Term - CBS News

A Font by Any Other Name Does Not Read the Same

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

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

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

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

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

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

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

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

How To Change Someone's Mind

It is not easy to convince a judge (or any audience) to adopt your point of view, especially when the audience has a firmly entrenched and opposing opinion. Below are a few tips that can maximize the persuasive value of your arguments and enhance your likelihood of success.

1.    Craft a powerful story by showing, not telling.

People are captivated by powerful narratives.

When making an argument, focus on the facts of your case and tell a compelling – and concise – story in which you demonstrate that a result in your favor would be the most fair, just, and equitable outcome. Think of your argument like a fiction book or a movie, in which you do the following:

• Begin with a powerful opening theme that hooks the audience.
• Provide the audience with the necessary background facts while omitting irrelevant or extraneous facts.
• Use the Rule of Three to structure your argument by providing the audience with three reasons justifying your position.
• Emphasize the most favorable facts that support your argument.
• Never ignore unfavorable facts; instead, explain why they do not affect the outcome you seek.
• Use active verbs and vivid descriptions to enable the jury to visualize the story in their minds.
• Whether in writing or during an oral argument, adopt a composed, mature, and confident demeanor and avoid unnecessary emotion, drama, or over-the-top language.
• Put yourself in the shoes of your audience and craft your story based on, among other things, the questions and concerns that you expect will arise.

Consider the following examples involving a defamation claim.

Example 1: “In this case, the defendant made defamatory statements about the plaintiff and those statements caused the plaintiff to suffer damages. As we will show, the statements meet the definition of defamation under the relevant legal standards, and no defenses are available that can excuse or otherwise justify the defendant’s statements. We will demonstrate by a preponderance of the evidence that the statements were defamatory and that the plaintiff is entitled to recover damages.”

This statement is about as bland as it gets. Furthermore, it does not show the court anything. For example, it does not identify the precise statements that were defamatory, detail to specific reputational harm suffered, or explain why any potential defenses lack merit. It merely tells the court what happened and tells the court what to do. That is not persuasive at all.

Example 2: “The First Amendment is not a license to destroy a person’s reputation. On January 21, 2024, the plaintiff, Sharon Connor, who is the owner of Health Foods Market in the small town of Seashore, New Jersey, awoke at 6:30 a.m. and turned on her computer to respond to emails from several of her employees. One of those emails informed Sharon that, on the website, www.trashmyemployer.com, an employee whom Sharon recently terminated after three consecutive negative performance reviews had posted degrading and demeaning comments about Sharon. They included the following: “Sharon is a Nazi sympathizer;” “Sharon discriminates in the hiring process based on a person’s ethnicity and religious beliefs;” “Sharon artificially inflates prices and mocks the customers for being too stupid to notice;” and “Sharon treats her employees so badly that they are routinely traumatized after leaving work.” In Seashore, New Jersey, a small town where ‘everybody knows your name,’ Sharon was ridiculed, insulted, and ostracized from the community that she had called home for thirty years. She lost friends. Her business has suffered a thirty-five percent decline in profit. And twenty-five percent of her employees have quit. In short, this case implicates precisely what defamation law is designed to protect: a person’s reputation.”

This example is certainly not perfect, but you get the point. It begins with a theme. It tells a story by offering specific and vivid details. Additionally, it shows (not tells) the court why it should rule in the plaintiff’s favor. As such, it is far more persuasive than the first example.

Judges (and most people) do not like to be told what to do or how to think. Rather, they want you to give them the facts in a way that enables them to reach the most fair and just outcome.

2.    Obtain agreement over common values.

When addressing an audience, you are more likely to persuade the audience to rule in your favor if the audience agrees with the common values that undergird your argument. Indeed, when you and your audience, such as a judge or jury, begin a discussion from a point of agreement rather than contention, your likelihood of reaching a positive outcome or, at the very least, a reasonable compromise, increases.

Consider the following hypothetical example of an advocate trying to convince a hostile judge to adopt his or her position that the Constitution does not protect a right to abortion:

Example 1: “Your Honor, the Constitution says absolutely nothing about abortion, and the Supreme Court’s jurisprudence establishing a right to abortion is deeply flawed. The fact is that abortion involves the killing of human life, and it has nothing to do with a woman’s bodily autonomy. Sanctioning the murder of human life is antithetical to every value upon which this country is founded, and women should know that when they get pregnant, they are responsible for a life other than their own.”

This argument is so awful that it will alienate the judge and ensure that you lose. No one likes to be talked down to in such a condescending manner and told that they are wrong. Advocates who adopt such categorical positions are likely to be viewed as ignorant of the complexities that legal issues invariably present. Moreover, the argument is so politically charged that even the advocate’s most ardent supporters might question the advocate’s competency.

Example 2: “Your Honor, the decision whether to have an abortion is deeply personal and private. And we certainly respect a woman’s right to make that difficult decision in consultation with a woman’s health care provider. Our argument is not about the morality of having an abortion. Rather, it is simply about giving the people of each state the authority to decide whether abortion should be legal in their state. Some states may allow it; some may not. But at the end of the day, this is a decision to be made by the people of each state, not nine unelected judges.”

In this example, which is again not perfect, the advocate recognizes that abortion is a complex issue that is deeply personal and private to the individual. Also, the advocate is not denying the fundamental proposition that a woman should have the right to make this decision. Instead, the advocate is arguing that citizens, not the Court, should have the authority to determine the legality of abortion, which will almost certainly guarantee that abortion will be legal in many, if not most, of the states. Of course, this will still upset many abortion supporters, but at the very least it will demonstrate that you are not fundamentally opposed to abortion itself.

This is not to say, of course, that you will win by taking the latter approach. But you will have a more persuasive impact, maintain your credibility, and possibly get the swing justice(s) to rule in your favor or agree to a compromise.

3.    Show that you have empathy and maturity.

Excellent advocates show empathy for an opposing view, recognize the reasonableness of the opponent’s position, and acknowledge the nuances that most legal issues present. Indeed, people have different views based on their experiences and backgrounds. Displaying empathy for opposing views enhances your credibility, makes you likable, and shows that you possess humility and maturity.

Consider the following examples regarding an argument over whether the death penalty should be authorized for the rape of a child.

Example 1: “Your Honor, killing a defendant for the crime of child rape makes no sense whatsoever. The victim in this case is not dead. The victim will fully recover, and because the victim is only ten, will go on to lead a long and productive life. For these reasons, imposing the death penalty on the defendant, who has never killed anyone, is grossly disproportionate to the crime, and permitting the state to murder a child rapist is worse than the act of child rape itself. Anyone who advocates otherwise shows little regard for the sanctity of human life.”

That argument is so bad that even those who may agree with your position may be turned off by the sheer lack of empathy and insensitivity to the gravity of such a horrific crime. It will also likely offend anyone who supports the argument that you just attacked, particularly the victim’s family. And if you make this argument to a jury, you will alienate the jury and come off as an insensitive jerk.

Example 2: “Your Honor, raping a child is a horrific crime. Few words could capture the trauma and devastation that such a heinous act causes and anyone who commits such a crime should be subject to severe punishment. Our position is not that the defendant should not be punished, but rather that the death penalty, given the Court’s jurisprudence, is not the appropriate punishment. Instead, we respectfully submit that sentencing the defendant to life imprisonment without parole will reflect both the proportionality of the offense committed and impose the punishment deserved.”

This argument is better because it empathizes with the victim, acknowledges the irreparable harm caused, and recognizes that severe punishment is warranted. Furthermore, the alternative punishment proposed is reasonable given the gravity of the offense. Ultimately, having empathy shows that you have maturity, compassion, and humility. So make sure that you are respectful and measured and that you never demean an adversary, the court, or the victim of a crime. Instead, conduct yourself with class, dignity, and civility, and realize that most rational people despise jerks. No one likes narcissists. No one likes people who are condescending or insufferable loudmouths.

4.    Focus on the consequences of adopting a particular position.

Judges and juries are human beings. They are not robots. They want to reach outcomes that they believe are just and fair.

As such, they do not mindlessly apply the law without any regard for the present and future consequences that will result from a decision or a verdict. This is especially true given that, in most cases, precedent does not provide a clear answer to a current legal question, and considering that, in many instances, a law or constitutional provision is ambiguous and capable of different interpretations.  Thus, when trying to persuade a court, do not simply engage in a hyper-technical legal analysis that shows no appreciation for the real-world consequences of a ruling in your favor.

Consider the following examples concerning two advocates who are arguing that law enforcement officers should not, under the Fourth Amendment, be allowed to search a suspect’s cell phone incident to arrest.

Example 1: “Mr. Chief Justice, and Members of the Court, the Court’s search incident to arrest jurisprudence makes clear that the primary purpose of warrantless searches incident to arrest is to preserve evidence and protect officer safety. Although the Court has expanded the search incident to arrest doctrine to include searches of closed containers and passenger compartments, it has never applied the doctrine to cellular telephones. And for good reason. Warrantless searches of cell phones do not implicate evidence preservation or officer safety. Thus, expanding the doctrine to include cell phones would completely unmoor the search incident to arrest doctrine from its original purposes and finds no support in the Court’s precedent.”

This argument is not terrible, but it misses the point. The Supreme Court has the authority to limit or expand precedent whenever a majority votes to do so. The Court also has the authority to overrule, disregard, or distinguish its precedent. Thus, the Court will be less concerned with strictly adhering to its precedent and more with the real-world consequences of its decision on future cases involving warrantless searches incident to arrest.

Example 2: “Mr. Chief Justice, and Members of the Court, the original purpose of the Fourth Amendment was to protect citizens’ private papers and effects, which at that time were stored in the home, from unreasonable and warrantless searches. Indeed, the privacy protections that lie at the heart of the Fourth Amendment – and this Court’s jurisprudence – are sacrosanct, and this Court has exercised circumspection when permitting warrantless searches into citizens’ private space. That principle is at issue – and under attack – today because, in the Twentieth Century, cell phones house the private papers and effects that, at the time of the Fourth Amendment’s adoption, were traditionally stored in the home. Cell phones store, among other things, personally identifying information, private photographs, financial information, email and text messages, internet browsing and purchasing history, and personal contacts and telephone numbers. To permit law enforcement to search a cell phone without a warrant in the Twentieth Century is equivalent to permitting law enforcement to search homes without a warrant in the Eighteenth Century. It would permit vast and suspicionless intrusions into private spaces and property and allow the types of warrantless fishing expeditions that the Fourth Amendment and this Court’s jurisprudence prohibit. In essence, privacy rights would become a thing of the past, and warrantless searches into the most private aspects of a citizen’s life would be a thing of the future. It would, simply stated, render the Fourth Amendment meaningless.”

This argument, while again not perfect, is more effective because it brings to the Court’s attention the real-world consequences of a decision allowing warrantless searches of cell phones incident to arrest. And those consequences would be substantial. Privacy rights would be significantly weakened, and law enforcement would be permitted to do exactly what the Fourth Amendment prohibits: warrantless and suspicionless searches of a citizen’s most private information. Faced with such consequences, it should come as no surprise that in Riley v. California, the Court held unanimously that warrantless searches of cell phones incident to arrest violated the Fourth Amendment.

5.    Listen and do not interrupt.

This requires little explanation.

They often say that those who get their way are the ones who talk the loudest. In other words, intolerable jerks usually get what they want because people will do anything to shut them up. This approach may work in a faculty meeting, but it will not work in a courtroom.

Good advocates know how to talk less and listen more. Being a good listener shows that you have humility. It also enables you to identify the specific concerns that judges have when evaluating the merits of your case and to adjust your argument accordingly. Additionally, it shows that you recognize weaknesses in your argument and are willing to address them thoroughly and explain why they do not affect the outcome you seek.

Consider the following example:

Example: “Your Honor, I respectfully submit that the liberty protected by the Fourteenth Amendment to the United States Constitution encompasses a right to assisted suicide.”

Judge: “Well counsel, when we speak of the liberty protected by the –”

Counsel: “Your Honor the Supreme Court has been clear that the word liberty encompasses substantive rights, and no right is more central to liberty than having the right to determine the manner and method by which one dies.”

Judge: “I understand that, but what I’m trying to determine is if the liberty protected must be –”

Counsel: “Your Honor, the Supreme Court has already held that the word liberty protects personal privacy, and nothing could be more private than the decision on when to terminate one’s life.”

Judge: “Let me finish. I am concerned about whether the liberty interests protected under the Fourteenth Amendment must be deeply rooted in history and tradition.”

Counsel: “I apologize Your Honor. I misinterpreted your question.”

This attorney is a moron. The attorney looked foolish and unprofessional and was so oblivious that the attorney stated that the question, which the attorney never allowed the judge to ask, was misinterpreted. Doing something like this will destroy your credibility, infuriate the judge, and make it all but certain that you will lose your case.  It will also ensure that, if married, your partner will divorce you.

***

Presenting a persuasive argument requires you to use techniques that connect with your audience on a personal level and that convince the audience that your argument leads to the fairest and most just outcome. Using the techniques above will help you maximize your argument’s persuasive value and your likelihood of success.

Justices, Not Judges

This past week, I had the privilege of opening the Mid-Year Conference of the California Judges Association with a speech about the rule of law and how we can preserve it. The topic was one the group requested, and it provided me with a welcome opportunity to consider the indefinite meaning of the rule of law without specific laws it seeks to establish as the normative structures of society, its malleability throughout our nation’s history, and the many revolutionary ways it has changed and will likely change in the future.

In this post, however, I do not plan to get into that heavy subject, but instead relate an anecdote about one oral argument at the Supreme Court that exemplifies how the rule of law is really a rule of acceptable norms, not necessarily law itself. I opened my remarks with this story.

When one argues a case at the Supreme Court, upon checking in, you are handed two cards, slightly larger than a business card. One provides a kind of aerial view of the bench, showing the curved bench with boxes depicting the array of the justices, the positions of the marshal and clerk, and the place of counsel at the podium. Each person is depicted as a number, and a legend indicates who each number represents. It provides you with a reminder of where each justice sits.

A second card serves two purposes. One purpose is as an admission ticket that lets court personnel in the courtroom know that you belong at counsel’s table as counsel in a specific case. It also has three instructions. First, it reminds you that you should not speak until acknowledged by the chief justice. Second, it tells you that you should not introduce yourself but begin with the familiar, “May it please the Court, …” And, finally, it says that if you address a member of the Court, it should be as “Chief Justice” or “Justice …,” not judge, with that word italicized on the card.

More than 20 years ago, a novice violated the last of these admonitions, not once, but three times, possibly due to nerves. In response to questions from Justice Kennedy and then Justice Souter, she addressed them as judges. Each time, then-Chief Justice Rehnquist corrected her by saying that’s “Justice ______.” No doubt, the cognoscenti in the courtroom silently clucked at such a faux pas by an advocate. Not long afterwards, however, she compounded these episodes by calling the chief justice “judge.” Rehnquist then said, “Counsel is admonished that this Court is composed of justices, not judges.

Stunned and chastened, the advocate hesitated to say another word, but Justice Stevens interrupted, as he was often prone to do to make counsel more comfortable. He said, “It’s OK, Counsel. The Constitution makes the same mistake.”

Indeed, the Constitution, in Article III, refers to “judges” of the supreme and inferior courts as holding office during good behavior – the only other mention of a member of the Supreme Court is in the impeachment article, where it states that the “Chief Justice” shall preside when the president is subject to an impeachment trial.

Even if the Constitution designates members of the Supreme Court as “judges,” no advocate will ignore the norm that members of that court are called justices, and the card advocates receive continue to tell them not to use the word “judge.” Even though the Constitution is the “supreme law of the land,” it does not supply the rule of law when addressing the Court. Instead, another norm does. That means that while we venerate the rule of law and some of the Court’s end-of-the-term rulings may have many questioning what happened to the rule of law, the admiration and allegiance we hold to the concept reflects only our personal perceptions about the substance of law and how we legitimately determine that substance. Keep that in mind as you review the momentous decisions we expect from the Court this term, and when you ask any appellate court to reach a decision.

Lessons in Appellate Advocacy from the Supreme Court's Oral Argument in Trump v. United States

The recent oral argument before the United States Supreme Court in Trump v. United States, which concerns presidential immunity, provides several lessons about how to argue a case effectively and persuasively. Although the attorneys for the petitioner and respondent used their persuasive advocacy skills to varying degrees of effectiveness, both did so very competently and demonstrated why they are elite advocates. Below are a few lessons in advocacy that were on display at the oral argument.

1.    Have a strong introduction.

Make a great first impression with a strong introduction.  Begin with a powerful opening theme. Tell the court precisely what remedy you seek. And explain why, in a structured and organized way, the Court should rule in your favor. For example, use the Rule of Three, namely, provide the Court with three reasons that support your argument and the remedy sought.

In Trump, the lawyers for the petitioner and the respondent had effective and persuasive introductions. They opened with a strong theme. They got to the point quickly. They explained in detail and with specificity why the Court should rule in their favor. Doing so enabled both lawyers to, among other things, start strong, gain credibility with the Court, and frame the issues in a light most favorable to their side.

2.    Answer the Court’s questions directly and honestly.

Regardless of how persuasive your introduction is, the justices will express concerns about various legal, factual, or policy issues that impact the strength of your case. Thus, when the justices ask questions, particularly those that express skepticism of your argument, view it as an opportunity to address the justices’ concerns and present persuasively the merits of your position. In so doing, make sure to always answer the questions directly and honestly, as any attempt to evade the questions will harm your credibility. Additionally, if necessary, acknowledge weaknesses in your case (e.g., unfavorable facts or law), and explain why those weaknesses do not affect the outcome you seek. Also, be sure never to react defensively in response to a question; instead, act like you expected the question and use the question to enhance your argument’s persuasiveness.

During the oral argument in Trump, the lawyers for the petitioner and respondent were well-prepared, answered the Court’s questions effectively, and conceded unfavorable facts where appropriate. As a result, they maintained their credibility and enhanced the persuasive value of their arguments.

3.    Speak conversationally and confidently.

During oral argument with an appellate court, particularly the U.S. Supreme Court, adopt a conversational tone and confident demeanor. Recognize that the Court is trying its best to reach a fair result that is consistent with the law and the facts. The law and facts, however, often do not dictate a particular outcome, and sometimes judges are left with little more than a desire to reach what they believe will be the best result. Indeed, judges are human, and when they return home after a long day, and their partner asks how their day was, the last thing judges want to say is “Well, I decided several cases that led to horrible outcomes. Other than that, it was a wonderful day.”

As such, your role, while advocating zealously for your client, should be to have a conversation with the Court in which you acknowledge the Court’s concerns and the policy implications of the outcome you seek, and convince a majority of the justices that the result you seek is fair and equitable. Put differently, while you must advocate zealously for your client, you should also display some degree of objectivity that shows an awareness of, among other things, opposing points of view and weaknesses in your case.

During oral argument, both advocates spoke conversationally and confidently and never appeared uncertain, surprised, or equivocal. Projecting confidence is critical to maximizing the persuasiveness of your argument, and speaking conversationally ensures that you can communicate your argument effectively.

4.    Be mindful of your pacing, tone, and non-verbal communication.

It is not just what you say. It is how you say it. Thus, when making an argument, be sure not to speak too quickly. Do not use over-the-top language or attack your adversary. Use strategic pauses to thoughtfully respond to the Court’s questions and transition effectively to different arguments. Never show frustration, surprise, or combativeness in response to a question. Instead, show that you are a composed and thoughtful advocate who listens well, and forms reasoned responses to difficult questions.

Also, be mindful of your non-verbal communication, including your appearance, body language, facial expressions, posture, eye contact, and hand gestures, as non-verbal communication can enhance or detract from the persuasiveness of your argument.

During the oral argument, both advocates avoided speaking too quickly and rushing through their points. They never displayed a combative and adversarial tone. They spoke clearly and articulately, and in a manner that made their arguments straightforward, organized, and easy to understand.

5.    Adjust your argument strategy based on the Court’s questions.

When you begin an oral argument, you know what points you want to emphasize. But the justices may want to discuss other things, and a good advocate recognizes this and adjusts accordingly.

Consider the following example:

Advocate: Your Honor, the warrantless search of the suspect’s house in this case did not violate the Fourth Amendment because the victim’s body was visible to the officer and therefore the search falls within the plain view exception to the warrant requirement.

Justice: But counsel, the officer was unlawfully on private property when she saw the victim’s body, rendering the plain view exception inapplicable. However, it seems that the exigency exception applies because the victim was still breathing, although gravely injured when the officer encountered the victim and entered the home.

Advocate: Your Honor, the plain view exception applies because the officer was on public, not private, property, and as a result, it applies squarely to this case.

Justice: Well let’s assume that I conclude that it was private property. Doesn’t the exigency exception apply?

Advocate: Your Honor, this was public property. The plain view exception is clearly applicable.

***

The advocate’s performance in this colloquy was simply awful.

The justice is unquestionably signaling to the advocate that he or she believed that the exigency, not the plain view, exception to the Fourth Amendment applied to justify the warrantless search. But the advocate, for some reason, did not perceive or simply ignored this and adhered rigidly to his or her argument. That can be a fatal mistake. As stated above, although you may want to emphasize specific points, the justices may not care about those points and instead want to discuss other issues that, in their view, may be dispositive. When that happens, adjust your strategy in the moment and respond to the justices’ concerns. Do not be afraid to abandon your oral argument strategy if, as the argument unfolds, it becomes clear that the case will be decided on facts, law, or policy considerations that you did not anticipate.

During the oral argument, nothing like this occurred because the lawyers for the petitioner and the respondent were far too skilled, intelligent, and experienced to make this mistake.

6.    Be aware of the dynamics in the room and realize that there is only so much you can do.

Judges often have opinions on how to decide a case after reading the parties’ briefs and before the oral argument. Although oral argument can, in some instances, persuade the justices to reconsider their views, oral argument sometimes consists of the justices trying to convince each other to adopt their respective positions, without much regard for what you have to say.

Put simply, sometimes the outcome is preordained. For example, in Trump v. Anderson, it was obvious early in the oral argument that the Court would overturn the Colorado Supreme Court’s decision holding that former President Trump was not eligible to be on Colorado’s primary ballot. If you are faced with this situation, realize that all you can do is make the best possible argument, knowing that losing the case is not a reflection of the quality of your advocacy but rather a reflection of the justices’ predetermined views. In Trump v. Anderson, for example, Jason Murray, the attorney representing the respondents, did an excellent job of making a credible argument despite the obvious fact that the Court would not rule in his favor.

Also, realize that you are not a magician or a miracle worker. Judges can have strongly held views and the results that they reach sometimes have little, if anything, to do with what you said or did not say during an oral argument. If you are arguing that Roe v. Wade was correctly decided and should be reaffirmed, nothing you say is going to convince Justices Thomas or Alito to adopt your position. Likewise, you are not going to convince Justice Sotomayor that affirmative action programs are unconstitutional. You are also not going to convince Justice Alito that the substantive due process doctrine should remain vibrant in the Court’s jurisprudence. Knowing this, focus on the justices that are receptive to your argument, particularly the swing justices, and tailor your argument to their specific concerns. And, if they ask ‘softball’ questions, be sure to seize that opportunity to make your case persuasively because they are using you to convince the swing justices.

Surely, during oral argument, the lawyers for the petitioner and the respondent knew which justices were receptive to their arguments, which were hostile, and which were undecided. And they addressed swing justices’ questions effectively and persuasively.

7.    Be reasonable.

If you want to retain your credibility, make sure that your argument – and the remedy you seek – is reasonable. Advocating for an extreme or unprecedented result that departs significantly from the Court’s jurisprudence, or that leads to a terrible policy outcome, will get you nowhere. For example, during the oral argument in Trump, Justice Sotomayor asked counsel for Trump whether his argument for absolute presidential immunity would allow a president to assassinate a political rival. Trump’s counsel responded by stating that it would depend on the hypothetical and could constitute an “official act,” thus triggering absolute immunity. Most, if not all, judges would reject this argument because it is simply ridiculous to contend that a president could assassinate political rivals with impunity.

Thus, be reasonable when presenting your arguments and requesting specific remedies. Every argument has weaknesses that those with different perspectives will expose. As such, in most cases, avoid absolute or categorical positions that eschew nuance and that prevent the Court from reaching a compromise. Doing so will enhance your credibility and show that you recognize the complexities of the legal issue before the Court.

During the oral argument, the attorney for Trump, although very skilled, arguably advocated for an unreasonable outcome, namely, that the president is always immune from prosecution for official acts done while the president is in office. The problem with this argument, as Justices Sotomayor, Jackson, and Kagan emphasized was that it would allow a president to engage in a wide array of criminal conduct, including the assassination of a political rival, with impunity. That result is simply not reasonable and consistent with the principle that no person is above the law. A better strategy may have been to adopt a more nuanced argument that recognized when, and under what circumstances, presidential immunity should apply, and to give the Court a workable test to distinguish between official and private acts. Adopting an unreasonable position detracted from the persuasiveness of Trump’s argument, and the Court signaled that it would reject this extreme, all-or-nothing approach.

8.    Realize that nothing you do is as important as you think.

Whether you win or lose, the world will keep turning and the sun will rise tomorrow. Sure, there are incredibly impactful cases, such as Brown v. Board of Education, Bush v. Gore, and Dobbs v. Jackson Women’s Health, which significantly affect the rights and liberties of citizens. Your role in influencing that outcome, however, is often far more insubstantial than what you believe, and inversely correlated to the absurd amount of hours you spent litigating the case. Think about it: do you believe that the oral arguments (or briefing, for that matter) in Brown, Bush, or Dobbs caused any of the justices to change their minds? Why do you think that, in some cases, anyone familiar with the Court can predict how the justices will rule before oral argument even occurs? You should know the answer.

Of course, you should still work extremely hard and hold yourself to the highest standards when arguing before a court. Persuasive advocacy skills do matter, particularly in close cases. However, your ability to affect the outcome of a case or the evolution of a court’s jurisprudence is, in some instances, quite minimal, and your inability to reach the outcome you seek is often unrelated to your performance or preparation. So do not put so much pressure on yourself. Have humility and focus on what you can control – and ignore what you cannot. Doing so will help you to cope with the unpredictable and unexpected outcomes that you will experience in the litigation and appellate process. And remember that no matter what happens, life will go on. You should too. And I suspect that the lawyers for the petitioner and the respondent will do precisely that.

***

Ultimately, what matters is not how many cases you win or how much money you make. What matters is the relationships that you form with other people, which are more important than anything that you will do in the law. So don’t sweat the small stuff, because, at the end of the day, it’s all small stuff.

Absolute Presidential Immunity as an Appellate Strategy

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

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

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

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

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

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

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

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

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

 

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

[2] Id. at 752 n.32.

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

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

Book Review--A Promise Kept

As readers of this blog know, I love a good book.  If the book covers a Supreme Court case it is all the better.  And if it also concerns my maternal ancestors, well I am guaranteed to love it. A Promise Kept: The Muscogee (Creek) Nation and McGirt v. Oklahoma checked all three of those categories (and it had been sitting in my TBR pile for some time). Written by Robert J. Miller, a professor at the Sandra Day O’Connor College of Law at Arizona State University, and Robbie Ethridge, a professor of anthropology at the University of Mississippi, the book is divided into two key parts.

The first part of the book concisely, yet thoroughly, covers the history of the Muscogee Nation, from the Mississippi “chiefdoms” to the towns and provinces that coalesced into the Creek confederacy. Professor Ethridge covers the divisions within the Nation, especially between the Upper and Lower Creeks, and how those divisions impacted the Nation’s removal (both voluntary and involuntary) from our ancestral lands in the South. Finally, the Nation’s history in Oklahoma is addressed, with detailed discussion of the relevant treaties, the allotment period, and ultimately Oklahoma statehood.

I read this part of the book with rapt attention. I was on the plane to Oklahoma City. In a few weeks I would be visiting the Muscogee Nation and the sites where my grandma and her ancestors lived. As I read, I jotted down notes to check when I had Internet service—I wanted to put my own relatives into this story and look at where they predominantly lived in Indian Territory.

The history was extremely easy to read and accessible to non-anthropologists (myself included). I plan on recommending the book to all my relatives.

The second part of the book covers the legal stuff.  It recounts the history of the McGirt case and the relevant precedents that address disestablishment of reservations. It also hypothesizes about issues that Oklahoma will face post-McGirt.  As a lawyer, I enjoyed this part. I especially appreciated the history surrounding the disestablishment cases, and I found the discussion of taxes on the newly re-recognized reservations interesting, especially given my pending trip to Tulsa. I also appreciated how Professor Miller stressed the importance of cooperation between the Nation and Oklahoma.  Shortly after McGirt was decided, I heard Muscogee Principal Chief David Hill speak about the case. From what I can tell, the Tribes in Oklahoma are ready to cooperate, but do want Oklahoma to honor and respect the Supreme Court’s decision and the promises made to the Tribes in Oklahoma. Unfortunately, they haven’t seen the same response from some elected officials in Oklahoma.

I highly recommend this book to all citizens of the Nation and those fascinated with Indian law, history, and sovereignty.

And or Or

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

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

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

        the defendant does not have--

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

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

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

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

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

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

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

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

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

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

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

A Few Thoughts on Judge McAfee's Decision

On March 15, 2024, Judge Scott McAfee denied the defendants’ motion to disqualify Fulton County District Attorney Fani Willis from the case involving the prosecution of former President Donald Trump and other defendants.

Below are a few observations from Judge McAfee’s decision and the hearing.

1.    Judge McAfee should have disqualified Willis.

Given the facts and evidence, Willis should have been disqualified. Her conduct demonstrated an actual conflict of interest and the appearance of a conflict of interest.

First, on January 14, 2024, Willis gave a speech at an Atlanta church that all but accused Trump’s and the other defendants’ lawyers of racism – stating they would play the “race card” – and, in so doing, showed an alarming lack of judgment.[1] Although not mentioning the defense attorneys by name, it was clear who Willis was targeting, and her comments, which could taint the jury pool, were inappropriate and unethical.  It should come as no surprise that Judge McAfee suggested that a gag order may ultimately be necessary to ensure that such conduct does not occur again.[2]

Second, Willis and Wade likely provided untruthful testimony on the witness stand when they stated that their romantic relationship began in 2022. To begin with, Willis’s former friend Robyn Yeartie testified under oath that the relationship began in 2019, which was before Willis hired Wade as a special prosecutor. Additionally, Wade’s former attorney and law partner, Terrence Bradley, exchanged text messages in January 2024 with Ashleigh Merchant, one of the defendants’ attorneys, in which he responded “absolutely,” when Merchant asked him whether the relationship began before 2022 (and offered specific details regarding when it began).[3] It is incomprehensible why Bradley, who previously represented Wade in a divorce proceeding, would communicate with an attorney seeking Willis’s dismissal from the case. And it was equally troubling that, when testifying, Bradley evaded nearly every question, suddenly claiming that he did not recall when the relationship began. Bradley’s text messages, not his dishonest testimony, tell the story.[4]

Also, Wade’s testimony was inconsistent with the answers he provided to interrogatories in his prior divorce proceeding. As Judge McAfee stated, Wade’s “patently unpersuasive explanation for the inaccurate interrogatories he submitted in his pending divorce indicates a willingness on his part to wrongly conceal his relationship with the District Attorney.”[5] Well, if Wade’s explanation that the relationship began in 2022 was “patently unpersuasive,” then Willis’s testimony was too. As they say, what is good for the goose is also good for the gander.

Lest there be any doubt, the defendants provided evidence that, before 2022, Willis and Wade had exchanged thousands of text messages and that Wade was located near Willis’s residence approximately thirty-five times.[6] What’s more, after the hearing, two additional witnesses came forward with information that the relationship began before 2022, but Judge McAfee declined to hear their testimony.[7]

Third, Willis’s claim that she reimbursed Wade in cash for money that he expended on their numerous vacations – while Willis employed and supervised Wade – strains credulity. Indeed, Willis’s explanation for the reimbursements is quite convenient because it ensures that they cannot be traced. And it is odd that a district attorney, who, as a public servant, arguably has an obligation to disclose such reimbursements, would select a method for which no documentation would exist. One would think that, in the interest of disclosure and transparency, Willis would do the opposite.

Judge McAfee summarized Willis and Wade’s questionable conduct as follows:

Even if the romantic relationship began after … Wade’s initial contract in November 2021, the District Attorney chose to continue supervising and paying Wade while maintaining such a relationship. She further allowed the regular and loose exchange of money between them without any exact or verifiable measure of reconciliation. This lack of a confirmed financial split creates the possibility and appearance that the District Attorney benefited - albeit non-materially - from a contract whose award lay solely within her purview and policing.[8]

Judge McAfee almost certainly did not believe Willis and Wade, stating in his opinion that “the General Assembly, the Georgia State Ethics Commission, the State Bar of Georgia, the Fulton County Board of Commissioners, or the voters of Fulton County may offer feedback on any unanswered questions that linger.”[9] That should tell you all you need to know.

Given his findings, how could Judge McAfee conclude that the defense had failed to establish by a preponderance of the evidence that the relationship began before 2022, that Willis was not truthful on the stand, and that Willis should not be disqualified? No one can know the answer to this question, but a few explanations appear likely. Judge McAfee may have been afraid to disqualify Willis because of the far-reaching implications of such a decision. Doing so would have made it highly likely that Trump would not be prosecuted, and that McAfee would face a significant backlash from Fulton County’s legal community and voters. Additionally, considering that Judge McAfee is a new judge in an overwhelmingly liberal county, and married with two children, he may have feared that disqualifying Willis would have threatened his career and safety.

Alternatively, Judge McAfee may have honestly believed that he was reaching the right result because, despite Willis’s and Wade’s unethical conduct, no actual conflict of interest existed. But if the relationship began in 2019 or 2020, which the evidence overwhelmingly suggests, Willis had an actual conflict of interest when she hired Wade, when she chose Wade the lead the prosecution against Trump and the other defendants, when she continued to employ and supervise him, and when she paid him hundreds of thousands of dollars for his services. And Willis’s lack of candor on the stand is itself a conflict of interest because her and Wade’s personal interest in concealing the relationship conflicted with their duty to testify truthfully and disclose that relationship. Under these circumstances, disqualification should be the remedy for precisely the type of egregious and unethical conduct that Judge McAfee cited in his decision.

Whatever the reason, Judge McAfee showed himself to be a careful, thoughtful, and conscientious judge, and his findings regarding Willis’s and Wade’s unethical conduct will surely impact Willis’s ability to remain as the prosecutor going forward.

2.    The prosecution against former President Donald Trump is irreparably tainted.

In his opinion, Judge McAfee criticized Willis for her “tremendous lapse of judgment” and the “unprofessional manner of [Willis’s] testimony,” and concluded that the hearing had an “odor of mendacity” that created the appearance of impropriety.[10] Indeed, Willis’s speech at the church, her previously undisclosed relationship (and vacations) with Wade, her questionable theory of cash-only (and thus untraceable) reimbursements, and her combative testimony under oath, compromised irreparably her credibility and stained the prosecution with an unremovable taint.

For these and other reasons, Willis’s continued involvement in the prosecution will likely undermine the public’s faith in the legal system and the rule of law. As Judge McAfee stated:

As the case moves forward, reasonable members of the public could easily be left to wonder whether the financial exchanges have continued resulting in some form of benefit to the District Attorney, or even whether the romantic relationship has resumed. Put differently, an outsider could reasonably think that the District Attorney is not exercising her independent professional judgment totally free of any compromising influences … The testimony introduced, including that of the District Attorney and Wade, did not put these concerns to rest.[11]

It is deeply troubling that a district attorney, particularly one involved in the very public prosecution of a former president, would behave in this manner, rather than ensure that her conduct was beyond reproach.

In essence, Trump won this hearing even though he did not technically “win.”

3.    The weaponization of the law against Trump threatens to undermine the public’s faith in the rule of law.

If one honestly analyzes the cases and court decisions against Trump, one theme emerges: they are, at least to a degree, politically motivated and reflect personal animus against Trump.

For example, New York Attorney General Letitia James campaigned on the promise that she would target and prosecute Trump. And James brought a lawsuit against Trump under a rarely used statute – and before a decidedly liberal judge – that resulted in an arguably excessive $350 million dollar judgment against Trump.[12] We now live in a country where a prosecutor can openly campaign on and get elected to a position on a pledge to prosecute a specific individual.[13]

Additionally, Willis has been anything but shy about her hatred for Trump. Furthermore, the indictment against Trump – filed in Fulton County, which is overwhelmingly liberal – all but ensures a jury pool consisting of jurors who dislike Trump, much like the jury in Manhattan that awarded E. Jean Carroll eighty-three million dollars in damages for defamation, despite her attorneys seeking only a fraction of that amount.[14]

Likewise, the prosecution against Trump in the District of Columbia, which relates to his conduct on January 6, 2021, will, like in Manhattan and Fulton County, place Trump in an overwhelmingly liberal jurisdiction before an overwhelmingly liberal jury. Moreover, the prosecutors in the pending cases are desperately seeking to begin the trials in advance of the November election. That, again, should tell you all you need to know. The motive for these prosecutions is political, namely, to ensure that Trump loses the election in November.[15]

Regarding recent court decisions, the Colorado Supreme Court’s decision, where four justices (all democrats) held, despite the unambiguous language in Section Five of the Fourteenth Amendment, and the ambiguous language in Section Three, that Trump was an “insurrectionist” and therefore barred from Colorado’s presidential primary ballot, was utterly ridiculous.[16] Not surprisingly, the United States Supreme Court unanimously reversed the Colorado Supreme Court’s decision.

Also, some scholars and media personalities continue to make histrionic and laughable statements that defeating Trump is necessary to save democracy. Former Fourth Circuit Court of Appeals Judge Michael Luttig, for example, consistently foments division and fear by making melodramatic statements, such as that the November election is a struggle for democracy and that democracy’s survival depends on defeating Trump.[17] Well, democracy is not threatened because voters elect someone that you do not like.

4.    Steve Sadow is among the best attorneys in the country. 

Steve Sadow, the lead attorney for Donald Trump, is incredibly talented and among the nation's top attorneys. If law students and young lawyers want to see an example of powerful advocacy, they should look no further than Sadow. Indeed, Sadow eviscerated Terrence Bradley with concise, impossible-to-evade questions that left no doubt that Bradley was being untruthful. And Sadow knows how to craft a question in which he subtly incorporates argument into the lead up to the question, and his forceful and confident tone makes it seem like any answer that a witness gives other than the one Sadow's question implicitly suggests is not credible. 

Additionally, Sadow's preparation is impeccable. His arguments are well-organized, to the point, and delivered with a confidence and authenticity that maximizes their persuasive impact. In short, it's not just what Sadow says, but how he says it, that is so impressive. 

 

***

When Wade resigned as the lead prosecutor, he wrote that he was doing so “in the interest of democracy.”[18] Wade did not resign “in the interest of democracy.” He resigned because he got caught. And when the defendants initially filed their motion to disqualify Willis, she called the allegations in the motion – while under oath -- a lie.[19]  Judge McAfee’s decision demonstrates that the allegations were anything but a lie.

The rule of law, not democracy, is at stake. If prosecutors continue to try to “get Trump,” it will erode public confidence in the rule of law and its leaders.[20] That, and an “odor of mendacity,” is the true threat to democracy.

 

[1] Timothy H.J. Nerozzi, Judge in Georgia Slams Fani Willis’ ‘Improper’ Church Speech, ‘Playing the Race Card,’ (March 15, 2024), available at: Judge in Georgia slams Fani Willis' 'improper' church speech, 'playing the race card' (fox5atlanta.com)

[2] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[3] Srah Fortinsky, Ex-divorce lawyer Key Texts on Willis-Wade Relationship Were Speculation (Feb. 27, 2024), available at: Ex-divorce lawyer: Key texts on Willis-Wade relationship were speculation | The Hill

[4] See id.

[5] State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[6] See Nick Wooten, Trump Attorney: Cell Phone Data Could Show that Fani Willis Nathan Wade Lied About Relationship Timeline Feb. 23, 2024), available at: Phone data calls into question Wade-Willis relationship timeline | 11alive.com

[7] See Jason Morris, et al., Georgia Judge Asked to Allow New Testimony from Witnesses Who Allegedly Have Information on Willis-Wade Relationship (March 5, 2024), available at: Georgia judge asked to allow new testimony from witnesses who allegedly have information on Willis-Wade relationship | CNN Politics

[8] See State of Georgia v. Donald John Trump, et al. (March 15, 2024), available at: 151-ORDER-03-15-2024 (fultonclerk.org)

[9] Id.

[10] Id. (brackets added).

[11] Id.

[12] See Adam Reiss and Dareh Gregorian, Judge Fines Donald Trump More Than 350 Million, Bars Him from Running Businesses in N.Y. for Three Years (Feb. 16, 2024), available at: Judge Engoron fines Trump more than $350M, bars him from running businesses in N.Y. for 3 years (nbcnews.com)

[13] See Associated Press, NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (Sept. 28, 2023), available at: NY Attorney General Letitia James Has a Long History of Fighting Trump and Other Powerful Targets (usnews.com)

[14] See Lauren Del Valle, Jury Finds Trump Must Pay 83.3 Million to E. Jean Carroll (Jan. 26, 2024), available at: Trump must pay $83.3 million to E. Jean Carroll, jury says (cnn.com)

[15] The case against Trump in Florida, involving Trump’s alleged refusal to turn over classified documents, is arguably the most meritorious of those brought against Trump.

[16] See Trump v. Anderson, 2023 CO 63, available at: 23SA300.pdf (state.co.us)

[17]  See Shauneen Miranda, Former Pence Legal Aide: Trump’s Hold on the GOP Puts Democracy ‘In Grave Peril’  (Aug. 9, 2023), available at: Former Pence legal aide: Trump’s hold on GOP puts democracy “in grave peril” (axios.com)

[18] The Hill, Nathan Wade’s Resignation Letter (March 15, 2024), available at: READ: Nathan Wade’s resignation letter | The Hill

[19] See Kaitlyn Lewis, Fani Willis Says Lawyer ‘Lying’ During Disqualification Hearing (Feb. 15, 2024), available at:  Fani Willis Says Lawyer 'Lying' During Disqualification Hearing (newsweek.com)

[20]  See Alan Dershowitz, Get Trump: The Threat to Civil Liberties, Due Process, and Our Constitutional Rule of Law (Hot Books, 2023).

Oral Argument and Proper Preparation

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

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

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

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

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

 

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

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

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

Lessons in Advocacy from the Trump v. Anderson Oral Argument

Oral argument in Trump v. Anderson, the ballot eligibility case from Colorado pending in the Supreme Court, received enormous public attention – as well as attention from other contributors to this blog. Regardless of what you think of the merits of the case (I filed an amicus brief on behalf of Professor Kermit Roosevelt of the University of Pennsylvania Law School that I will describe at the end of this post), the pre-argument assessment of the University of Texas law professor Steven Vladeck seemed accurate: constitutional law was likely to give way to constitutional politics. In this post, however, I want to focus on the oral argument. Despite how well the advocates did on many levels, the difficulty of the case and the predisposition of the justices made some responses surprisingly insufficient.

Former President Trump’s counsel, Jonathan Mitchell, benefited from a heavy dose of softball questions – and little follow up as it became obvious early on that he would prevail, even if not on any ground he argued. He had chosen to rely heavily on the argument that the presidency is not an office subject to disqualification under the Fourteenth Amendment. Justice Kagan prefaced one question by declaring that she could think of many good reasons why those who wrote Section 3 would want to cover the presidency, but wanted to know what rationale would support exclusion of it as a policy choice.

Mitchell’s response admitted that no good rationale exists to exclude the presidency but that the language probably represented some unknown compromise. He added, “In a compromise, everyone goes away miserable,” but that we have to follow the text, which he claims supports his view.

That response seems wholly unsatisfactory, built, as it is, on speculation that deserves no credit. As Mitchell otherwise conceded, “one would think, of all offices, the presidency would be the one you’d want to keep out the Confederate insurrectionists. That’s the commander-in-chief of the Army.” Amicus briefs from history scholars established that the presidency was covered – and that no one supported a different view. Yet, Mitchell’s shrugging response got no pushback or further exploration by any justice. For a majority on the Court that usually insists on original public meaning, Mitchell’s explanation should have sounded hollow. The justices were similarly uninterested in diving deeper into the claim that it was impossible to assign a meaning to the term “insurrection.”

Jason Murray, who represented the voters who sought to knock Trump off the ballot in Colorado, faced a hostile bench. It is always difficult to respond to a Court set on reaching a result contrary to your position, even when the judges struggle to find a common rationale. Yet, one premise behind questions raised by Justice Kagan and Chief Justice Roberts required a response, where none was given. Both members of the Court stated as a fact that it would seem odd that the Fourteenth Amendment, intended to restrict the States, would empower a State to disqualify a presidential candidate, which then led them to raise difficult questions about state authority, which provides the most likely ground for reversal.

Murray did not challenge the underlying premise of their questions, however – and he should have. Certainly, to the extent that the Fourteenth Amendment imposed the privileges and immunities of national citizenship on States, required them to observe equal protection and due process, and, eventually, comport their actions with the Bill of Rights, the Fourteenth Amendment can be seen as restricting on State authority. However, at the same time, the Amendment empowered the state courts to enforce those same rights. A state court does not require congressional approval before it finds that a law or government action, federal or state, violates equal protection or due process. Why would that expectation be any different for any other part of the Fourteenth Amendment, including its disqualification clause? The Constitution always expected state judges and state courts to abide by the supreme law of the land and enforce its requirements. The extension of rights in the Fourteenth Amendment also necessarily empowered state courts to enforce it.

Moreover, as amorphous as the concept of due process remains after centuries of precedent stretching back to Magna Carta, why would state courts have any greater difficulty interpreting “insurrection” and applying it without congressional guidance. Yet, if congressional guidance was needed to assist with determining whether January 6 and Trump’s role in it amounted to insurrection, ample expression of congressional thinking, both at the time of the Fourteenth Amendment’s ratification and today, exist. Briefs detailed the legislative history of the provision. And the January 6 Committee report was evidence in the trial on that score in a Colorado courtroom. Finally, a majority of Congress found that Trump’s actions on January 6 constituted an impeachable offense, even if the 57 Senators who voted that way were short of the two-thirds necessary for removal from office. Since only a majority is needed for the type of legislative guidance, which Mitchell told the Court was necessary as a result of Griffin’s Case, that majority, specific to the question in this case, existed, having heard evidence more comprehensively than when legislation is usually considered.

I have no illusions that this type of pushback would likely change the result. Much of it existed in the amicus briefs filed. Instead, simply as a matter of appellate advocacy, it seems important to make points like that in response to a court’s assumptions. It may have no effect, but it also could create some hesitation on the part of the Court to make sweeping but erroneous declarations in the opinion that is issued and create a precedent for what is too facile a reading of the Constitution.

N.B.: The amicus brief I filed largely addressed two issues. First, that the debate over whether Section 3 is self-executing misunderstands the inquiry. The Constitution and the Fourteenth Amendment sets standards to be implemented. No State shall deny equal protection or due process, for example. And no person who has taken an oath to support the Constitution (which logically includes those who took an oath to “preserve, protect and defend” the Constitution) and has engaged in insurrection shall hold office. The next question, then, is not whether Congress, which cannot enhance or diminish the Constitution’s command, puts it into effect, but whether a mechanism exists to bring an alleged violation before a court of law. Colorado election law provides such a mechanism, according standing to voters like the plaintiffs in this case.

Second, the brief addressed misunderstandings about Griffin’s Case. The case, in which Chief Justice Salmon Chase wrote the opinion while riding circuit, addressed whether a judge, who had served in the Confederacy and should not hold office under Section 3, could issue a valid criminal conviction and sentence. Chase’s narrow decision found that such a collateral attack on the judge’s authority could not be mounted in this case involving a manslaughter charge without congressional authorization. It did not suggest state law would suffice, likely because the case arose in Virginia which, at the time, had “no legal state government[]” under the First Reconstruction Act. Moreover, as was noted at oral argument and in other briefs, the framers of the Fourteenth Amendment, as well as Chase, agreed that Jefferson Davis was disqualified without congressional action from public office, including the presidency. Congress believed so too, because it was argued that the Amnesty Act of 1872 was flawed because its removal of disqualifications would allow a party to nominate Davis to the presidency or vice presidency.

Moreover, claims made during the oral argument that Griffin’s Case served as the basis for the Enforcement Act of 1870 ignore that the Act was drafted before the decision in the case and that key provisions were reenacted from an 1862 Act that predated the case, thereby undermining Mitchell’s claim that the 1870 Act created statutory preemption for State enforcement (even though it was repealed in 1948).

Still, with the decision seemingly preordained, my hope is that whatever opinion is issued does not fracture the history or establish background principles that like early interpretations of the Fourteenth Amendment skew its construction in ways that creates problems in the future.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

[2] Id.

[3] Id.

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

Judicial Ethics Beyond the U.S. Supreme Court

Concerns about the absence of any applicable judicial ethics standards to justices of the U.S. Supreme Court grew into loud demands for an ethics code last year. The result was the adoption of a code largely consistent with the one applicable to federal judges generally, although it contained some important exceptions and also lacked any enforcement mechanism. As a result, recusal remains an individual decision for each justice with only vague and voluntary guidance.

Even though the rules may seem more clearly defined in other courts, surprisingly, issues remain. In 2009, the U.S. Supreme Court issued a decision in Caperton v. Massey, which applied the Fourteenth Amendment’s due process clause to judicial recusal. Brent Benjamin had won election as a justice to the West Virginia Supreme Court of Appeals. Substantial independent expenditures by a party in the case likely helped Benjamin’s candidacy. He nonetheless refused to recuse and argued that the money did not come to him, did not necessarily help his campaign, and did not affect his vote in favor of his so-called benefactor. Disagreeing, the U.S. Supreme Court ruled that the “risk of actual bias” was serious enough “based on objective and reasonable perceptions” that recusal was mandatory.

Although Caperton seemed to establish a standard that erred in favor of recusal, high court justices often determine for themselves whether they should be recused and adopt a personal standard. In one case I had in that same West Virginia court, I asked a justice to recuse himself after he had campaigned on a pledge to uphold the law I was challenging in remarks during his campaign to the group that had lobbied in favor it. He initially denied the motion for recusal, writing a statement about how he had First Amendment rights. Subsequent press coverage, quoting ethics experts who agreed that recusal was warranted, caused him to rethink his position and agree to recuse himself.

Today, the recusal issue is squarely presented in a case pending in the Ohio Supreme Court. Justice Joe Deters joined the Court a year ago after a career largely spent as a county prosecutor. The Court heard oral argument in State v. Glover on February 7. In a bench trial, a judge found Glover guilty of aggravated robbery and kidnapping after a crime spree in which he forced individuals at gunpoint to take him to an ATM, where he robbed them. The judge gave an aggregate sentence of 60 years for the multiple felonies with consecutive sentences. An appellate court found error in the sentence, ordering it reduced to an aggregate of 25 years. The State brought the case to the Ohio Supreme Court.

Justice Deters chose not to recuse himself, despite having served as lead counsel in the prosecution of Glover just two years ago. Ohio Rule of Judicial Conduct 2.11(a) requires a judge to “disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned.” Among the specific examples of circumstances warranting disqualification are: (1) having “personal knowledge of facts that are in dispute in the proceeding” and (2) the judge “act[ed] as a lawyer in the proceeding.”

Even though the issue is now a larger one than the underlying case and concerns the criteria applicable to sentencing when multiple crimes are committed, any decision will determine the length of Glover’s incarceration. It seems clear that Justice Deters has “personal knowledge of facts in dispute” and “act[ed] as a lawyer in the proceeding.” Moreover, the case was argued by Deters’s former co-counsel, which also requires disqualification. Given that the appearance of impropriety suffices to disqualify, the decision against recusal comprises an affront to due process. At oral argument, only Deters asked no questions. His silence, however, does not cure the problem.

As with Caperton, the potential exists for this case to land in the U.S. Supreme Court. If the Ohio Court of Appeals is reversed, particularly if Deters’s vote is decisive, Glover’s appointed counsel could raise Fourteenth Amendment due process objections. No one should miss the irony of a Court where recusal is entirely voluntary deciding when it should be mandatory for others.

The Colorado Supreme Court's Silly Decision

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

The Colorado Supreme Court based its decision on three findings.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[10] See id.

[11] See id.

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

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

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

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

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

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

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

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

A Few Lessons from the Briefing in Trump v. Anderson, the Ballot Eligibility Case before the Supreme Court

Not just appellate eyes, but the eyes of the country, are likely to be trained on the Supreme Court on February 8, when the justices will hear Trump v. Anderson, the case from the Colorado Supreme Court that held former President Trump ineligible under the Fourteenth Amendment’s Section Three to be placed on the Colorado Republican Primary Ballot because of his actions in connection with the infamous January 6 assault on the Capitol as electoral votes were being counted in 2021.

The Petitioners’ briefs, along with their amici, were filed by January 18. Although the Respondent’s Brief was filed January 26, supporting amicus briefs are not due until January 31. In full disclosure, I am filing one on behalf of Professor Kermit Roosevelt of the University of Pennsylvania’s law school.

The briefs filed revealed interesting strategic choices and provide instructive examples of how to use the same  historical examples, same words spoken during the congressional and ratification debates, and same precedents to opposing effects.

For this post, I want to primarily focus on choices made by the advocates. As every appellate advocate knows, it is prudent to put your best argument first. If that argument is weak, it has an adverse effect on the subsequent arguments. So how did the parties open their briefs?

Trump’s brief begins with the argument that the “president is not an ‘officer of the

United States.’” If the Court accepts that view, the case is over. That might seem to make it a good choice as an opening argument. Yet, the Colorado Supreme Court treated it as an extraordinarily weak one. That court found it impossible to believe that those who framed the Fourteenth Amendment were determined to assure that minor officeholders did not return to their minor offices, but that it was of no concern that the most powerful figure in American government could violate an oath to the Constitution in precisely the same manner and still regain that office.

To explain more fully, Section Three of the Fourteenth Amendment disqualifies those have “previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States.” The essence of disqualification, then, is that breaking an oath to support the Constitution disqualifies a person from office.

The argument his lawyers posit is that Trump can only be ineligible if the president qualifies as an “officer of the United States.” Members of Congress are mentioned, as well as other elected officials, but those not specified must be deemed “officers of the United States.” The brief argues that the term is a constitutional word of art that only applies to people the president appoints to office or commissions, as in the military – and the president cannot appoint or commission himself to an office.

In making the argument, Trump’s lawyers seek to appeal to the same justices who have were in the majority in decisions that cut back on the administrative state. In these modern precedents that found fault with the lack of accountability for independent agencies because their leaders could not be fired by the president, the Court has referred to “officers of the United States” as appointees, rather than as elected officials. Leading with this argument is a bid to use those precedents for another purpose, which is why it leads and takes up considerable real estate in the brief.

The Colorado State Republican Central Committee (CSRCC), another party on the same side as Trump, also begins its brief with this argument, apparently having made the same calculation. It, however, adds an additional twist. It argues that the president oath of office, which is prescribed by the Constitution, and requires a pledge to “preserve, protect and defend the Constitution of the United States,” cannot have the same consequences as breaking an oath to support the Constitution. The difference between preserve, protect and defend and support seems like the proverbial distinction without a difference, but the CSRCC contends that it ties back to the fact that the oath-breaking that disables only a person who is an “officer of the United States.” As slim a reed as this is to hang upon, the CSRCC attempts to support its argument by making a concession. If Trump had served as a senator, representative, or governor before he became president, the result in this case could be different because those oaths trigger for Section Three’s application. But because he never held public office beforehand, the presidential oath is not one that gives rise to ineligibility. It remains to be seen if anyone salutes that flag.

The Respondents made several strategic choices in response. Just as the opening briefs should start with an advocate’s strongest points, the responsive brief should as well, rather than simply adopt the order of an opponent. It should be noted that there will be no reply briefs. Their first choice was to review the extensive evidence introduced at trial on why Trump’s conduct qualifies as fomenting an insurrection. (Trump’s brief follows his first point with an argument that he did not engage in insurrection, relying on his counterevidence.).

The choice to begin with the events of January 6 and Trump’s actions remind the justices of how serious the attack was that day and what it sought to accomplish, events and intentions that may have faded during the subsequent three years. The Respondents also intersperse color photographs from that day, enabling the justices to recall the seriousness of the attack.

Then, having established the factual predicate, the Respondents proceed to argue that an “insurrectionist president” is ineligible under Section Three. The use of that term, “insurrectionist president” is a calculated one. It establishes the abstract proposition that the Framers of the Fourteenth Amendment could not have intended that the presidency was available for someone of that ilk. Indeed, much of the debate around this provision had various members of Congress expounding on how it would keep the Confederacy’s Jefferson Davis out of the presidency. The Respondents also remind the Court that the presidency is referred to as an “office” in the Constitution 20 times, so that office or officer need not be an exclusionary term.

It suffices to say that both sides have employed appellate advocacy tactics that this blog has discussed many times. I plan to be in the courtroom February 8 to see how those techniques are deployed during oral argument.

Appellate Advocacy Blog Weekly Roundup Friday, January 19

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

SCOTUS Opinions and News:

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

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

 

Federal Appellate Court Opinions and News:

 

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

Appellate Practice Tips:

 

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

Appellate Jobs:

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

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

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

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

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

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

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

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