Appellate Advocacy Blog

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

Sunday, October 10, 2021

A Supermajority Requirement Would Solve Nothing

            If the solution is simple, it might not actually be a solution. Last week, another contributor to this blog suggested that a six-vote supermajority rule could help resolve concerns about the Supreme Court being just another political institution rendering political decisions. The suggestion struck me as misguided and ineffective.

            In recent weeks, no fewer than four justices have spoken out that they are not, as Justice Amy Coney Barrett put it, “political hacks.” Each made the point that they adhere to a judicial philosophy, rather than carry their political preferences into law. Although I have no doubt that each believes that to be true, the judicial philosophies that each espouses, on many of the hot-button issues that come to the Court, tend to coincide with views of the political party of the president who appointed them, which is why modern Supreme Court nominations generate deep political schisms. To be sure, there are occasional “strange bedfellows,” where the majority line-up includes justices thought to have incompatible philosophies/politics and where the results surprise. Still, most decisions seem to follow political views as much as judicial philosophy so that any distinction that exists appears, at best, a subtle one.

            Accusations that the Court is engaged in politics are not new and would not change if a supermajority requirement were adopted. Two of the most important constitutional law decisions issued by the Court, both of which were unanimous, were criticized as political and evinced a political tinge. The dispute in Marbury v. Madison,[1] for example, came out of the political growing pains of a new nation during the first transition of power from one political party to another. The Federalist administration of John Adams tried to seed the judiciary with party loyalists, just as Democratic-Republican Thomas Jefferson was about to take office. In the rush of appointing “midnight judges,” some commissions were not delivered by Secretary of State John Marshall before his successor, James Madison, took office. It was Madison’s refusal to deliver those commissions that resulted in William Marbury’s lawsuit seeking to complete his appointment as a justice of the peace.

            The new Congress recognized the case would be decided by Federalist appointees, including John Marshall, himself a midnight judge. It cancelled the upcoming Supreme Court term, delaying the case. When the Court finally heard the matter, it was fully aware of the political stakes involved and how a politically problematic decision would generate retaliation against the Court. As the administration and Congress feared, the Court held Marbury was entitled to his commission. Yet, in a masterful twist, the Court also held it was without authority to provide relief because the congressional authorization giving the Court jurisdiction to issue a writ of mandamus conflicted with the Constitution’s limited grant of original jurisdiction. The Court struck down this extra-constitutional authorization, exercising the power of judicial review. It avoided a confrontation with the Jefferson administration over its power to order the seating of Marbury, while establishing the Court as the venue where the Constitution would be authoritatively construed and laws struck as unconstitutional. The decision was a balancing act that operated to preserve – and, indeed, strengthen – the Court as an institution.

            The second landmark foundational case, Brown v. Board of Education,[2] unanimously struck the separate, but equal doctrine. Though it now, deservedly, garners laurels, it generated a storm of criticism at the time, including a massive-resistance movement and Senator James O. Eastland’s declaration that the opinion was a “legislative decision by a political court.” The decision came to be in large part because Chief Justice Earl Warren used his political skills honed as governor of California and the Republican vice presidential nominee before taking the bench to work his colleagues so that a single authoritative opinion spoke for the Court. Similar “political” considerations resulted in the decision in Cooper v. Aaron,[3] signed by each of the justices as though co-authors, to express the Court’s emphatic intolerance of delays in desegregating Central High School.

            These decisions did not merely hew to some abstract concept of law existing somewhere only to be found, but recognized the legal questions being answered existed in a political world in which the Court’s authority would be questioned.

            Requiring a supermajority vote fails to assure public confidence and respect. It is not the line-up of the vote, but the reasoning and consequences that count. Some of the worst decisions in Supreme Court history boasted overwhelming support among the justices, such as: Dred Scott v. Sandford[4] (7-2, holding that African-Americans could not be U.S. citizens and likely precipitating the Civil War ); Plessy v. Ferguson[5] (7-1, creating the separate-but-equal doctrine); Korematsu v. United States[6] (6-3, upholding the internment of Japanese-Americans during World War II); and, Buck v. Bell[7] (8-1, finding no constitutional impediment to a state law mandating sterilization of those deemed “feebleminded” to prevent future generations from inheriting “bad” genes). In each of these cases, the political considerations were determinative.

            The point is that a 6-3 supermajority requirement provides no guarantee that the Court will render decisions divorced from politics – or – decisions that are sounder from some hypothetical purely legal perspective.  And a more closely divided Court is no more or less legitimate than one that garners an additional vote or two for its majority.

            The proposal aired in this blog specifically argued in favor of at least six votes to affirm or reverse a lower court decision. Without a supermajority, the proposal would let the lower court decision, whether it was made in federal or state appeals courts, stand, even if it were the product of a bare majority on that court or constituted a plurality opinion. Those consequences, however, would produce their own political dynamics – a Supreme Court able to avoid controversy due to a lack of supermajority support for one result or another, disharmony on federal questions across the circuits and state courts so that federal law would be different depending on where a person lived, and, possibly, even summary reversals of decisions disliked by a supermajority without an agreed-upon ratio decidendi, creating uncertainty about what rule of law applies. None of these consequences are more desirable than the current approach.

            A supermajority requirement simply would not depoliticize the Court.

 

[1] 5 U.S. (1 Cranch) 137 (1803).

[2] 347 U.S. 483 (1954).

[3] 358 U.S. 1 (1958).

[4] 60 U.S. (19 How.) 393 (1857).

[5] 163 U.S. 537 (1896).

[6] 323 U.S. 214 (1944).

[7] 274 U.S. 200 (1927).

October 10, 2021 in Appellate Court Reform, United States Supreme Court | Permalink | Comments (0)

Saturday, October 9, 2021

Appellate Advocacy Blog Weekly Roundup Saturday, October 9, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

Appellate Court Opinions and News

  • The controversial Texas abortion ban was blocked and then reinstated this week. The Texas law bans most abortions after about 6-weeks, making abortion virtually impossible in Texas. Judge Pitman of the District Court for the Western District of Texas blocked the ban, recognizing the deprivation of a constitutionally protected right. Judge Pitman wrote: “[T]here can be no question that [the law] operates as a ban on pre-viability abortions in contravention of Roe v. Wade, and ‘equates to a near categorical ban on abortions beginning six weeks after a woman’s last menstrual period, before many women realize they are pregnant, and months before fetal viability.’”  He ends the opinion by finding that “[f]rom the moment [the Texas law] went into effect, women have been unlawfully prevented from exercising control over their lives in ways that are protected by the Constitution. That other courts may find a way to avoid this conclusion is theirs to decide; this Court will not sanction one more day of this offensive deprivation of such an important right.” See Judge Pitman’s decision and reports on the decision from NPR, Reuters, The New York Times, APNews, the Austin American Statesman, and The Washington Post.

  • Late Friday, the Fifth Circuit stayed Judge Pitman’s order.

Appellate Practice

The Advocate’s Society, Appellate Advocacy Practice Group: Networking Launch, is offering an online program titled “Dirty Tricks of Appellate Advocacy?” on October 26.

October 9, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 28, 2021

If the public’s opinion of the Supreme Court falls in the woods, does anyone hear it?

    Next week, the Supreme Court will return to a crowded docket filled with high-profile cases on abortion rights, religious school instruction, and criminal procedure. The Court will also be returning to in-person arguments sure to generate high drama for court watchers. But with the new term starting, it may have gone unnoticed that public opinion about the Court has fallen precipitously over the past year.

    A Gallup poll released last week showed that American’s opinions of the Court have dropped to an all-time low of only 40 percent approving of its job performance, with another study by Marquette University noting a similarly precipitous drop in public approval. Some of the Court’s recent procedural changes may be an effort to rebuild its public image. As this blog has noted, the Court is changing its oral argument process to allow more individual questioning by Justices and less free-for-all interruption of the advocates—which may or may not be a positive development. But small tweaks to procedure are little salve to the many negative views of the Court as a wholly partisan institution that cannot resolve our nation’s most challenging and fundamental disagreements.

    Some of the disapproval may stem from the Court’s recent emergency rulings that have ended a nationwide eviction moratorium and allowed a Texas law banning most abortions after six weeks of pregnancy to take effect. Such rulings, issued through an opaque process with little input and no public discussion, likely undermine public trust in the Court’s good faith. But the rulings themselves are also notable for the controversial views they adopted largely in the dark. Such opinions are the product of long-standing issues with the Court’s public image that have gone unresolved.

    Partisanship on the Court, real or perceived, has undoubtedly increased in recent years. The nomination process has proven nothing but a political football for Congress. Those in the majority have permitted only favored nominations to go forward. Vetting prospective Justices may be high political theater, but it has little substantive meaning, aside from providing elected officials with the opportunity to publicly display loyalty to their tribe.

    Not surprisingly, the product of that partisan process is a more partisan bench itself, at least in the eyes of the public. Divergent interpretive methods and lengthy, impenetrable rulings give the public the perception that decisions are motivated solely by policy preference, rather than principled legal stances. Those on the right and the left assume that the philosophical underpinnings of most opinions are gobbledygook used to justify a result the Justice had in mind all along.

    Thus, Supreme Court reform has become a popular topic, especially for progressives convinced that adding Justices is the only way to equalize the Court’s intellectual balance. Whether such efforts would achieve balance or not, they are nakedly political. They seek not to reduce the partisan temperature on the Court, but to increase that on the Court’s liberal wing to equalize the passion of those Justices who lean conservative. Matching rancor with rancor forces politics further into the spotlight on the bench. New appointees would have an apparent mandate for progressive rulings, not intellectual honesty or judicial modesty.

    Are there any other options? Perhaps a merit-based selection process for federal judges would convince the public that the courts are not overtly political. Or perhaps simpler changes to the way the Justices approach the decision-making process could be effective. I do not mean to suggest that Justices should frequently cow to public opinion polls when writing their decisions. But they should tend to the institutional goodwill that the Court has long been afforded. The Court would do well to engage openly and honestly with even the most controversial issues. It should avoid decisions masking policy preferences in opaque, scholarly language, especially when deciding without the benefit of full briefing and oral argument. The Justices should write simple, straightforward opinions. They should avoid interpretive debates that have proven both tiresome and inaccessible to most members of the public. They should aim for simplicity, clarify, and honesty in expressing their views. Put another way, writing the way we teach new law students to write might serve the Justices well.

September 28, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Law School, Legal Writing, Oral Argument, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Monday, September 27, 2021

Judicial Selection & A Divided Nation

Two weeks ago I blogged about Lance B. Wickman's article, Lawyers as Peacemakers, in the most recent issue of the Journal of Appellate Practice & Process. Today, I want to discuss part of Dean Erwin Chemerinsky's article--The Non-United States of America.

Dean Chemerinsky spends the first half of his article positing reasons for the deep partisan divides in our country. He identifies structural aspects of our governmental system, like the Electoral College, as partially responsible. He also looks at the role of the media, former President Trump, and the COVID-19 pandemic. According to Dean Chemerinsky, the "deep partisan divide in the United States" is "the greatest threat to democracy that [our country] has faced" and could lead to "serious talk of secession." Despite these dire words, he remains "an optimist and believe[s] that there is much more that unites the American people than divides us."

In that spirit, he offers one suggestion--"change the method of picking Justices and lower federal court judges to make it less partisan." Dean Chemerinsky points to states like Alaska that have a merit selection process for picking state court judges.  Arizona has something similar. Our Judicial Nominating Commissions take applications for open judicial positions. The Commissions interview candidates and send a bi-partisan list to the governor, who selects a judge from that list. Many merit  selection states have systems modeled after the state of Missouri.

According to Dean Chemerinsky, former President Jimmy Carter used merit-selection panels for judicial vacancies. Dean Chemerinsky recommends that such panels be ideologically diverse and include non-lawyers. These panels would give the president at least two names to fill vacancies, and the president would promise to select from the list. Obviously, this would be a change from how presidents have nominated judicial candidates in the past. Traditionally, presidents rely heavily on the home state senators who are of the same party as the president for names.

Such a panel is an interesting idea. Dean Chemerinsky states that the panels should send "the most qualified individuals" to the president, but that is certainly an objective standard. And Dean Chemerinsky recognizes that presidents would have to voluntarily agree to create such a commission.  As he writes, "my hope is that once a courageous president creates the system, especially for high-profile Supreme Court nominations, political pressure will be great for others to follow the practice of merit selection."

I do think that the merit-selection process has worked well in some states, and it would be interesting to see something similar adopted at the federal level.

September 27, 2021 in Appellate Court Reform, Appellate Justice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Sunday, September 26, 2021

New Supreme Court Procedures Likely to Change Argument Dynamics

            In the late 1980s, I was invited to participate in a project designed to help the Supreme Court of India address a backlog of cases that stretched back a decade. One obvious problem, it seemed to me, was that oral argument for a single case could span days or, in important matters, more than a week, as argument seemed to give rise to lengthy flights of oratory. On my second day in New Delhi, I met with members of their Supreme Court bar. Soon after the meeting began, one practitioner sought to confirm that the U.S. Supreme Court limited oral argument to 30 minutes per side. Upon receiving an affirmative answer to that question, he then asked, “how do you even warm up?”

            The events of that morning recurred to me when I read the Supreme Court’s recent announcement that it was adopting a new procedure as oral argument returned to the courtroom after a pandemic-period process of argument by telephone. The procedure for telephone arguments gave the advocate two uninterrupted minutes to introduce the argument, followed by two minutes of questioning by each justice, seriatim, in order of descending seniority. The procedure was a significant departure from the free-for-all arguments that earned the Court the reputation as a hot bench.

            That type of fast and furious questioning during in-court oral argument is often associated with the late Justice Antonin Scalia, who showed no reticence in lobbing question after question at counsel even during his freshman term. Scalia’s then-unusual amount of questioning reportedly caused Justice Lewis Powell to wonder if the new justice even realized the rest of them were there. By the time Justice Clarence Thomas joined the Court, nearly all justices had adopted an active questioning style, though Thomas, believing it was important to let the advocates speak, remained largely silent for years at a time. During the pandemic’s telephone procedure, though, Thomas, as the senior associate justice, became a regular questioner, showing that procedural changes in oral argument can affect its dynamics.

            As the Court gets underway for the new term, it has adopted a combination of the two procedures. Advocates will still experience 30 minutes of sharp questioning, but then time is added to allow the justices to ask additional questions in order of seniority, just as they did when arguments were conducted by phone. One of my co-bloggers has already expressed approval of the new format https://tinyurl.com/2r49ufkc. I’m more skeptical.

            Although the Court has admonished advocates to “respond directly to the questions posed,” rather than make “additional arguments not responsive to the question,” some oralists, no doubt will find the opportunity to relate an answer to an argument not yet covered in the courtroom irresistible. Those who can do that seamlessly will likely get away with it. One obvious change is that the new procedure is likely to extend oral argument to unknowable lengths of time. Perhaps the justices will have asked all their questions in the earlier period, but that seems unlikely. The extra time will not just lengthen the arguments, but will likely shift oral argument strategy, based on the knowledge that some issues the advocate purposely reserves are likely to be aired during the justice-by-justice round.

            In addition, the new procedure may change a justice’s decision about when to ask a question. Some justices may choose to forego a question during the unstructured argument time because another justice is forcefully seeking an answer to something else during that earlier period. Rather than interrupt the line of questioning as often occurred in the past, a justice may reserve the issue for the latter time period. Doing so, however, could be a disservice. The answer elicited may show the issue to be a critical one that deserves more time for exploration than might remain, which may not have been true if raised earlier.

            Moreover, when questions are posed in order of seniority, particularly subsequent to the usual oral-argument period, the number of questions left unasked will diminish by the time the more junior justices have their turns. If the junior justices begin to appear mute as the formal questioning ends, courtwatchers and the public may mistakenly take away a false impression of disinterest. To combat that image, a junior justice may feel impelled to jump into the conversation more actively in the earlier part of the argument than they might otherwise choose to do. The result will undoubtedly affect the nature of oral argument, but in an artificial way.

            Appellate lawyers – and appellate courts – will watch closely as the new procedure is implemented. Advocates will adjust their strategies, the Court itself may tinker with the procedure as experience suggests changes, and federal circuit courts may choose to adopt it or a variant on it for their own arguments. When telephone arguments were in place, Chief Justice John Roberts kept a firm hand on limiting the justices to their allotted questioning time. The new procedure, which has no apparent time limits on the justices’ questions or the responses,  may call for even more stark time management – perhaps even as strict as those enforced by Chief Justice Charles Evans Hughes, who, when time was up, could stop an advocate in the middle of the word “if.” With the new term commencing October 4, many people will be watching the process of oral argument with the same intensity as they scrutinize the merits of the arguments themselves.

September 26, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, September 24, 2021

Appellate Advocacy Blog Weekly Roundup Friday, Sept 24, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court announced that it will hear an abortion case in the 2021 term that asks the court to overturn Roe v. Wade. The case concerns a Mississippi abortion law that bans abortions after 15 weeks with exceptions "only in medical emergencies or for severe fetal abnormality." The law includes no exception for rape or incest. The case is set to be heard on December 1. See reports from CNN, CNBC, and NPR.  

  • The Supreme Court will adopt a hybrid argument format when it resumes in-person argument for the October term. The format will combine the pre-pandemic “free-for-all” style with the pandemic “turn-taking” style. Under the format, after a lawyers’ opening statements and during the allotted argument time, justices will pose questions as they did before the pandemic shut down. According to SCOTUSblog, during the argument, “the justices can presumably interrupt both the arguing lawyer and each other at will.” Then, after a lawyer’s argument time, “each Justice will have the opportunity to question that attorney individually. Questioning will proceed in order of seniority.” See the Guide and reports from Bloomberg and the ABA Journal.

  • On September 22, the Federalist Society aired “Supreme Court Preview: What is in Store for October Term 2021.” Find the YouTube link here.

Appellate Court Opinions and News

  • The Fourth Circuit vacated its recent ruling that gun laws barring sales to those under 21 are unconstitutional (a ruling we covered in July 2021). The court decided that the decision was rendered moot when the plaintiff turned twenty-one. According to the court, “[a]fter the opinion issued but before the mandate, [Plaintiff] turned 21. And that made her claims moot.” “Despite efforts to add parties and reframe her claimed injuries, it is too late to revive this case.” See the order and reports from Reuters and the Associated Press.

  • The Fifth Circuit heard a challenge to the Mississippi voting rights act. The case seeks to overturn a Mississippi law that permanently disenfranchises people who have been convicted of certain felonies.  The argument can be accessed here. See a report from Courthouse News.

 

September 24, 2021 in Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Thursday, September 23, 2021

Call for Submissions--Appellate Practice in and around Indian Country

The Journal of Appellate Practice & Process is currently accepting submissions for Volume 23, Issue 1, to be published in late 2022/early 2023.

This issue will focus on appellate issues in and around Indian Country.  We welcome articles on appellate practice in Tribal Courts, articles exploring Tribal sovereignty and appellate justice, articles that explore jurisdictional questions raised by recent U.S. Supreme Court decisions, and other essays or articles addressing appellate practice issues in and around Indian Country. We welcome articles by academics, judges, and practitioners.

Essays and articles should not exceed 15,000 words in length. Please submit all papers to Prof. Tessa L. Dysart (tdysart@email.arizona.edu) by June 1, 2022.  Acceptances will be emailed by August 1, 2022.

The Journal of Appellate Practice and Process is a professionally edited Journal that focuses on appellate law topics. According to HeinOnline, it is the “the only scholarly law journal to focus exclusively on issues, practices, and procedures of appellate court systems, both federal and state, both American and international.” It “provides a forum for creative thought and dialogue about the operation of appellate courts and their influence on the development of the law.”

Since its founding in 1999, The Journal has published scores of important articles. Chief Justice William H. Rehnquist and Justices John Paul Stevens and Stephen G. Breyer have written for The Journal.  So influential is the Journal that courts often refer to it in their opinions, with over 100 citations in 2019 alone.

The Journal moved to the University of Arizona James E. Rogers College of Law in June 2020. It is edited in partnership with the National Institute for Trial Advocacy. You can find out more about the Journal at www.appellatejournal.com.

September 23, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)

Wednesday, September 22, 2021

A few thoughts on new SCOTUS argument rules

Oral argument in the supreme court has seen many changes over the years. In the early days of the Republic, counsel would often spend hours, sometimes days, arguing a single case. At that time, oral argument, rather than briefing, was the primary vehicle for counsel to communicate their points to the court. Over time, the emphasis switched from speaking to writing, and oral arguments got shorter--down to two hours shortly after the Civil War, to one hour in the early 20th Century, then to the current limit of 30 minutes in the late 1960's. How justices have used that time has also changed. Until the mid-1980's, it was common for justices to ask just a few questions--if any--during oral argument. It was much more an advocate's chance to pitch their view of the case. But all that changed with Justice Scalia's appointment in 1986, as his extensive questioning prompted other justices to take a more active role during arguments. One famous exception was Justice Thomas, who rarely spoke during argument, believing it rude to interrupt counsel's presentation.Before the pandemic, a "hot bench" was very much the norm, with most advocates having little time to make affirmative points between answering a bevy of questions from the court.

The pandemic changed all that, with the court opting to hold telephonic arguments with two new notable rules: (1) counsel had two minutes to say her piece and then (2) each justice had a set time in which to ask questions, uninterrupted by the other justices. Chief Justice Roberts kept the clock and enforced the time limits.

Some of these changes are here to stay, at least for now. SCOTUS this week released an updated oral argument guide ahead of returning to in-person oral arguments for OT 2021, which retains the pandemic changes and cautions counsel not to stray from a questioner's direction. A few thoughts on how this affects oral argument preparation and presentation going forward.

  1. Justice Thomas. All signs currently point to Justice Thomas continuing his active questioning at argument, since he will have a set time to ask questions without interrupting or being interrupted by anyone.
  2. Affirmative points. Going in to most oral arguments, counsel have a choice to make--start with an affirmative point, or pick up the conversation where it left off and start answering questions. Counsel can still take either tack in this new(ish) format, but I think counsel will tend to skew to making affirmative points, since this will be their best or only chance to control the topic of conversation.
  3. A little smoother? The new rules were somewhat awkward to enforce during telephonic arguments, as both the justices and counsel lacked visual cues to stop or start talking. In person, the rules should be a little smoother as the participants can see and react to each other.
  4. A little nicer? At its most hectic, oral argument can devolve a bit into a duel of perspectives with the justices sometimes speaking to other justices under the guise of questioning the advocate. I think the new format changes that dynamic a bit and makes the tone--for lack of a more lawyerly word--nicer. The justices are forced to deliberately triage their questions, but can't get interrupted by others and thus are not able to get into a back-and-forth with other justices.

Overall, I like the changes and think they improve both the tone and the presentation of argument. What do you think?

September 22, 2021 in Appellate Procedure, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Wednesday, September 8, 2021

SCOTUS Will Continue Streaming Live Audio of Oral Arguments

The Supreme Court's Office of Public Information announced today that oral arguments for the rest of the calendar year will take place in the Courtroom, but sessions will be closed to the public. Understandable. But here's the good thing: the Court anticipates that it will continue to provide a live audio feed of oral argument, at least for the period where public access to the Courtroom is restricted. 

So the Court will return to its traditional unstructured approach to oral arguments rather than continue with the seriatim-questioning approach it adopted for telephonic arguments during the pandemic. And the public will be able to follow arguments in high profile cases like New York State Rifle & Pistol Association v. Bruen in real time. 

image from pbs.twimg.com

September 8, 2021 in Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, September 7, 2021

Professionalism in Legal Writing – Dos & Don’ts, Part V - Point Heading, Summaries, and Transitions

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fifth post in the series.

Do provide appropriate signposts:

  • Do consider using headings and summaries.
  • Do use transitions between sections that guide the reader from one argument to the next, especially in longer pieces of writing.

The Commission on Professionalism asks us to consider using headings and summaries, but there’s nothing to consider, we should use headings and summaries. It is always our goal to make our writing clearer and thus to make our reader’s job easier. Headings and summaries help us do that. Transitions do too. They allow our reader to move seamlessly from one topic to the next

1.    Point headings make our writing better.

Headings (here we’re talking about point headings) make our writing clearer because they show the structure of our writing, convey key points, and create white space. So let’s talk about how to create useful headings.

A.    Point headings are topic sentences.

Point headings serve as the topic sentences of the paragraphs that follow. They tell your reader what you’re going to discuss. Be sure that the paragraphs that follow a point heading, and the sentences within each paragraph, relate directly to the point heading. If they don’t then you need to re-think your point heading or the paragraphs that follow it.

B.    Point headings should be full sentences.

Your point headings should be full sentences and they should convey substantive information. Which of these point headings is better

                1.    Strict Scrutiny.

                2.    The statute creates a class of disfavored speakers, so it is subject to strict-scrutiny review.

The second heading tells the reader the substance they should be learning in the subsequent paragraphs—how the statute creates a class of disfavored speakers and why strict scrutiny applies.

C.    Point heading should look like sentences.

Because point headings are full sentences, they should look like sentences. They should not be written in ALL CAPITAL LETTERS, nor should they be written in Initial Capital Letters. Save those styles for your section headings.

D.    Point headings are not just for the argument section.

Point headings are helpful in the fact section of briefs too. Again, they convey substantive information, show the structure of the fact section, and create white space. Here is an example:

               1.    In 2007 the National Parties negotiated a new collective bargaining agreement that contained a two-tier wage system.

The sentences that follow that point heading explain how and why the National Parties negotiated a two-tier wage structure.

E.    Point headings serve as a check on your analysis.

If you’ve created good point headings, you should be able to look at them and understand the structure of your argument. If you can’t, then you need to re-write your point headings or re-organize your analysis.

F.    Good point headings start with a good outline.

The simplest way to ensure that you’re creating good point headings and that you’ve created a well-reasoned argument is to spend time outlining your brief. You can then turn the points of your outline into point headings.

G.    You should include point headings in your Table of Contents.

Once you’ve written your brief and included good point headings, be sure to include the point headings in your Table of Contents. Doing so allows you to start persuading your reader sooner because they can see the key facts of your case and the key points of your argument just by reading your Table of Contents. Compare these examples:

Example 1:

TOC - Bad

Example 2:

TOC - Good

Good point headings make your writing clearer and allow your reader to follow the structure of your argument. Summaries do too.

2.    Summaries make our writing better.

Summaries should provide a brief overview of what you will discuss. Summaries allow you to orient a reader who is unfamiliar with a topic or issue. They give the reader a base of knowledge from which to work and help them better understand the information that you provide. Think of your summary as your elevator pitch.

After you’ve created good point headings and helpful summaries, think about ways you can transition your reader smoothly from one topic to the next.

3.    Transitions make your writing easier to follow.

A good transition should remind your reader what they just learned and prime them to receive additional information. Good transitions connect the parts of your writing to avoid sudden shifts between topics or arguments. They allow your reader to move smoothly from one subject to the next and show that there is a logical structure and flow to your writing.

Good point headings, summaries, and transitions work together to create a logical flow to your writing. The effort you put into crafting these parts of your brief will make your reader’s work easier and thus help you be a better advocate.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

September 7, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Ethics, Legal Profession, Legal Writing, Moot Court, Rhetoric, State Appeals Courts, Tribal Law and Appeals, United States Supreme Court | Permalink | Comments (0)

Sunday, September 5, 2021

The Abortion Mess Continues

In the words of the late Justice Antonin Scalia, “[l[ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried,” Roe v. Wade (and Planned Parenthood of Southeastern Pennsylvania v. Casey) stalks the Fourteenth Amendment’s jurisprudence yet again, reflecting the constitutional mess that these decisions created.[1]

Specifically, in Dobbs v. Jackson Women’s Health Organization, the Court will decide whether a Mississippi law, which bans abortions after the fifteenth week of pregnancy, violates the right, created in Roe and reaffirmed in Planned Parenthood, to obtain abortions before viability (which occurs at approximately twenty-four weeks of pregnancy).[2] By way of background, in Roe, the Court interpreted the Fourteenth Amendment’s Due Process Clause to support a fundamental right to terminate a pregnancy in certain circumstances.[3] In so holding, the Court adopted a trimester framework that balanced a woman’s right to terminate a pregnancy with a state’s right to regulate the abortion procedure. In the first trimester, women had an unfettered right to terminate a pregnancy.[4] In the second trimester, states could regulate abortion to protect a women’s health.[5] After the second trimester – when the fetus became viable – states could prohibit abortions except when necessary to protect the life or health of the mother.[6]

Scholars and judges of all political persuasions criticized the Court’s decision in Roe, arguing that the right to abortion could not be found anywhere in the Constitution’s text and certainly was not inferable from the Fourteenth Amendment’s Due Process Clause, which protects procedural, not substantive rights.[7] These scholars were correct: the abortion right in Roe was predicated in substantial part on and an outgrowth of the Court’s decision in Griswold v. Connecticut, where the Court held that the Constitution contains invisible “penumbras,” that are “formed by emanations from those guarantees [in the text] that give them life and substance.”[8] In other words, the Court could create whatever rights it wanted, regardless of whether the text supported creating those rights.

Two decades later, in Planned Parenthood, the Court made the problem worse. In a 5-4 decision, the Court upheld the central holding in Roe (the right to obtain abortions before viability) but rejected Roe’s trimester framework. In its place, the Court adopted the “undue burden,” test, which stated that before viability, states may not enact laws that impose a substantial burden on a woman’s right to access abortion services.[9] It is obvious why Planned Parenthood introduced instability and unpredictability into abortion jurisprudence. After all, what constitutes an “undue burden” on the right to obtain a pre-viability abortion? No one knew the answer. Perhaps it was located in Griswold’s penumbras, which only the Court could access and define.

Not surprisingly, in response to what many rightfully perceived as judicial overreach in Roe and constitutional ambiguity in Planned Parenthood, some states embarked on a decades-long and seemingly never-ending mission to eviscerate, if not effectively overturn, Roe through legislation that imposes various restrictions upon when and under what circumstances women can obtain abortions. For example, in Planned Parenthood, a Pennsylvania law required minors to obtain parental consent, and adult women to inform their spouses, before obtaining an abortion. The Court upheld the former provision and invalidated the latter.[10] In Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, Texas and Louisiana, respectively, enacted laws requiring physicians to obtain hospital admitting privileges before providing abortion services.[11] In two 5-4 decisions, the Court invalidated both laws.[12] These cases are just a sample of the many instances in which states attempted to limit, directly or indirectly, access to abortion.[13]  

And in every case,  the Court declined the opportunity to clarify definitively the nature and scope of the abortion right, such as by unequivocally upholding or overruling Roe, or adopting categorical rules concerning when and under what circumstances women could access abortions. Instead, the Court applied the malleable “undue burden” test, which resulted in a case-by-case jurisprudence that led to uncertainty and often kept the abortion right hanging by a thread, dependent more on the current justices’ ideological predilections than on principled constitutional law. Simply put, the Court’s approach ensured that the abortion right would remain in constitutional purgatory, mired in uncertainty, and continuously under attack by states that viewed abortion as constitutionally unsupportable and morally indefensible.

Unfortunately, the saga continues.

In the latest installment of How to Overturn Roe While Acting Like You Are Not, the State of Mississippi has enacted a law that bans abortions after fifteen weeks – and thus bans a portion of previability abortions. Only this time, the plot doesn’t just involve Dobbs v. Jackson Women’s Health Organization, where the Court will decide whether Mississippi's law passes constitutional muster.  Rather, Texas has decided to make yet another appearance into the abortion sage by passing an unusually bizarre law that: (1) bans all abortions after six weeks; and (2) gives citizens, not the state, enforcement power by authorizing private causes of action against those who provide or assist in providing abortion services after six weeks.[14] This law is certainly unconstitutional; many women do not even know that they are pregnant at six weeks, thus rendering the six-week limit a substantial and unconstitutional burden on abortion access. Not surprisingly, in Whole Women’s Health v. Jackson, the Petitioner sought an order from the Court preliminarily enjoining the law's enforcement.[15]

You’d think that, based on Roe and Planned Parenthood, the Court would have granted the injunction.

Think again.

Last week, in a 5-4 decision, the Court declined to issue an injunction. [16] To be fair, the majority did not rule on the merits of Texas’s law. Rather, the Court held that the Petitioner did not meet the standard for obtaining a preliminary injunction because, among other things, there was no evidence that any private citizen intended to enforce the law, or that the Court had the authority to issue an injunction against state judges who were asked to decide the law's constitutionality.[17] The Court was careful to emphasize, however, that its decision was not “based on any conclusion about the constitutionality of Texas’s law.”[18]

Yeah, right.

The majority doesn’t live in a fantasy world. It knew that its decision would allow a law to go into effect that unquestionably violated Roe and Planned Parenthood, and effectively outlawed abortion for most women in Texas. As Justice Sotomayor explained in her dissent:

The Court’s order is stunning. Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand. Last night, the Court silently acquiesced in a State’s enactment of a law that flouts nearly 50 years of federal precedents.[19]

Furthermore, as Justice Breyer noted in his dissent, the Court could have enjoined the law on the ground that a state “cannot delegate . . . a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy.”[20] Ultimately, the Court’s refusal to issue the injunction in Whole Women’s Health v. Jackson suggests that five justices may be prepared to overturn Roe or, at the very least, severely restrict abortion rights.

For that and other reasons, Dobbs v. Jackson Women's Health Organization is perhaps the most important abortion case in years. Whatever the justices decide, they should ensure that the opinion ends the constitutional mess that is abortion jurisprudence, in which the abortion right has been plagued by uncertainty and the Court’s decisions characterized by anything by clarity.  The Court can do so by issuing a clear and categorical decision about whether abortion is a fundamental right and, if the answer is yes, clarifies definitively the scope of this right. The Court has several options, including:

  1. Overturn Roe and return the abortion issue to the states.
  2. Overturn Planned Parenthood but not Roe and return to the trimester framework.
  3. Overturn Planned Parenthood and Roe, but hold that the Equal Protection Clause supports the right to abortion.
  4. Uphold Planned Parenthood and Roe based on stare decisis.

The absolute worst result would be if the Court issued yet another fractured, 5-4 decision that invalidated or upheld the Mississippi law, but otherwise provided no clarity regarding the scope of the abortion right and the states’ power to restrict its exercise. The worst result would be if Chief Justice Roberts engaged in legal shenanigans yet again in a misguided to preserve the Court’s institutional legitimacy. The worst result would be if the Court issued a plurality opinion with multiple concurrences and dissents that made readers think that the Court just can’t – and perhaps never will – reach any agreement on how to address the constitutional mess that Roe created, and that Planned Parenthood exacerbated. Whatever happens, the abortion saga should be a lesson in what happens when courts ignore the Constitution and create rights out of thin air.

The time has come to bring the abortion soap opera to a conclusion and end the decades-old constitutional charade that Griswold, Roe, and Planned Parenthood created.  In other words, either kill the monster or allow it to forever terrorize constitutional law and lurk in the hidden penumbras, waiting to trap and possess unsuspecting justices in those penumbras.  

The Court’s abortion jurisprudence, however, suggests that the ending in the latest installment of How to Overturn Roe While Acting Like You Are Not will leave the audience wanting, just as in those 80s’ horror movies that ended with the killer seemingly dead, only to open an eye or move a body part before the screen fades out, signaling to the audience that yet another sequel is on the horizon. 

Stay tuned.

 

[1] Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993) (Scalia, J., concurring)

[2] No. 19-392, available at: Dobbs v. Jackson Women's Health Organization - SCOTUSblog.

[3] 410 U.S. 113 (1973).

[4] See id.

[5] See id.

[6] See id.

[7] See, e.g., Meredith Heagney, Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit (May 15, 2013), available at: Justice Ruth Bader Ginsburg Offers Critique of Roe v. Wade During Law School Visit | University of Chicago Law School (uchicago.edu).

[8] 381 U.S. 479 (1965) (brackets added).

[9] 505 U.S. 833 (1992).

[10] See id.

[11] 579 U.S. 582 (2016); 591 U.S.     , 2020 WL 3492640.

[12] See id.

[13] See, e.g., Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).

[14] See Whole Women’s Health v. Jackson, 594 U.S.      (2021), available at: 21A24 Whole Woman's Health v. Jackson (09/01/2021) (supremecourt.gov).

[15] See id.

[16] See id.

[17] See id.

[18] Id.

[19] Id. (Sotomayor, J., dissenting).

[20] Id. (quoting Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52, 69 (1976)) (brackets in original).

September 5, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, August 29, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, August 29, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court struck a CDC moratorium on evictions during the pandemic. An earlier nationwide moratorium lapsed on July 31, prompting the CDC to impose its own moratorium. This CDC moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions. The Court’s decision allows evictions to resume. The decision held that the CDC lacks the authority to act without explicit congressional authorization and ruled that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” See the per curium order and reports from the Associate Press, NPR, and The Washington Post.

  • The Supreme Court revived the previous administration’s “remain in Mexico” asylum policy, refusing to stay a ruling that banned the Biden administration’s attempt end the policy. The policy requires asylum seekers to remain in Mexico while they await hearings in the United States. The Court stated that the decision to end the policy appeared to be arbitrary and capricious. The decision leaves in place the lower court’s ban, which will be heard by an appeals court. See the order and reports from Reuters, The New York Times, APNews, and NPR.

Appellate Court Opinions and News

  • In a rehearing on the issue, the Second Circuit let stand a lower court’s refusal to grant an injunction against anti-abortion protestors, finding that the district court did not abuse its discretion. New York State sued 13 protestors arguing that protesters crowded women, made death threats against escorts, and blocked the path with posters, which violated the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act, and New York City's Access to Reproductive Health Care Facilities Act. The district decision rejected the injunction motion, finding that the state had not shown that it would face irreparable harm. The panel on rehearing did not rule on the merits because it found that the lower court did not abuse its "considerable discretion" in denying the injunction. See the order and reports from Reuters and Courthouse News.

  • The Ninth Circuit affirmed a lower court’s ruling that denied a motion for preliminary injunction by a landlord group attempting to stop Los Angeles from enforcing an eviction moratorium. The court determined that the group could not show a likelihood of success on the merits, finding that, “even if the eviction moratorium was a substantial impairment of contractual relations,” the city “fairly tied the moratorium to its stated goal of preventing displacement from homes” during a pandemic. See order and reports from Bloomberg and The California Globe.

  • The Fourth Circuit affirmed the death sentence for the gunman who killed nine members of a Black Charleston church in a racially motivated shooting. The court stated that “[n]o cold record or careful parsing . . . can capture the full horror of what [the shooter] did” and that “[h]is crimes qualify him for the harshest penalty that a just society can impose.” The court rejected the argument that the gunman should have been ruled incompetent. The gunman is the first person in the US to be sentenced to death for a federal hate crime. See the ruling and reports from NPR, The Washington Post, and USA Today.

Effective Appellate Advocacy

On September 2, the Ninth Circuit and the Federal Bar Association are sponsoring a free program featuring Judge Margaret McKeown.  Judge McKeown will discuss effective brief writing and oral argument. Find information here



August 29, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

What To Do When Faced With Adverse In-Circuit Precedent

In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.

In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding.[1] In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.”[2] Some state courts of appeal follow the same rule.[3] Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.[4]

The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”[5] It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”[6]

If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.

Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.”[7] For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.[8]

State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.”[9] Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis.[10] Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”[11]

Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana,[12] the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.

The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.

 

[1] See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).

[2] Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

[3] See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).

[4] See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.

[5] Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[6] Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).

[7] Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).

[8] Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).

[9] United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).

[10] Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).

[11] Childers v. Childers, 74 Cal.App.2d 56, 61  (1946) (emphasis in original).

[12] 140 S. Ct. 1390 (2020).

August 29, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, August 19, 2021

The Next Supreme Court Justice: A Case for Greater Diversity

For the Supreme Court, the question of the summer has been whether Justice Stephen Breyer will retire or remain on the Court. Aware that both racial and gender diversity have been historically lacking on the Court, President Biden has promised to nominate an African-American woman if Justice Breyer leaves. Although racial and gender diversity are the most important and most visible considerations in having a diverse Court, President Biden should consider other matters of diversity as well in selecting a nominee.

Racial diversity is a top priority. Only two African-Americans have sat on the Supreme Court, and neither has been a woman. One Hispanic, Justice Sonya Sotomayor, has been a member of the Court. But no Asians or Native Americans have served on the Court.

Gender diversity also is an essential consideration. When asked how many women on the Court would be enough, Justice Ruth Bader Ginsburg famously answered "nine." Although the Court has as many women now as it ever has had at one time, only five women have been justices in the history of the Court. 

The more diverse the Court is the more it will reflect the diversity of the nation. This will benefit the Court by adding different perspectives and by increasing the bar's and the general public's faith in the Court. But the president should not stop at just racial and gender diversity. In addition to race and gender, he should consider other attributes of a prospective justice: experience, geography, education, and religion.

Experience. Recent appointments to the Supreme Court have overwhelmingly come from federal appellate courts (the only current justice not to have been a federal appellate judge is Justice Elena Kagan, who was the Solicitor General before her appointment). The last state court judge appointed to the Court was Justice Sandra Day O'Connor (also the first woman on the Court), who had been on the Arizona Court of Appeals (and also in the state legislature). While it has been said that a federal judge is someone who knows a Senator and a state judge is someone who knows a Governor, there obviously are differences between the two. That being said, many cases come to the Supreme Court directly from the highest court of a state. Having a justice who has worked in a state court system would be a plus.

And who says that Supreme Court justices need to already be judges anyway? It has been quite a while since the appointment of a practicing attorney or academic without judicial experience.

Although Justice Sotomayor was a federal prosecutor, there also generally has been a lack of justices with criminal law experience. How about the appointment of a Public Defender to bring a different perspective?

Geography. It was essential in the early years of the Court that there be geographical diversity because the justices were required to ride the circuits. In recent memory, though, the Court has been the domain primarily of justices who either were from the Northeast or worked there a considerable portion of their careers. When Justice Ginsburg and Justice Antonin Scalia were on the Court, there were four justices from New York City (at least each was from a different borough).

There are two Southerners by birth currently on the Court, Justice Clarence Thomas (Georgia) and Justice Amy Coney Barrett (Louisiana). This is the most representation the South has had on the Court in recent memory. And the appointment of Justice Neil Gorsuch to the Court added a justice originally from a mountain state (Colorado), giving the Court that added perspective.

Although it no longer is necessary to have justices from different regions in order to ride the circuits, the Court best reflects the nation when it reflects the nation's geographic diversity. Further, some matters that come before the Court are unique to certain areas of the country. A justice from one of these areas would be able to contribute knowledge and perspective that other justices may lack.

Education. When Justice Barrett joined the Court, the dominance of Ivy League law schools in producing Supreme Court justices was diminished ever so slightly. Justice Barrett graduated from the University of Notre Dame law school, leaving an even split of law school alma maters among the other justices between Harvard University and Yale University. But it has been many years since any member of the Court has been a graduate of a public university's law school. There certainly must be excellent jurists from top public law schools like the University of California, the University of Michigan, and the University of Virginia who could be nominated. While diversity in law schools attended may not make much difference in perspective, it could help in dispelling the notion that the Court is elitist or somehow out of touch with those who are not.

Religion. Prior to Justice Gorsuch joining the Court, it was composed of six Catholic justices and three Jewish justices. Justice Gorsuch became the first Protestant on the Court since Justice John Paul Stevens. The Court has never had a Muslim justice or any justice who did not identify as Christian or Jewish, nor at least recently has it had a justice that did not identify with some religion. While religious affiliation does not necessarily produce monolithic perspective among justices (see, for instance, Justice Thomas and Justice Sotomayor, both Catholic), diversity in this area would increase confidence in the Court's decisions related to religious matters.

  ***

In the end, perfect diversity is neither required nor achievable. After all, the Court is not a representative body. Even so, the standing of the Court in the eyes of a more and more diverse citizenry would increase if it better reflected this increasing diversity. And the Court itself would benefit from greater diversity of experience, geography, education, and religion as it deals with the difficult and complex issues that come before it.

Although Justice Breyer may not retire this year, a new justice will be nominated sooner or later. When that happens, the President should consider a variety of diversity matters in addition to race and gender.

August 19, 2021 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, August 15, 2021

Requesting Reconsideration of Precedent

In rapid succession, the Supreme Court recently received three briefs asking it to overturn different precedents. The one that got widespread national attention was Mississippi’s brief in the high-profile case being heard next term, Dobbs v. Jackson Women’s Health Org.,[1] which asks the Court to overturn Roe v. Wade.[2] Then, on the heels of that brief, a petition for certiorari asked the Court to overrule Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.[3] Soon afterwards, Oklahoma filed a petition seeking reconsideration of the Court’s one-year-old, 5-4 ruling in McGirt v. Oklahoma.[4]

The unusual spate of requested nullifications of existing precedent plainly reflects a calculation that the Supreme Court’s new majority is less tied to stare decisis than their predecessors. Still, each brief makes an effort to provide grounds why stare decisis should not insulate the targeted decisions from reassessment. A review of the arguments against simply following precedent provides lessons for appellate counsel confronting an unavoidable but adverse controlling decision.

To be sure, the doctrine of stare decisis remains a “foundation stone of the rule of law” and the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[5] The Court has deemed that following precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.”[6] Still, stare decisis is not an “inexorable command” or “‘mechanical formula.’”[7] In constitutional cases, stare decisis has less gravitational pull because “correction through legislative action is practically impossible.”[8]

 Dobbs presents the politically voluble issue of abortion, which has percolated for years, dominated national politics at times, and influenced Supreme Court appointments and confirmations. The potential impact of the issue in the political arena is inseparable from the legal arguments made, simply because the conversations in both playing fields have merged. That happenstance probably allows counsel to undertake a more opinionated and overtly political argument than might be prudent in other cases, particularly when some of the justices have expressed similarly strong opinions on the relevant jurisprudence.

In that vein, Mississippi’s brief asserts that both Roe and the subsequent decision in Planned Parenthood of S.E. Pa. v. Casey,[9] “are egregiously wrong” and lack any “basis in text, structure, history, or tradition, leading to a hopelessly unworkable” legal framework. The brief’s unworkability argument is not a traditional one, though. In most instances, unworkability focuses on why an adopted test or stance fails to resolve recurring problems or issues. It asserts that the lower courts do not apply it consistently so that application of the precedent produces inconsistent results.

Mississippi’s brief frames its unworkability argument in terms of the frustration that States experience when they seek to end or heavily regulate abortion, blaming the application of heightened scrutiny when, it claims, rational-basis analysis should apply. The argument reminds a reader of the “heckler’s veto” in First Amendment law, because it relies on the sustained objections of opponents as a basis for claiming that the Court should recede from precedent. In this instance, it asserts that Roe and Casey have not contributed to a settled state of the law because they tend to block laws that Mississippi favors. In this brief, unworkability appears only as an obligatory nod. Mississippi’s argument really depends on justices’ agreeing that abortion should not receive constitutional protection so that laws restricting it are reviewed by the most deferential form of scrutiny.

Egbert v. Boule[10] seeks the abandonment of an equally longstanding precedent, Bivens, but one that has had a lower public profile. Still, it boasts a vocal set of opponents in government and academia. Bivens and its progeny implied a direct cause of action under the Constitution for federal officer violations of the Fourth and Eighth Amendments, as well as due process.  Yet, more recently, the Court has taken a narrowing view of Bivens and even suggested that the current Court would not have reached the same decision as the Bivens Court about implying a cause of action.[11]

The petition’s unworkability argument emphasizes the Ninth Circuit’s more expansive view of Bivens in the case submitted for review to show that Bivens is irreconcilable with more recent precedent and therefore provides an uncertain basis for implying a constitutional cause of action that the lower courts cannot uniformly apply. Coming in the context of a lawsuit against a Border Patrol agent stationed near the Canadian border for First and Fourth Amendment violations, the petition claims “that judicially crafted Bivens actions could skew agents’ decision-making about whether and how to investigate suspicious activities in carrying out their important national-security mission.” Playing to the jurisprudential predilections of a majority of the Court, the petition asks that it “bring this important area into line with the Court’s modern jurisprudence respecting the separation of powers and recognizing Congress’ primacy in creating causes of action.”

Oklahoma’s petition in Oklahoma v. Bosse[12] attempts a rare, though not unheard of feat: the overruling of a fresh precedent. Only last year, in McGirt, the Supreme Court held a large swath of Oklahoma remained part of the Muscogee (Creek) Reservation and subject to federal, not state, criminal law jurisdiction under an 1885 statute. What makes the Bosse petition credible was the immediate impact that McGirt had on future criminal prosecutions in Oklahoma, even if the effect on past prosecutions was expected.

The Bosse petition asserts that McGirt was wrong and has already had disastrous consequences, sending thousands of crime victims on a mercurial adventure to “seek justice from federal and tribal prosecutors whose offices are not equipped to handle those demands.” At the same time, it tells the justices that public safety is endangered as “crimes are going uninvestigated and unprosecuted,” confirming the worst fears of the McGirt dissenters.

The overruling of a recent Supreme Court decision, as Oklahoma seeks in Bosse, is not unprecedented. One prominent example occurred in the Flag Salute Cases. In 1940, the Supreme Court decided Minersville Sch. Dist. v. Gobitis, holding that a school district did not violate the rights of several schoolchildren who were expelled because they had religious objections to participating in the school’s morning flag-salute ceremony. Those objections led to accusations that Jehovah’s Witnesses, the religion of the expelled schoolchildren, were unpatriotic, releasing a wave of terrorism against its followers. The intolerance generated by the decision caused three members of the Gobitis majority to re-think their position. When joined by new appointee, the formerly 8-1 decision turned around to uphold a right to object to pledging allegiance as a right of conscience in West Virginia Bd. of Ed. v. Barnette.[13]  Remarkably, the new decision also ended the terroristic attacks on the Witnesses. Still, Bosse may have a higher climb than Barnette had to swing a member of the majority to the other side.

Each of these briefs demonstrate three things when asking a Court to overrule prior precedent. First, know your audience. If a court has expressed misgivings about a precedent, that become fodder for your request to abandon stare decisis. Second, explain why the precedent fails to achieve the stability that stare decisis is supposed to bring about. Third, make the consequences of staying with precedent seem as dire and bleak as possible. There is no guarantee that checking these boxes will bring about your desired result, but their absence almost guarantees failure. Advocates, no doubt, will watch developments in these cases closely to see if they succeed.    

 

[1] No. 19-1392, Br. for Petitioners (S.Ct. Jul. 22, 2021).

[2] 410 U.S. 113 (1973).

[3] 403 U.S. 388 (1971).

[4] 140 S. Ct. 2452 (2020).

[5] Payne v. Tennessee, 501 U.S. 808, 827 (1991).

[6] Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).

[7] Id. at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).

[8] Id. (quoting Burnet, 285 U.S. at 407 (Brandeis, J., dissenting)).

[9] 505 U.S. 833 (1992).

[10] 21-147, Pet. for Certiorari (S.Ct. Jul. 30, 2021).

[11] Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).

[12] No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).

[13] 319 US 624 (1943).

August 15, 2021 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, August 1, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, August 1, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • High School SCOTUS blog founder, Anna Salvatore, moderated "Reporting on the Supreme Court" this week. The event, presented by The Daily Princetonian and the American Whig-Cliosophic Society, featured panelists Chris Geidner, MSNBC columnist and previous legal editor at BuzzFeed; David Lat, Founder of Original Jurisdiction and Above the Law; and Kimberly Robinson, Supreme Court correspondent for Bloomberg Law.

  • Reuters posted a review of the Supreme Court’s “shadow docket” this week. Find it here.

  • A July Gallup poll reports a 49% approval rating for the Supreme Court, which is the first time since 2017 that the rating has been below the majority level. See the Gallup New report.

 Appellate Court Opinions and News

  • The Ninth Circuit reversed and remanded a district court ruling that had upheld California’s school closure during the pandemic. In reversing, the court held that the closing of private schools violated parents’ Due Process rights to determine the forum of their children’s education and determined that the closure ruling should be held to strict scrutiny. The court held that the “right of parents to make decisions concerning the care, custody, and control of their children is a fundamental liberty interested protected by the Due Process Clause,” which includes the right to choose the “educational forum itself.” See the opinion and a report from the LA Times.

  • The Sixth Circuit ruled that the CDC had exceeded its authority when it temporarily halted evictions during the pandemic. The CDC’s order replaced and expanded Congress’s 120-day moratorium on rental properties that participated in federal assistance programs or that had federally backed loans. Now set to expire on July 31, the CDC’s order applied to all rental properties nationwide.  See the order and reports from ABA Journal, The Hill, and Reuters.

  • The Tenth Circuit rejected a wrongful death claim against a Colorado recreation company and ruled that the lower court properly applied Colorado law to determine that the decedent had waived liability against the company. The plaintiff argued that Texas law should apply since the decedent, a resident of Texas, signed the waiver while in Texas. The court reasoned: "If we applied Texas law because it is the state where [the decedent] signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical." See the decision and report in The Gazette.

  • The Ninth Circuit rejected a meat industry appeal that challenged California’s animal confinement standards as unconstitutional. California’s Proposition 12 (the “Farm Animal Confinement Initiative”) is a voter-approved law that regulates the production of veal, pork, and eggs sold in California; it forbids the sale of meat from animals not housed within its “stand-up-turn-around” requirement. The challenge argued that the regulation had the effect of controlling nationwide meat production standards, which violates the Extraterritoriality Doctrine of the Commerce Clause. The court rejected the argument, narrowly interpreting extraterritoriality as applying only to laws that dictate the prices of products. The court reasoned: “It is undisputed that Proposition 12 is neither a price-control nor price-affirmation statute, as it neither dictates the price of pork products nor ties the price of pork products sold in California to out-of-state prices.” See the decision and reports from Bloomberg Law and Courthouse News.

August 1, 2021 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Do Rhetorical Flourishes Have a Place in Judicial Opinions . . . or Appellate Briefs?

Judges have considerable freedom to write opinions as they like. They write for a broad audience. A judicial opinion speaks not just to the case’s lawyers and their clients, but to other judges, the legal academy, and perhaps, most importantly, the lay public. Even though most judicial opinions will not penetrate the public consciousness, the decision in a case should seek to demonstrate the elements we associate with thoughtful and considered judging. Still, in a world where social media champions the clever turn of phrase and even the burning insult, readers should not be surprised when judges adopt a vernacular not often associated with legal writing.

Some subject matters will not open the door to that type of accessible writing. Justice Elena Kagan once announced the opinion of the Court on a rather dry issue concerning the Anti-Injunction Act with: “If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.” On the other hand, as an inveterate comic book superhero enthusiast, Kagan could not resist throwing in a gratuitous line in a patent infringement case involving “Spider-man”: “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)”[1] and citing an issue of the comic book as authority elsewhere in the opinion.[2]

Indeed, her late colleague, Justice Antonin Scalia, is remembered as much for his pointed barbs and colorful jargon as he is for his dedication to a form of originalism in interpreting the Constitution. For example, lamenting the much-criticized Establishment Clause test from Lemon v. Kurtzman,[3] Scalia memorably described its usage after a long period in hybernation as being “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, . . . frightening the little children and school attorneys of [defendant school district].”[4]

Yet, the same reasons that cause some of us to remember that opinion prompted University of Wisconsin law professor Nina Varsava to write that judicial writing that turns opinions into a “compelling and memorable narratives” ill serves the “integrity of the judicial role and the legitimacy of the adjudicative process” in a forthcoming law review article.[5] Professor Varsava recognizes that commentators love a lively and engaging style that seems to burnish the judicial reputations of those who write in a striking style all their own. Nonetheless, she advocates a more “even-keeled and restrained institutional style.” She rationalizes this plea by critiquing more stylistic writing as “ethically dubious” because it undermines a judge’s “most fundamental professional responsibilities.” To Professor Varsava, judicial opinions are not in the persuasion business, but instead serve a more pedagogical purpose. 

Tellingly, Professor Varsava disagrees with Justice Kagan, who has said that “[t]here’s no rule against fun in [opinions].” The professor argues that “perhaps there should be such a rule.” Indeed, Professor Varsava imagines that judges could be constrained by enforceable regulations in the form of “internal court rules, rules of judicial conduct, or even statutory requirements.”

However interesting Professor Varsava’s take on opinion-writing is, and there is great reason to believe that enforcing it through rules or statutes is a dog that won’t hunt, to use a phrase the professor would surely reject, does her plea for more balanced and straightforward writing hold any value for the appellate advocate?

Unlike a judicial opinion, a brief targets a very specific and limited audience: the panel of judges who will decide the case. In many instances, the panel of judges who will hear the case is often unknown until after briefing is complete and suggests a certain amount of caution. Rhetorical flourishes and witty allusions may make for good reading, but can also detract from the persuasiveness of an otherwise well-founded argument. It may well put off a judge who equates the infusion of colloquial speech into the brief as disrespectful or an attempt to lend cover to a weak case.

To be sure, unlike Professor Varsava’s view of judicial opinions, briefs are written to persuade. To hammer home a point and perhaps make it more memorable, an occasional flashy phrasing or telling metaphor can serve a highly useful purpose. Still, there are limits that lawyers must recognize in an exercise of professional judgment.

Even so, judicial rhetoric can provide some license for flights of fancy in briefs. A Brandeis, writing a judicial opinion, might usefully explain why irrational fears cannot justify the suppression of speech by stating that “[m]en feared witches and burnt women,”[6] but it is difficult to imagine how those words could have been made in a brief – except by quoting and citing the Brandeis opinion.

 

[1] Kimble v. Marvel Ent., LLC, 576 U.S. 446, 450 (2015) (emphasis added).

[2] Id. at 465 (“Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider–Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”)).

[3] 403 U.S. 602 (1971).

[4] Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).

[5] Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825848.

[6] Whitney v. California, 274 U.S. 357, 376  (1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).

August 1, 2021 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 27, 2021

Waiting for Warrants? Chief Justice Roberts’s conflicting opinions on the speed of warrant applications in Lange and McNeely.

    In his recent concurring opinion in Lange v. California, Chief Justice Roberts argued in favor of a robust version of a “hot pursuit” exception to the warrant requirement. His argument was motivated, in part, by a concern that officers would waste too much time if forced to obtain a warrant in those exigent circumstances. Interestingly, though, Roberts’s claims about the time-consuming nature of the warrant application process were contradicted by another opinion Roberts himself authored just eight years earlier in Missouri v. McNeely. The conflicting opinions are not just confusing. They generate conflicting incentives for police departments to invest in flexible and efficient procedures to approve warrants, threatening to undermine advancements that help preserve Fourth Amendment rights.

    In his Lange opinion, Roberts claimed that while a suspect flees into their home, “even the quickest warrant will be far too late.”[1] Roberts cited to an amicus brief submitted by the Los Angeles County Police Chiefs’ Association, which argued that “[a] ‘fast’ warrant application may be processed in an hour and a half if factors are favorable (e.g., it occurs during normal court hours, has strong supporting facts, receives quick responses from the magistrate or judge, etc.).”[2] The Association suggested that even more support is needed for an arrest warrant, such as evidence of a completed investigation, and that such warrants are rarely issued quickly absent compelling reasons.[3] In his opinion, Roberts went on to claim that “[e]ven electronic warrants may involve time-consuming formalities,” such as a written application or an in-person appearance.[4] Thus, Roberts argued that limitations on the hot pursuit branch of exigent circumstances would allow reckless suspects to freely elude warrantless capture.

    But Roberts’s views on the laboriousness of the warrant application process directly contradicted his own concurring opinion in 2013’s Missouri v. McNeely just eight years earlier. In McNeely, Roberts claimed that “police can often request warrants rather quickly these days,” including electronic warrant applications that were available in at least 30 states at the time.[5] Roberts specifically cited Utah’s e-warrant procedures, whereby “a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes.”[6] Similarly, officers in Kansas can email warrant requests to judges and receive responses in less than 15 minutes.[7]

    Which Chief Justice Roberts was right? In truth, both. Neither opinion presented incorrect or inaccurate information. Roberts correctly described the common plight of officers in Los Angeles, while also accurately presenting the capabilities of e-warrant systems in Utah and Kansas. But his selective approach to the data in each presented conflicting images of uniform procedures and time frames for obtaining warrant across the country. As these opinions demonstrate, such uniformity does not exist across jurisdictions.

    Sweeping such disuniformity under the rug is particularly troubling. It disincentives jurisdictions from creating more efficient warrant application procedures. In McNeely, Roberts seemed to speak with approval about the evolution of e-warrants, suggesting that they may resolve many of the problems presented in emergency cases while still maintaining the neutral magisterial review of warrant applications that our Constitution typically requires. But in Lange, Roberts seemed to reward jurisdictions that have been slower to develop those kinds of warrant regimes. Roberts suggested that in such jurisdictions, perhaps obtaining a warrant to respond to a rapidly-evolving emergency is entirely unnecessary.

    Why, then, would jurisdictions continue to develop those efficient methods for warrant applications? Roberts’s suggestion removes one of the primary incentives to duplicate procedures like those in Utah and Kansas. Only if court decisions look upon those programs with favor and reward those jurisdictions for their efforts will policymakers continue to build such programs. Roberts’s flip-flop is thus a dangerous one for the future of e-warrant procedures. His earlier views provide a much greater incentive for the continued development of rapid warrant procedures that can resolve many Fourth Amendment issues in modern policing.

 

[1] Lange v. California, 594 U.S. __ (2021) (slip op. at 9) (Roberts, C.J., concurring).

[2] Brief of Los Angeles County Police Chiefs’ Association As Amicus Curiae in Support of the Judgment Below 24-25, Lange v. California, 594 U.S. __ (2021), https://www.supremecourt.gov/DocketPDF/20/ 20-18/166350/20210114161910913_40463%20pdf%20Ito%20br.pdf.

[3] Id. at 25.  

[4] Lange, slip op. at 9 (Roberts, C.J., concurring) (citing Colo Rev. State. § 16-3-303 (2020) and Mass. Gen. Laws, ch. 276, §2B (2019)).

[5] Missouri v. McNeely, 569 U.S. 141, 172 (2013) (Roberts, C.J., concurring).

[6] Id. at 172–73 (citations and quotations omitted).

[7] Id. at 173 (citations and quotations omitted).

July 27, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Professionalism in Legal Writing – Dos & Don’ts, Part IV

Professionalism in Legal Writing – Dos & Don’ts, Part IV

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fourth post in the series.

Do adopt a clear and persuasive style:

  • Do put material facts in context.

The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.

Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:

The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).[2]

The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.

  • Do write in a professional and dignified manner.

Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.

I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.

  • Do put citations at the end of a sentence.

We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their[3] job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.

  • Do use pinpoint citations when they would be helpful.

They’re always helpful.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf

[3] Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/

July 27, 2021 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, July 23, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 23, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • Mississippi’s attorney general has asked the Supreme Court to overturn Roe v. Wade, calling it “egregiously wrong.” The Court will ear argument this fall on whether to allow Mississippi’s law that bans most abortions after 15 weeks. See the Brief for Petitioners and reports from The New York Times, The Wall Street Journal, Reuters, and Bloomberg News.

  • Adam Feldman wrote an analysis of the 2020-21 Supreme Court shadow docket; it was posted on The Juris Lab. Coined by Professor William Baude, the term “shadow docket” refers to the Court’s decisions made outside the regular docket and without oral argument. 

 Appellate Court Opinions and News

  • The DC Court of Appeals tossed a Constitutional challenge against Speaker Nancy Pelosi and a House resolution to create a proxy voting system to allow remote legislating during the pandemic. The court determined that it did not have jurisdiction to review rules and procedures of the House. The court agreed with the lower court decision that “the resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution’s Speech and Debate Clause.” See the decision and reports from The Hill and The New York Times.

  • The Tenth Circuit upheld as constitutional a law that permits the revocation of the passport of a person who owes taxes. Thus, the court determined that international travel is not a fundamental right. This ruling is the first of its kind. See the decision and reports from Bloomberg Law and The Gazette (CO).

  • The US District Court for the Northern District of Indiana denied a petition to preliminarily enjoin an Indiana University Covid policy that requires all students and staff to be vaccinated, with exceptions for religious, ethical, or medical reasons. The policy requires those who are unvaccinated to take special precautions including wearing masks, taking additional Covid tests, and quarantining during an outbreak. The court weighed individual freedoms against public health concerns and found that the petitioners did not show they would suffer irreparable harm. The court held that “[t]he university is presenting the students with a difficult choice — get the vaccine or else apply for an exemption or deferral, transfer to a different school, or forego schools for the semester altogether. … But, this hard choice doesn't amount to coercion.” See the decision and reports from NPR, USA Today, and The Wall Street Journal.  

  • The Fourth Circuit has ruled that gun laws barring sales to those under 21 are unconstitutional because they restrict the rights of citizens. The court wrote: “Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18-to-20-year-olds to a second-class status.” See the decision and reports from CNN, USA Today, and The Hill.

July 23, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)