Appellate Advocacy Blog

The Journal of Appellate Practice and Process: Volume 25, Issue 1

The Journal of Appellate Practice and Process is a must-read for appellate advocates and judges. The latest issue is no exception. It begins with an article by Professor Michael J. Hasday titled Accuracy and the Robot Judge. This article explores whether it can be shown that robot judges are more accurate than human judges. The next article, Judging Class Certification as a Matter of Law, by Attorney Brian Sutherland suggests that courts should review class certification decisions as questions of law rather than as matters of discretion. In Driving Efficiency and Public Confidence: Integrating Quality Management Practices in the Federal Appellate Court System, Jarrett B. Perlow, the Circuit Executive and Clerk of Courts for the Federal Circuit, shares data on federal court performance and quality measures. Professor Colleen Garrity Settineri's article In Conclusion, . . . " Are We Missing an Opportunity to Persuade? shares the first taxonomy of possibilities for the conclusion section of a brief. The issue concludes with two book reviews. The first,  The Case for a Casebook on Legal Writing: A Review of The Case for Effective Legal Writing, written by Justice Gerald Lebovits, reviews the first casebook on legal writing, The Case for Effective Legal Writing, by Professors Diana Simon and Mark Cooney. And Professor Sylvia J. Lett gives us Book Review: Reading the Constitution: Why I Chose Pragmatism, Not Textualism, a review of Justice Stephen Breyer's latest book, Reading the Constitution: Why I Chose Pragmatism, Not Textualism.

“My Bad,” but “Too Bad”?

I began writing this post Friday evening intending to discuss obligations of an attorney as an officer of the court and its intersection with the presidential attack on law firms. I toyed as well with explaining why an executive order is not law but seeks to implement existing law through obligations imposed on the Executive Branch, in spite of the considerably larger authority that recent executive orders suggest exist as a primer for appellate lawyers asked about them.

However, as I was writing, breaking news interrupted these thoughts. Earlier in the day, U.S. District Court Judge Paula Xinis issued an order that the defendants, who include the Secretary of Homeland Security, the Attorney General, and the Secretary of State, must return Kilmar Armando Abrego Garcia to the United States by Monday at midnight. I chose to write about this case for this blog because, as it plays out, it will say much about the truth-seeking function of our justice system, the efficacy of appeals, and the authority of courts to develop a remedy.

Abrego Garcia, a native of El Salvador, entered the U.S. illegally in 2011 at age 16, fleeing gang violence at home and joining his American-citizen brother in Maryland. Over the years in the U.S., he married an American citizen with two children and had another child with his wife. In 2019, he was targeted for deportation because of alleged MS-13 gang ties in New York, where he had never lived, and because he had tattoos and wore a Chicago Bulls hat, as well as a hoodie, which was deemed evidence of gang membership. He prevailed before the immigration judge and received an order giving him “withholding of removal” status in light of the threat of gang violence to him if he returned to El Salvador. The court order meant he could never be deported to the place of his birth.

When he was stopped by immigration authorities again last month, Abrego Garcia was returning home from work after retrieving his five-year-old autistic son from day care. Although he was not Venezuelan, he was shuttled off without a hearing to the mega-prison in El Salvador known as the Terrorism Confinement Center as part of the roundup of alleged Tren de Aragua gang members that is the subject of a different lawsuit pending in federal court in Washington, DC.

There are many concerning aspects to the legal case, including a substantial disconnect between what the Justice Department lawyer told the court and what the White House is saying. The court received a sworn statement from an acting director of the Enforcement Removal Operations that called Abrego Garcia’s deportation an “administrative error” and “oversight,” because they did not connect the “do not remove” order to him. The Justice Department lawyer conceded that Abrego Garcia should not have been deported but asked Judge Xinis for 24 hours to convince his client, the United States, to seek the prisoner’s return from El Salvador. She denied the request for a delay. Yet, in a filing earlier in the week, the U.S. sought to justify the deportation by claiming Abrego Garcia was a member of the El Salvadoran gang, MS-13. Without an offer of proof, the judge characterized the charge as “just chatter.” (On Saturday, ABC News reported that the Justice Department put the attorney on leave for a “failure to zealously advocate” for the government’s position; His supervisor was also put on leave for “failure to supervise a subordinate.)  

After Friday’s order to return Abrego Garcia to the U.S., White House deputy chief of staff Stephen Miller called Judge Xinis a “Marxist,” who “now thinks she’s the president of El Salvador.” White House press secretary Karoline Leavitt doubled down on the gang-membership claim by saying Abrego Garcia was convicted of being an MS-13 member and that she had seen the record of that, which was in ICE’s control. Vice President JD Vance echoed that stance. The assertion is particularly odd because a conviction would be a public record, and the only public record apparently shows the opposite result.

“We suggest the Judge contact President Bukele [of El Salvador],” Leavitt added, “because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” The latter comment is in line with the Justice Department’s earlier position that it has no control over El Salvador and what it does with the prisoners. It is a position that seems difficult to credit and at odds with the administration’s claim that El Salvador was holding these prisoners pursuant to a contract with the United States. Certainly, the U.S. had no difficulty obtaining El Salvador’s cooperation to stage a photo op at the prison for Homeland Security Secretary Kristi Noem earlier in the week.

As Abrego Garcia’s attorney, put it to Judge Xinis, the government’s position is “We’ve tried nothing and we’re out of options.” If accurate, that is not a position any judge is likely to tolerate.

Although the political actors in the White House are sounding defiant and have replaced their counsel in the courts, the Justice Department has appealed the order to the Fourth Circuit. The case seems unlikely to end there. How it proceeds from here will teach the appellate bar a great deal about the process we are part of, what is possible, and how the justice system works or doesn’t work more generally.  

“My Bad,” but “Too Bad”?

I began writing this post Friday evening intending to discuss obligations of an attorney as an officer of the court and its intersection with the presidential attack on law firms. I toyed as well with explaining why an executive order is not law but seeks to implement existing law through obligations imposed on the Executive Branch, in spite of the considerably larger authority that recent executive orders suggest exist as a primer for appellate lawyers asked about them.

However, as I was writing, breaking news interrupted these thoughts. Earlier in the day, U.S. District Court Judge Paula Xinis issued an order that the defendants, who include the Secretary of Homeland Security, the Attorney General, and the Secretary of State, must return Kilmar Armando Abrego Garcia to the United States by Monday at midnight. I chose to write about this case for this blog because, as it plays out, it will say much about the truth-seeking function of our justice system, the efficacy of appeals, and the authority of courts to develop a remedy.

Abrego Garcia, a native of El Salvador, entered the U.S. illegally in 2011 at age 16, fleeing gang violence at home and joining his American-citizen brother in Maryland. Over the years in the U.S., he married an American citizen with two children and had another child with his wife. In 2019, he was targeted for deportation because of alleged MS-13 gang ties in New York, where he had never lived, and because he had tattoos and wore a Chicago Bulls hat, as well as a hoodie, which was deemed evidence of gang membership. He prevailed before the immigration judge and received an order giving him “withholding of removal” status in light of the threat of gang violence to him if he returned to El Salvador. The court order meant he could never be deported to the place of his birth.

When he was stopped by immigration authorities again last month, Abrego Garcia was returning home from work after retrieving his five-year-old autistic son from day care. Although he was not Venezuelan, he was shuttled off without a hearing to the mega-prison in El Salvador known as the Terrorism Confinement Center as part of the roundup of alleged Tren de Aragua gang members that is the subject of a different lawsuit pending in federal court in Washington, DC.

There are many concerning aspects to the legal case, including a substantial disconnect between what the Justice Department lawyer told the court and what the White House is saying. The court received a sworn statement from an acting director of the Enforcement Removal Operations that called Abrego Garcia’s deportation an “administrative error” and “oversight,” because they did not connect the “do not remove” order to him. The Justice Department lawyer conceded that Abrego Garcia should not have been deported but asked Judge Xinis for 24 hours to convince his client, the United States, to seek the prisoner’s return from El Salvador. She denied the request for a delay. Yet, in a filing earlier in the week, the U.S. sought to justify the deportation by claiming Abrego Garcia was a member of the El Salvadoran gang, MS-13. Without an offer of proof, the judge characterized the charge as “just chatter.” (On Saturday, ABC News reported that the Justice Department put the attorney on leave for a “failure to zealously advocate” for the government’s position; His supervisor was also put on leave for “failure to supervise a subordinate.)  

After Friday’s order to return Abrego Garcia to the U.S., White House deputy chief of staff Stephen Miller called Judge Xinis a “Marxist,” who “now thinks she’s the president of El Salvador.” White House press secretary Karoline Leavitt doubled down on the gang-membership claim by saying Abrego Garcia was convicted of being an MS-13 member and that she had seen the record of that, which was in ICE’s control. Vice President JD Vance echoed that stance. The assertion is particularly odd because a conviction would be a public record, and the only public record apparently shows the opposite result.

“We suggest the Judge contact President Bukele [of El Salvador],” Leavitt added, “because we are unaware of the judge having jurisdiction or authority over the country of El Salvador.” The latter comment is in line with the Justice Department’s earlier position that it has no control over El Salvador and what it does with the prisoners. It is a position that seems difficult to credit and at odds with the administration’s claim that El Salvador was holding these prisoners pursuant to a contract with the United States. Certainly, the U.S. had no difficulty obtaining El Salvador’s cooperation to stage a photo op at the prison for Homeland Security Secretary Kristi Noem earlier in the week.

As Abrego Garcia’s attorney, put it to Judge Xinis, the government’s position is “We’ve tried nothing and we’re out of options.” If accurate, that is not a position any judge is likely to tolerate.

Although the political actors in the White House are sounding defiant and have replaced their counsel in the courts, the Justice Department has appealed the order to the Fourth Circuit. The case seems unlikely to end there. How it proceeds from here will teach the appellate bar a great deal about the process we are part of, what is possible, and how the justice system works or doesn’t work more generally.  

Seeking the “Hail Mary” from Oral Argument by Taking a Maximalist Position

Appellate counsel may face situations where no reasonable answer exists to questions judges ask at oral argument. The problem might stem from bedrock adverse precedent. The dilemma could flow from a position taken by trial counsel that boxes in the appeal, such as waiver of an issue or a dispositive concession made in court. Or the predicament could result from a client’s insistence on a particular position no matter how farfetched or how it ties counsel’s hands. An obligation for zealous advocacy comes into conflict with reality.

A decade ago, the Supreme Court issued a sua sponte show cause order against a lawyer for filing a cert petition written by his non-lawyer German client. Many readers found the petition unintelligible, and some speculated that it was written in German without an understanding of what a petition must say and translated through an app without further editing. A bizarre footnote acknowledged the “significant contributions” of the client in writing the petition. A plea for mercy apparently worked. Although the Supreme Court did not discipline the lawyer, it issued a warning that lawyers must take responsibility for what they do in court and certainly not hand off their responsibilities to a client.

I recalled the incident, and what seemed like good advice, as I read reports of recent appearances before various courts by government lawyers defending the Trump administration’s new policies. More than defending some of these policies, they seem to have staked out positions designed to curry favor with their client, rather than with the courts. That’s why we see strange defenses of non-compliance by trying to indicate that only written orders, not oral ones, are binding. It is difficult to imagine facing a judge and attempting to make that argument – and the lawyer in the deportation case chose not to go there, admitting that he understood the court’s order.

Judges’ questions often cut to the heart of the matter, and the reports often show that this truism has occurred with regularity in these challenges. Last week, for example, the D.C. Circuit heard argument in a consolidated challenge to firings of board members at the National Labor Relations Board and the Merit Systems Protection Board. Both boards are independent agencies with legislated protections against political firings and bipartisan membership requirements. Through the firings, the Trump administration is challenging the authority of Congress to insulate the boards and their appointees from presidential control.

If the case reaches the Supreme Court, it will put Humphrey’s Executor v. United States, 295 U.S. 602 (1935), into the crosshairs. Humphrey's Executor held that independent agencies (in that instance. the Federal Trade Commission) discharge duties of a legislative and judicial nature, so that the president lacks the constitutional power to remove its commissioners as he would an executive branch agency except for reasons Congress specified in the boards’ organic act. Many courtwatchers believe a majority of the current justices disagree with that type of limitation on executive power and will overturn Humphrey's Executor.

When the case was argued in the DC Circuit last week, Judge Karen Henderson asked the Justice Department lawyer, “Could the President decide that he wasn’t going to appoint or allow to remain in office any female heads of agencies or any heads over 40 years old?” The DOJ lawyer attempted to parse the question, answering that, yes, that would be within the president’s removal powers even if there were “separate questions” about whether other constitutional provisions might block that action.

The answer struck me as ill-advised, and Judge Justin Walker suggested that the lawyer probably didn’t have to take on the burdens that such an answer posed. Practiced instinct suggests that you attempt to be on the same page as the judge, showing that of course the Constitution bars that type of discrimination before putting forward your defense of what happened in the case before the Court. That way, you align with the questioner in recognizing some outer perimeters for what your position is, while trying to make what you are defending defensible and different from the extreme case.

Credibility is incredibly important in addressing a court. A disingenuous answer, or one that attempts to spin the law in ways that a court can see through, does not help the lawyer move a court that is not already inclined to favor that position. Yet, as I thought about what happened, I realized that extreme positions sometimes work. Many experienced appellate lawyers were shocked, as I was, when Solicitor General-designate  D. John Sauer told the D.C. Circuit in the presidential immunity case that our chief executive had the authority, immune from criminal prosecution (although not possible impeachment), to order Seal Team 6 to assassinate a political opponent in response to a judge’s question. Predictably, it resulted in a ruling from that court that there was no immunity against the charges the then-former president faced. But it seems that Sauer had his eyes on a higher court even as he appeared in the DC Circuit.

Justice Sotomayor raised the same question during oral argument in the Supreme Court. This time, Sauer was less categorical, saying it depended on the hypothetical, while still maintaining it “could” be an official act.

Still by taking a maximalist position in the DC Circuit, he kept alive the possibility that the Supreme Court would as well – and it did. As I said at the time, the Supreme Court essentially said there is immunity from issuing such an order to Seal Team 6, but not to the Proud Boys. As a matter of constitutional law that makes no sense to me.

Subsequent reporting in the N.Y. Times suggests that a majority of the Court, and the chief justice in particular, had already staked out a position on immunity before the case arrived there. The article suggests that this was an instance of a court already inclined to an argument regardless of what the advocate did.

That leaves us to ponder whether taking the maximalist position was a wise strategic choice. At a hearing on his nomination to be solicitor general, a senator posed the Seal Team 6 question again to see if Sauer would maintain the same position as the lawyer for the United States. This time, Sauer deflected. “The hypothetical you’ve offered, respectfully,” Sauer answered, “is so outlandish, I don’t know if I’m positioned to address it.” The movement he demonstrated by his three answers suggests that knowing who is judging your answers makes all the difference in how far you will, and should, go.

It Takes Four Votes, But Count to Five

Just as rubbernecking at the scene of a car crash is difficult to ignore, appellate advocates find it difficult to ignore the path from the trial courts to the Supreme Court for the various challenges to the new administration’s claims of executive authority that go well beyond the unitary executive theory. Some of it will unquestionably be held illegal or unconstitutional; some of it upheld. Friends will ask what the courts are doing, or what they might rule. Consider this an orientation on one set of cases and why casual observers might not see the full picture of the courts’ slow and tentative approach to what is unfolding.

For its unusual path to the Supreme Court and likely return, I want to focus on two separate cases that became one and challenged the administration’s freeze on foreign aid. Federal District Court Judge Amir Ali issued a temporary restraining order very quickly, as those types of injunctions usually occur. The plaintiffs soon returned to court asking for an enforcement order, claiming that the government had not complied with the order by releasing any money. The order was issued, and the administration was required to file a status report about its compliance with the order.

The government appealed to the DC Circuit, which turned the appeal down because it has no jurisdiction to hear an appeal from a TRO and that the requirements for seeking a writ of mandamus had not been met. The government petitioned Chief Justice Roberts, as the circuit judge, for a stay pending appeal and an administrative stay of the impending deadline set by Judge Ali’s order. The chief justice granted the administrative stay while the full Court considered further action.

Meanwhile, the government filed its status report with the district court, asserting that it had conducted a careful review of the thousands of State Department and USAID grants, contracts, and cooperative agreements in the course of a couple of days and found that all were subject to immediate termination. In other words, compliance with the TRO was not necessary. The plaintiffs returned to court asserting the report demonstrated the administration’s defiance of the court’s order requiring the restoration of foreign aid. Judge Ali issued a limited order requiring that, within 48 hours, the government pay all invoices and letters of credit drawdowns for work already completed before the TRO was issued and otherwise take all necessary actions to ensure “prompt payment of appropriate foreign-assistance funds going forward” without a deadline.

The Supreme Court then acted, issuing a 5-4 per curiam decision that treated the government’s application as too late given that the 48-hour deadline for paying already obligated funds had passed, but nonetheless ordering the district court to clarify the government’s obligations to comply with the TRO, taking the feasibility of mustering the funds into account. Justice Alito authored a comparatively lengthy dissent, characterizing the order upheld by the majority as a $2 billion burden on taxpayers “not because the law requires it, but simply because a District Judge so ordered.” Of course, the district court emphasized that the order was compelled by congressional spending mandates and contractual obligations that were legally binding so it hard to reconcile Justice Alito’s complaint about judicial overreach on behalf of four justices with  what had occurred.

What makes the action by the Supreme Court even more interesting than what each side said is the likelihood that the case will return for a merits review. Four justices dissented. The Court grants certiorari upon the vote of four justices. The number of dissenting justices seems to guarantee that the merits will be decided by the full Court. Justice Brennan, however, used to say that, while four justices can vote to take a case, you should not supply the fourth vote unless you can court to five. That means that the four dissenters who reached the merits will want to know that their vote to grant certiorari will not be in vain and that there is a vote to be picked up from the majority. A petition for certiorari is likely coming, with a request for a stay pending its disposition. What the Court does with it will test that theory – and one other. There is a tradition at the Court to grant a stay when a petition is granted, so that a fifth justice, even if not supporting certiorari, usually joins the four as a courtesy to hold the “status quo” while the case receives review.

It pays to understand the Court’s traditions and unwritten rules. When some of this occurs in the near future, those who take what the Court is doing at face value may misinterpret those actions as signaling a change in positions from someone in the majority. Those who understand will know whether the Court is following its own norms – or departed from them. It will be too early to predict an outcome.

Alphabet Soup: Fine for Lunch but not for your Briefs

Lawyers love alphabet soup. We use abbreviations (which include initialisms and acronyms)[1] liberally. Take this excerpt as an example:

Facing the uncertainty of collecting from the Lewicki-Swiech Defendants, D&K turned to LL and KFTR, KBP’s prior counsel in this case. In February 2014, D&K’s counsel, now also representing the Polish bankruptcy trustee controlling KBP since April 2013 (See SA93-94 ¶10), asked LL for voluntary production of its documents relating to its representation of KBP in this lawsuit in 2011-12. LL complied. (See Dkt. 765 at 5.) KBP later also asked for and obtained documents from Dienner and KFTR, who had preceded LL as counsel for KBP.[2]

Lawyers in another case used the initialisms “‘SNF,’ ‘HLW,’ ‘NWF,’ ‘NWPA,’ and ‘BRC’” to refer to “‘spent nuclear fuel,’ ‘high-level radioactive waste,’ the ‘Nuclear Waste Fund,’ the ‘Nuclear Waste Policy Act,’ and the ‘Blue Ribbon Commission.’”[3] Well, those are “clear as mud,” as my dad would’ve said.

But I’m sure those abbreviations were clear to the people using them. That’s the problem. The lawyers and parties to a case live with and use abbreviations to talk about the case, perhaps for years.[4]  Those insiders readily understand the abbreviations. But you’re not writing your brief for an insider; you’re writing it for an outsider (judge) who reads thousands of pages of briefs each year. Using uncommon abbreviations makes the judge’s job more difficult and distracts from your argument. As one court noted in decrying the parties’ use of abbreviations, “The proliferation of these acronyms and abbreviations created a confusing alphabet soup which actively took the reader out of OSCO’s[5] arguments (at the expense of remembering what everything meant), and necessarily prolonged the Court’s review of the subject motions.”[6]

Some courts expressly discourage the use of uncommon abbreviations.[7] The Supreme Court of Ohio Writing Manual tells writers to “Avoid using acronyms and abbreviations that are not already widely used; instead, shorten the name of the entity.”[8] It then suggests, “after identifying the Greater Cincinnati and Northern Kentucky Car Dealers Association, provide a parenthetical such as (‘the car dealers’) rather than create the abbreviation ‘GCNKCDA.’”[9] Lawyers (and law professors) need to be aware of and comply with such suggestions. Failing to do so may result in a judge writing something like this:

Petitioner's brief, unfortunately, was laden with obscure acronyms notwithstanding the admonitions in our handbook (and on our website) to avoid uncommon acronyms. Since the brief was signed by a faculty member at Columbia Law School, that was rather dismaying both because of ignorance of our standards and because the practice constitutes lousy brief writing.[10]

At least two circuit courts of appeals now require parties to include a glossary that defines uncommon abbreviations. The Circuit Rules for the United States Court of Appeals for the D.C. Circuit has this requirement, “All briefs containing abbreviations, including acronyms, must provide a ‘Glossary’ defining each such abbreviation on a page immediately following the table of authorities. Abbreviations that are part of common usage need not be defined.”[11] But the very need to include a glossary suggests there is a problem with your writing—a problem that makes the judge’s job more difficult. Do you really want to write a brief that requires the judge to constantly flip back to a glossary to understand what you’re talking about? As Judge Silberman noted, “Even with a glossary, a judge finds himself or herself constantly looking back to recall what an acronym means.”[12]

A final point: a judge may view the overuse of abbreviations as a signal that the writer is unskilled.[13] One judge referring to the overuse of abbreviations, noted, “Perhaps not surprisingly, we never see that in a brief filed by well-skilled appellate specialists. It has been almost a marker, dividing the better lawyers from the rest.”[14]

So, save the alphabet soup for your lunch, not your brief.

 

[1] While all acronyms and initialisms are abbreviations, not all abbreviations are initialisms or acronyms.  See, Abbreviations, Bryan A. Garner, Modern English Usage, 2 (5th ed. 2022).

[2] Locke Lord Appellees’ Brief at 4, Domanus v. Locke Lord, LLP, 847 F.3d 469 (7th Cir. 2017) (No. 15-3647, ECF No. 31, 2016 WL 1072974.

[3] Nat’l Ass’n of Regul. Util. Comm’rs v. U.S. Dept. of Energy, 680 F.3d 819, 820, n.1 (D.C. Cir. 2012).

[4] Fed. Ct. App. Manual § 32:8 (7th ed.); Garner, supra note 2 at 4 (stating “Abbreviations are often conveniences for writers but inconveniences for readers.”)

[5] Goodyear Tire & Rubber Co. v. Conagra Foods, Inc., No. 2:20-cv-6347, 2023 WL 5162655, *5, n.4. OSCO refers to OSCO Industries, Inc., id. at *1, which started as the Ohio Stove Company. https://oscoind.com/about-us/ (last visited March 4, 2025).

[6] Id. at *5, n.4.

[7] The Supreme Court of Ohio Writing Manual, 13.3 Identification, 105 (3d ed. 2024); Practitioner’s Handbook for Appeals to the United States Court of Appeals for the Seventh Circuit, 153 (2020 ed.) (“Relatedly, the use of acronyms that are not widely known is discouraged.”)

[8] The Supreme Court of Ohio Writing Manual, 13.3 Identification, 105 (3d ed. 2024).

[9] Id. (I take issue with the need to include the parenthetical if there is only one set of car dealers involved in the case. I’d just refer to the entity as the car dealers after identifying the entity by its full name the first time. But perhaps that’s a topic for another blog post.)

[10] Delaware Riverkeepers Network v. F.E.R.C., 753 F.3d 1304, 1321 (D.C. Cir. 2014) (Silberman, J. concurring).

[11] D.C. Cir. Rule 28(C)(3); 10th Cir. R. 28.2(C)(4).

[12] Delaware Riverkeepers Network, 753 F.3d at 1321 (Silberman, J. concurring).

[13] Id.

[14] Id.

SCOTUS on Notice and the Current Constitutional Crisis

Alexis de Tocqueville, that trenchant observer of America from the Old World, recognized, even as long ago as 1835, “[t]here is hardly any political question in the United States that sooner or later does not turn into a judicial question.” Today, as in the past, we are witnessing the truth to that statement.

Playing out before us, we are seeing the dismantling of government structures, norms, and a challenge to the law that exceeds in scope and speed anything that has occurred in the United States in our lifetimes. The firing of federal workers without regard to their functions, abilities, performance, or statutory protections is occurring so rapidly that even those conducting the program admit they have made mistakes by discharging workers safeguarding our nuclear stockpile or preparing for a potential bird flu pandemic without knowing how to rehire them.

Fever dreams of reversing the New Deal and the Great Society are toppling federal agencies or their statutory independence with the eagerness of mobs who pulled down and beheaded an equestrian statue of King George III on the evening the Continental Congress approved the Declaration of Independence. Visions of imperialistic expansion and abdication of our leadership role within what was once called the free world are sending allies scurrying to insulate themselves from the fallout and bringing cheer to our adversaries.

In his 1776 call to action, Common Sense, Thomas Paine confidently wrote, “In America, the law is king,” throwing off the yolk of the king is law and claiming the Enlightenment principle as foundation here that no one stands above the law. Will it remain true? Will our experiment in constitutional government survive when the constitutional blueprint is set aside in favor of plenary presidential prerogative? In the midst of the Korean War, the Supreme Court held that Harry Truman did not have the authority to put aside a strike and keep the steel mills running. Lawsuits challenge many of the new administration’s initiatives. Just Security has posted a litigation tracker listing 83 lawsuits filed a month into the new administration. At some point, several cases will arrive at the Supreme Court’s steps and require the Court to articulate the limits on presidential power.

Keep in mind that executive orders are not law, but presidential directives within the executive branch that exercise existing legal authority to implement the law. An executive order cannot, for example, override the Fourteenth Amendment’s conveyance of birthright citizenship, even though one of the first ones issued this year attempted to do just that. Nor can it go beyond what Congress has authorized, as Joe Biden’s first attempt at student loan forgiveness was struck down.

When the Nixon tapes case landed at the Supreme Court, the president’s criminal defense lawyer declared that Nixon would only obey a definitive ruling from the Court. The statement, letting the president choose defiance if he decided that the public interest favored his position, laid down a gauntlet of potential disobedience. As we now know, the justices worked hard to issue a unanimous ruling with no room for doubt, which resulted in the release of the tapes. Congressional support for Nixon evaporated in light of the tapes’ revelations, and Nixon resigned in the face of certain impeachment and conviction.

Some in the administration, Vice President Vance, OMB Director Vought, and the man with the unlimited portfolio, Elon Musk, have advocated ignoring the courts or threatening impeachment of judges who would restrain unlawful presidential actions. We have already seen defiance of the law in the first days of the administration. Congress enacted a ban on TikTok while owned by a Chinese company, setting a January 19, 2025 date for the ban to go into effect absent a sale. On January 17, 2025, the Supreme Court unanimously upheld the law, which put severe penalties on the app and those how make it available unless it went dark. The administration, however, has chosen not to enforce it because the president, a one-time supporter of the law, now dislikes it and asserts that he will broker a deal or a takeover.

Despite its supposed national security implications, the TikTok issue may seem of little moment. The Republic likely will not fall if the law is ignored, particularly when other issues seem more momentous. Yet, it is the canary in the coal mine. It tells us how easily duly enacted laws validated by the courts can be set aside by a president more committed to his program than his constitutional obligation to “take Care that the Laws be faithfully executed” and his oath to “preserve, protect and defend the Constitution of the United States.” In fact, the president has proudly posted a headline about refusing to comply with a court order unfreezing federal grants and stating that he can violate the law if his objective is to save the country. It is a statement that recalls the Vietnam War justification that the military had to destroy the village to save it.

The Supreme Court knows these challenges are coming and undoubtedly understand that validation of an unconstitutional or statutorily prohibited aggregation of power will only spawn even more aggressive claims that the unitary executive theory extends beyond control of the executive branch to control over the entire government. It also understands that a nuanced decision is equally ineffective in stopping extra-constitutional assertions of authority. At the same time, a muscular decision, along the lines of the 1952 Steel Seizure Case, may be ignored, just as the TikTok ban was ignored. And, if the Constitution and the courts erect mere parchment barriers, then what could stop Donald Trump from overriding the 22^nd Amendment’s prohibition on running for a third term?

Appellate advocates have a role to play in preserving law as a barrier to authoritarianism. We must explain why these issues are important and why courts have the authority to restrain elected officials engaged in extralegal actions. Without public understanding and public support, the Supreme Court will falter or be nothing more than a quaint institution that has outlived its usefulness. It does not matter that one action or another does not personally affect us or most members of the public. As Sir Thomas More in “A Man for All Seasons” reminded us, you can cut down the laws to get after the Devil, but, then, “do you really think you could stand upright in the winds that would blow then?” If the constitutional principles of justice, liberty, and equality really reside in our hearts, we must use all of our legal skills to preserve it in the face of an onslaught that would render it an artifact of a world that will no longer exist.

New Year, and Some New Courts

The start of a new calendar year often presents fresh opportunities. For appellate advocates, cases continue, and new ones develop. That would seem to make January uneventful – just a new month like any other month. Still, in at least some states, courts operate on a calendar-year basis. The end of December may be the end of a state supreme court term and often marks the issuance of the remaining cases of the term. January, then, brings a fresh set of cases and, possibly, new justices and chief justices. The impact of these changes is unpredictable. In some instances, things will continue as they have in the past; in others, significant change may occur.

Past experience with the U.S. Supreme Court and with attempts to avoid it offer some perspective. For example, the change represented by the Warren Court was revolutionary. It had become so trailblazing that state courts had difficulty keeping up and adopted what one scholar called “the drowsy habit of looking no further than federal constitutional law.”[1] In the late 70s and early 80s, the change in direction in the U.S. Supreme Court from the Warren Court’s heyday brought talk of a “New Judicial Federalism,” in which advocates were urged to refocus on state constitutional issues and state supreme courts to achieve their appellate goals. Prominent law review articles to that effect were written by Justice William J. Brennan, Jr.[2] and then-Oregon Justice Hans Linde.[3] A New Jersey supreme court justice even suggested that failing to brief the state constitutional issues fully and separately might be considered malpractice.

As I’ve written before, “[s]tate constitutions have distinctive language, histories, and provisions that combine with the unique nature of state police power and cultural orientations to produce singular takes on American constitutional jurisprudence.”[4] Notably, the New Judicial Federalism also received heavy criticism, with one professor labeling the courts’ emphasis on different state constitutional takes “a vast wasteland of confusing, conflicting, and essentially unintelligible pronouncements.”[5]

The New Judicial Federalism was not something new, though. Instead, it constituted a rediscovery of what state courts had previously undertaken. Many now-familiar federal constitutional holdings and doctrines were first developed in state supreme courts under state constitutions. Judge Jeffrey Sutton, chief judge of the U.S. Court of Appeals for the Sixth Circuit, reminded us of the critical role of state courts and constitutional principles in a 2018 book, “51 Imperfect Solutions: States and the Making of American Constitutional Law.” What advocates discovered in turning to state constitutions was a whole set of independent state law grounds to achieve victories not available under the U.S. Constitution and immune from U.S. Supreme Court review. The popular view was that the U.S. Constitution provided a floor of minimum rights, while state constitutions could provide a higher ceiling.

With a solid more conservative majority on the U.S. Supreme Court, and the aftermath of decisions on reproductive rights, guns, and even presidential immunity, some advocates have once again redirected their gaze at state supreme courts. The Brennan Center for Justice at NYU Law School has taken up its namesake’s reminder about considering state constitutions and now publishes the State Court Report, which follows state courts and state constitutional law. It is a valuable legal resource for appellate advocates.

Today, after appointments and elections this past November have placed new members onto chief justice seats and on various courts, new opportunities arise to test ideas and doctrines in the state courts. Justice Byron White once said that with each new member who joined the U.S. Supreme Court, a new Court was constituted. The same is likely true for our highest state courts.

 

[1]  A.E. Dick Howard, State Courts and Constitutional Rights in the Day of the Burger Court, 62 Va. L. Rev. 873, 878 (1976).

[2] William J. Brennan, Jr., State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977).

[3] Hans A. Linde, First Things First: Rediscovering the States' Bills of Rights, 9 U. Balt. L. Rev. 379 (1980).

[4] Robert S. Peck, For Trailblazers, When the U.S. Constitution Is Not Enough, 45 New Eng. L. Rev. 855 (2011).

[5] James A. Gardner, The Failed Discourse of State Constitutionalism, 90 Mich. L. Rev. 761, 763 (1992).

How Will the Arguments on Birthright Citizenship Develop?

Upon taking office again as president, Donald Trump has promised to end birthright citizenship though executive action. Anyone adversely affected will challenge the constitutionality of that effort.

The argument that the president lacks the power to do so would seem pretty straightforward. The Fourteenth Amendment declares “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” The landmark decision interpreting that language, United States v. Wong Kim Ark, 169 U.S. 649 (1898), provides essential background. The plaintiff was the child of immigrants from China, still subjects of the Emperor of China, when Wong Kim Ark was born in California. He remained in the United States when his parents left for China. In 1890, he went on a temporary visit to China. He returned to the United States and was readmitted with the collector of customs recognizing his U.S. citizenship. Four years later, he again visited China, returning to the United States in 1895. This time, however, officials denied him reentry on the supposed grounds that he was not a U.S. citizen and excludable under the Chinese Exclusion Acts.

When the Supreme Court decided the case, the justices relied upon “the common law, the principles and history of which were familiarly known to the framers of the Constitution” to define the meaning of being born in the United States and subject to its jurisdiction. Drawing on the English common law, the Court found guidance in the “fundamental principle” that English nationality applied to persons “within the King’s allegiance and subject to his protection.” It included children of aliens who were born in England, but not children of foreign ambassadors or alien enemies because their allegiance would not be to and thus outside the jurisdiction of the King.

After an extensive survey of English and American law, very much fitting the history and tradition approach that the current Court espouses, the Court concluded that a “child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States.”

Supporters of an end to birthright citizenship often focus on the Citizenship Clause’s language “and subject to the jurisdiction thereof.” They find wiggle room in Wong Kim Ark’s recognition that the Chinese parents had a “permanent domicile and residence in the United States.” In their view, people here illegally and subject to deportation are not subject to U.S. jurisdiction, lack the necessary allegiance to this country, and therefore cannot convey citizenship upon their children by the location of their birth.

Yet, a contrary interpretation, finding that being subject to the jurisdiction only excludes those who, after birth, will return on a permanent basis to the country of their parents by the parents’ choice. Objections to the Citizenship Clause during debates on the Fourteenth Amendment, such as those of Senator Edgar Cowan, complained that the language would grant citizenship to children of foreigners who owe no allegiance to the United States and regularly commit trespass upon its soil. Supporters did not deny that consequence but instead celebrated it.

As every appellate advocate knows, the details of an executive order or other action on birthright citizenship will dictate the arguments for and against. If limited to those in the United States quite recently and illegally and written to apply prospectively, different arguments will be in play than if it reaches back and seeks to deny citizenship to those who have already received the fruits of that status and whose parents have demonstrated a permanence to their residency. Furthermore, it will be a test to the Supreme Court’s allegiance to history and tradition.

Democracy and Deference

In U.S. v. Skrmetti, the United States Supreme Court will determine whether Tennessee Senate Bill 1, which prohibits all medical treatments intended to allow “a minor to identify with, or live as, a purported identity inconsistent with the minor’s sex” or to treat “purported discomfort or distress from a discordance between the minor’s sex and asserted identity,” violates the Equal Protection Clause.

On December 4, 2024, the Court held oral argument, and the attorneys for Petitioner and Respondent presented strong arguments. Among the issues under consideration is whether the prohibition on gender-affirming care discriminates based on age or sex, the latter of which would require heightened scrutiny under the Court’s jurisprudence. Petitioner and Respondent’s attorneys also presented competing arguments regarding, among other things, the benefits and harms that upholding Tennessee Bill 1 would engender. In so doing, the justices acknowledged that both sides presented compelling arguments and that reasonable people could disagree on whether Tennessee Bill 1 furthered legitimate and salutary purposes.

Given this fact, a few justices questioned why the Court, rather than the legislature, should resolve this issue through the democratic process. For example, during oral argument, Justice Kavanaugh stated:

I want to ask about our role here and pick up on the Chief Justice's questions at the beginning, who decides. You've put forth forceful policy arguments to allow these medical treatments, and Justice Sotomayor's questions elaborated on that. But the 20-plus states on the other side put forth very forceful arguments against allowing these medical treatments for minors. So it seems to me that we look to the Constitution, and the Constitution doesn't take sides on how to resolve that medical and policy debate. The Constitution's neutral on the question. At least that's one way to look at it. I want to get your reaction to that. You know, if the Constitution doesn't take sides, if there's strong, forceful scientific policy arguments on both sides in a situation like this, why isn't it best to leave it to the democratic process?[1]

As Justice Kavanaugh stated, “[y]ou say there are benefits from allowing these treatments,” but given that “there are also harms … how do we as a Court choose which set of risks is more serious in deciding whether to constitutionalize this whole area?”[2]

The concern that the democratic process, rather than the Court, should resolve this issue—particularly when reasonable people differ on whether the law is beneficial or harmful and where the Constitution’s text is ambiguous—will likely carry the day. If it does, the Court will rightfully embrace a principle that promotes democracy and bottom-up governance: where reasonable people can disagree about a law’s constitutionality, the democratic, not judicial, process is the proper forum to resolve policy disputes. In other words, when the Constitution’s text is broadly worded and reasonable people can interpret such text differently, the Court should defer to the democratic process. Deference is essential to democracy, the Court’s legitimacy, and the right of citizens to determine whether specific unenumerated rights should be recognized.

Unfortunately, in many instances, the Court has taken the opposite approach and issued rulings in cases that have undermined the democratic process and invalidated legislation promoting participatory democracy and addressing important economic and social issues. For example, in Citizens United v. Federal Election Commission, the Court by a 5-4 margin invalidated a provision of the Bipartisan Campaign Reform Act that limited corporate funding of independent political broadcasts in elections.[3] In so doing, the Court overturned Austin v. Michigan Chamber of Commerce and held that corporations enjoy First Amendment protections.[4] But what language in the First Amendment supported this holding? At the very least, reasonable people could differ on whether, for example, the First Amendment applies to corporations. As such, why didn’t the Court defer to the coordinate branches and uphold a law that sought to reduce the corrupt influence of money in politics? There is no answer—at least not a good one.

Similarly, in Kennedy v. Louisiana, the Court considered whether a law authorizing the death penalty for child rape violated the Eighth Amendment’s prohibition on cruel and unusual punishment.[5] Neither the Eighth Amendment’s text nor its original purpose answered this question; at the very least, reasonable people could differ on whether such a punishment was cruel and unusual. Notwithstanding, the Court ruled 5-4 that the law violated the Eighth Amendment and thus prohibited the states from resolving this issue democratically. In Roper v. Simmons, the Court made the same error, holding that the Eighth Amendment categorically prohibited the execution of minors even though the Eighth Amendment could not possibly be interpreted to support this result, or the “evolving standards of decency” upon which the Court relied to reach its decision.[6]

Improvident intervention in the democratic process is the norm, not the exception, in the Court’s jurisprudence. In Griswold v. Connecticut, the Court invalidated a Connecticut law prohibiting contraception, holding that although the Constitution’s text did not resolve this question, there existed invisible “penumbras” in the Constitution’s text that enabled the Court—and only the Court—to recognize unenumerated rights, such as the right to privacy, and thus impose its policy views on an entire nation.[7] In Roe v. Wade, the Court compounded this error by holding that the right to privacy encompassed a right to terminate a pregnancy, even though nothing in the Constitution’s text could be interpreted to support its holding.[8] To be sure, a deferential approach is not about promoting a particular political viewpoint. Whether one supports a right to abortion is irrelevant; what matters is that nine unelected judges decided that their views should remove this issue from democratic choice.

In contrast, some decisions have demonstrated appropriate deference to democratic processes. For example, in Washington v. Glucksberg, the Court declined to create a right to assisted suicide, holding that because the Constitution’s text was silent on this issue, it should be resolved democratically.[9] Additionally, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts cast the deciding vote upholding the Affordable Care Act, concluding that the Act’s individual mandate constituted a tax, not a penalty.[10] The primary reason underlying Roberts’ decision was arguably to preserve the Court’s institutional legitimacy by deferring to the coordinate branches and avoiding a decision that appeared politically motivated. In Dobbs v. Jackson Women’s Health, the Court remedied the harm that Roe caused to the Court’s legitimacy by returning the issue to the states.[11]

Of course, the Court has the power to say what the law is, but how can the Court say what the law objectively is when a constitutional provision is ambiguous and subject to differing interpretations? It cannot. In such circumstances, saying what the law is requires the justices to determine subjectively what the law should be. That is the problem. In a democracy, the people have the right to say what the law should be, not nine unelected and life-tenured justices. Thus, where the Constitution is silent or capable of reasonably different interpretations, the Court should defer to democratic choice. A court with limited power is essential for preserving democracy, and the process by which the Court makes decisions is equally, if not more, important than the outcomes it reaches.

 

[1] U.S. v. Skrmetti, Transcript of Oral Argument,  (Dec. 4, 2024), p. 40-41, available at: 23-477_c07d.pdf

[2] Id. at 44-45.

[3] 558 U.S. 310 (2010).

[4] 494 U.S. 652 (1990).

[5] 554 U.S. 407 (2008).

[6] 543 U.S. 551 (2005).

[7] 381 U.S. 479 (1965).

[8]  410 U.S. 113 (1973).

[9] 521 U.S. 702 (1997).

[10] 567 U.S. 519 (2012).

[11] 597 U.S. 215 (2002).

Can You DIG It?

On Friday, the Supreme Court issued its first decision of the term in an argued case – and it was a DIG, dismissed as improvidently granted, in a one-sentence order. The effort and attention given the case until that resolution can seem frustrating and a waste of judicial resources, although respondents generally should be pleased given that their victory below is thereby preserved.

The case was Facebook, Inc. v. Amalgamated Bank, No. 23-980. The issue involved whether Facebook was sufficiently forthcoming in its securities filings when it failed to mention that a risk has materialized in the past, even if that past event presents no known risk of ongoing or future business harm?

The event in the past that animated this case was Facebook’s sharing of user data of some 30 million users without their permission with a researcher who founded the infamous Cambridge Analytica. The data was originally used by Senator Ted Cruz’s presidential primary campaign to target voters. The data was used to place political advertising on Facebook while covering up its cooperation in the effort. Eventually, Facebook’s role in sharing the data became public, and the Securities and Exchange Commission filed suit against Facebook for misleading investors about the risk it incurred from the episode. Facebook paid a $5.1 billion civil penalty in settlement.

When a class of investors sued to recover damages in a securities action, the district court dismissed, but the Ninth Circuit held that Facebook’s risk statements “represented the risk of improper access to or disclosure of Facebook user data as purely hypothetical when that exact risk had already transpired.” The gist of the opinion scored Facebook for portraying the risk of a breach of private users data as if it did not and could not occur, when it had and when it resulted in a significant drop in stock prices.

The Supreme Court granted certiorari after the petition suggested that a three-way split existed in the circuits. It claimed that the Sixth Circuit took the position that no disclosure of past instances was necessary. It then claimed that six other circuits require disclosure of past risks but only if the company knows it will harm the business. It then asserted that the Ninth Circuit, along required disclosure even if there is no known threat of business harm.

The Brief in Opposition, known as the BIO, asserted that the question presented assumed a factual premise that the Ninth Circuit rejected as unsupported by the record. According to Facebook, when it filed its disclosures with the SEC, the breach was public without adverse consequences. The claimed sequence of events and the lack of adverse public reaction, the BIO asserted, was inconsistent with the Ninth Circuit’s filings. It then claimed that the case did not qualify for certiorari, because the Supreme Court had recently advised that granting certiorari is “imprudent” when the premise of the issue presented “does not hold.” DeVillier v. Texas, 601 U.S. 285, 292-93 (2024).

Even so, the Court granted certiorari, received full briefing, and conducted oral argument earlier this month. When the Court decides to DIG a case, something that happens once or twice a term, it usually does not provide an explanation. The usual assumptions are that the case turned out to be a poor vehicle for resolving the issue, the issue granted turns out not to be the principal basis for the petitioner’s argument in a bait-and-switch stratagem, new developments either in the case or related to the issue changes the need for a decision, or the justices are so divided on what the real issue is that the case no longer looks to them to be what it was when certiorari was granted.

In this case, it seems likely that the arguments about what the Ninth Circuit did or did not decide that were made in the BIO became clearer to the justices and resulted in the DIG. Still, it often seems that a more careful review of the BIO would certainly result in fewer cases that are granted for plenary review only to be rejected without decision through a DIG with the result being the same as it would have been if certiorari had been denied.

How to Persuade Judges When a Constitutional Provision is Ambiguous

The ability to persuade judges—or anyone, for that matter—when a law is ambiguous and open to different interpretations is exceedingly difficult. Yet, it’s a challenge lawyers often face, especially when arguing cases that hinge on interpreting broadly worded constitutional provisions. For instance, in Kennedy v. Louisiana, the U.S. Supreme Court considered whether imposing the death penalty for child rape violated the Eighth Amendment’s prohibition against "cruel and unusual punishment." Reasonable minds could—and did—differ on what constitutes such punishment.

Similarly, in Snyder v. Phelps, the Court examined whether the First Amendment’s protection of free speech allowed individuals to display signs like “Fags Doom Nations” and “Thank God for 9/11” outside a soldier’s funeral, despite the severe emotional distress this caused the bereaved family. Whether the First Amendment shields such offensive speech posed a profound challenge.

In Riley v. California, the Court had to decide whether searching a cell phone without a warrant during an arrest constituted a “reasonable” search under the Fourth Amendment.

And in Roe v. Wade, the Court tackled whether the right to privacy—previously recognized in Griswold v. Connecticut as part of the “liberty” protected by the Fourteenth Amendment’s Due Process Clause—extended to a woman’s right to terminate a pregnancy. This theme of interpreting broad and ambiguous constitutional language also appeared in cases like National Federation of Independent Business v. Sebelius, which questioned whether the Affordable Care Act's individual mandate was constitutional under the Commerce Clause, and Clinton v. New York, which challenged whether the Presentment Clause permitted the president to use a line-item veto.

These examples highlight how the Court has repeatedly interpreted ambiguous constitutional provisions to resolve significant legal issues that affect citizens’ rights and liberties. In these cases, reasonable judges and legal scholars have reached different conclusions. What can a lawyer do to persuade a court to adopt their interpretation? Here are three strategies to maximize the likelihood of success:

 1.    Know your audience and adopt an incremental approach.

When advocating for a particular interpretation of an ambiguous constitutional or statutory provision, it’s essential to understand the judges' ideological leanings and policy preferences. For example, before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade, a state law banning abortions after 15 weeks would have faced skepticism from justices who supported Roe, like Justices Sotomayor, and Kagan. Conversely, Justices Alito, Thomas, Gorsuch, Kavanaugh, and Barrett would have been more sympathetic.

Given this landscape, how can you bridge the ideological divide? One effective approach is to emphasize that your interpretation is a modest, incremental departure from existing precedent rather than a radical overhaul. Acknowledge that precedent may not fully support your position but argue that it aligns with the underlying purpose of those prior decisions. This can make your argument more palatable to justices inclined to oppose you while also appealing to those who might favor a more substantial shift in the law.

This incremental strategy can be particularly effective when the court’s ideological balance is against you. While some cases, like Dobbs, show that the Court can make sweeping changes, in many situations, a minor adjustment to the legal landscape is more likely to gain broader acceptance.

 2.    Emphasize pragmatic consequences and underlying purposes.

Judges are not robots; they care about the real-world impact of their decisions. Highlighting the practical implications of a ruling against your position and emphasizing the broader purposes behind constitutional or statutory provisions can be persuasive.

For example, in Riley v. California, the Court had to determine whether the Fourth Amendment allowed warrantless searches of cell phones during arrests. Previous rulings like U.S. v. Robinson and Arizona v. Gant had expanded the scope of searches incident to arrest. However, the lawyers in Riley argued that the original intent of the Fourth Amendment was to protect the most private information of citizens—traditionally found in the home. They drew a parallel between modern cell phones and the private papers the Fourth Amendment was designed to protect, emphasizing that cell phones store extensive personal data, such as photos, emails, and financial records. This argument, grounded in the purpose behind the Fourth Amendment, led the Court to unanimously rule that searching a cell phone without a warrant was unconstitutional.

By framing your argument around the broader purposes and pragmatic outcomes, you increase your chances of persuading judges who are concerned with both the letter and spirit of the law.

 3.    Appeal to common sense and fairness.

Judges, like all of us, value fairness and reasonableness. An argument that aligns with common sense can be highly effective, especially when dealing with controversial issues.

Consider Snyder v. Phelps, where the Court was asked whether the First Amendment protected the hateful speech of the Westboro Baptist Church outside a soldier’s funeral. Despite the repugnant nature of the speech, the Court upheld its protection under the First Amendment, emphasizing the broader principle of a marketplace of ideas where even offensive speech is tolerated. The underlying concern was that restricting such speech could lead to a slippery slope where the government might censor other unpopular opinions, thereby undermining the fundamental right to free speech.

Appealing to common sense and the broader implications of a ruling can help you frame your argument in a way that resonates with judges' innate sense of fairness.

***

In some cases, there may be little you can do to change a judge’s mind, especially if a judge is firmly committed to a particular ideological stance. However, by taking an incremental approach, emphasizing pragmatic considerations, and appealing to common sense, you can maximize your chances of persuading a court to adopt your interpretation.

A View of the Supreme Court

In this post, I’m going to be a little self-indulgent. This past week saw the publication of a new book that I wrote with my friend, Anthony Champagne, a professor emeritus of political science at the University of Texas at Dallas. Tony and I served together as Supreme Court Fellows in 1990-91 and became lifelong friends. We discovered early on that we each had collected scores of anecdotes about the Supreme Court and its justices. We each deployed these stories in speeches and lectures, finding that audiences loved the tales. Eventually, we resolved to compile the stories in a book.

Last Monday, the book was published. It is called “Supreme Anecdotes: Tales from the Supreme Court.” Part of the reason for its lengthy gestation period is that we resolved to cover every justice to ever have served on the Court. That meant rifling through judicial biographies, law review articles, tributes, and a variety of other sources to cover even justice. Our original publisher became a victim of business failure during the pandemic. Once we found a new publisher, we needed to update our manuscript to cover some new appointees.

We are heartened by the reception the book has had. Dean Erwin Chemerinsky of the Berkeley School of Law said he could not “think of another book on the Supreme Court that I enjoyed reading more or learned more from.” Former Texas chief justice Wallace Jefferson called it a “must read for all who care about the majesty and frailty of the rule of law.”

Political science professor James Riddlesperger, Jr. of Texas Christian University lauded its appreciation of the Court’s history, as well as “a chuckle a page.” Research professor Royce Hanson of the George Washington University Institute of Public Policy enjoyed the peek it gave at the “foibles, follies, and occasional withering wit of the Supremes.” And Alan Morrison, associate dean at George Washington University, wrote that it “gives the reader a very different side of the Justices, including the fact that many of them did not come close to fitting our ideal of members of the Highest Court.

Certainly, the book tells many funny stories about the Court over the years and that is enjoyable in its own right. Still, it also highlights the ways the Court has changed since its early days – and the ways in which it remains very much the same. I hope that readers of this blog find it useful, as well as an enjoyable romp through Supreme Court history.

The Thing About Dicta

Two weeks ago, my post featured a book that detailed procedural differences between the federal circuits. Since then, the Ninth Circuit handed down an en banc opinion in which the concurring opinion highlighted a strange position unique to that court concerning the treatment of dicta. My colleague on this blog, Stephanie Williams, highlighted that concurrence in a post on September 28. She found it a highly useful discussion of dicta and indicated she would be adding it as required reading in her course. I, too, found it interesting, especially against the backdrop of other pronouncements about dicta. Because I took a different approach to thinking about dicta and the Ninth Circuit’s opinion than Stephanie did, I’m going ahead with posting about it as well.

Dicta, as every law student quickly learns, is not precedent, but an aside that the court makes nonetheless even though unnecessary for the disposition of the case. Though it may be cited, its usefulness normally depends on its persuasiveness. Often what emanates from the court as dicta expresses views on issues that the parties neither briefed nor argued. Because it lacks adversarial vetting courts often treat it somewhat gingerly. Its value arises from its ability to shape issues and the law down the road.

In one case, for example, Justice Breyer, writing for the Court, rhetorically asked: “Is the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit forever after?”[1] Answering his own question, he wrote, “we are not necessarily bound by dicta should more complete argument demonstrate that the dicta is not correct.”[2] In support, he cited another case that found the Court was “not bound to follow our dicta in a prior case in which the point now at issue was not fully debated.”[3]

More tellingly, the Court, in dictum, once declared, “[d]ictum settles nothing, even in the court that utters it.”[4] Judges have also warned about the misuse of dicta. Justice Frankfurter, in dissent, wrote that something of a “progressive distortion” takes place by which “a hint becomes a suggestion, is loosely turned into dictum and finally elevated to a decision.”[5] The Sixth Circuit’s Judge Kethledge wrote “dictum is usually a bad idea, because judges think differently—more carefully, more focused, more likely to think things through—when our words bring real consequences to the parties before us.”[6]

So what did the Ninth Circuit do that is so different from its sister circuits? In a False Claims Act case, where the Court had previously found that the first plaintiff to file is the only private party that may file a claim because it is “jurisdictional,” an en banc court overruled its earlier “precedent.”[7] The majority noted that the original designation of being first deprived the court of jurisdiction over subsequent plaintiffs with similar claims even though it occurred “without any analysis,” which subsequent decisions accepted without analysis as well.[8] Yielding to the Supreme Court’s criticism of “profligate use of the term ‘jurisdiction,’”[9] and the modern requirement that only Congress through a clear statement can designate a statutory requirement as jurisdictional,[10] the Ninth Circuit deemed it necessary to convene en banc and overrule its earlier panel decision.

The author of the majority opinion also wrote a concurrence, joined by one other member of the court, declaring that this “case demonstrates that our dicta-is-binding rule is burdensome and misguided.”[11] The concurrence by Judge Danielle J. Forrest called the Ninth Circuit’s solitary approach to in-circuit dicta without “legal foundation” and a cause of “unnecessary inefficiency and waste[d] resources,” a reference to the need to overrule it en banc because no panel could do so.[12] She colorfully added, “[w]e stand out like a flamingo in a flock of finches in treating dicta as binding.”[13] Yet, Judge Forrest’s plea to change the circuit’s approach was in a concurrence, suggesting that she could not bring along a majority of her colleagues – yet.

Circuit differences also exist about how to treat Supreme Court dicta, although there exist a number of competing schools of thought. At one extreme stands the Fourth, Sixth, and Tenth Circuits. As an “inferior court,” the Fourth Circuit holds it must treat as authoritative “carefully considered language of the Supreme Court, even if technically dictum.”[14] That stance leaves a little wiggle room if the dicta is not “carefully considered.” The Sixth Circuit more straightforwardly states that “[l]ower courts are obligated to follow Supreme Court dicta.”[15] The Tenth Circuit similarly asserts “this court considers itself bound by Supreme Court dicta almost as firmly as by the Court’s outright holdings.”[16]

On the other hand, the previously on-board Eighth Circuit retreated from the same approach, declaring that it “goes too far.”[17]  Instead, the circuit will “afford deference and respect to Supreme Court dicta, particularly where, as here, it is consistent with longstanding Supreme Court precedent.”[18] Other circuits emphasize deference as well but with a thumb on the scale in favor of following the Supreme Court. The Third Circuit, for example, recognizes that Supreme Court dicta is not binding but strives to give it due weight because it understands that the Court “uses dicta to help control and influence the many issues it cannot decide because of its limited docket.”[19] That seems to credit the Supreme Court with an intent it may not have. The Seventh Circuit subscribes to an even stronger position, warning against “Appellate courts that dismiss these expressions [in dicta] and strike off on their own increase the disparity among tribunals (for other judges are likely to follow the Supreme Court’s marching orders) and frustrate the evenhanded administration of justice by giving litigants an outcome other than the one the Supreme Court would be likely to reach were the case heard there.”[20] That, too, seems to rely on a predictive model that may not obtain, given the Supreme Court’s own statement that “dicta settles nothing.”

Even the Ninth Circuit, despite its in-circuit attitude, applies deference with by providing Supreme Court dicta with a “weight that is greater than ordinary judicial dicta as prophecy of what that Court might hold.”[21] The D.C. Circuit takes a similar stance.[22]

One thing to keep in mind, though. Much of this is just dicta about dicta.

 

[1] Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013).

[2] Id.

[3] Id.

[4] Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 352 (2005).

[5] United States v. Rabinowitz, 339 U.S. 56, 75 (1950) (Frankfurter, J., dissenting).

[6] United States v. Burris, 912 F.3d 386, 410 (6th Cir. 2019) (en banc) (Kethledge, J., concurring in the judgment)

[7] Stein v. Kaiser Foundation Health Plan, Inc., 2024 WL 4271950, *2 (9th Cir. Sept. 24, 2024).

[8] Id.

[9] Sebelius v. Auburn Reg’l Med. Ctr., 568 U.S. 145, 153 (2013).

[10] Santos-Zacaria v. Garland, 598 U.S. 411, 416 (2023).

[11] Id. at *3 (Forrest, J., concurring).

[12] Id. (Forrest, J., concurring).

[13] Id. at *6.

[14] Wynne v. Town of Great Falls, 376 F.3d 292, 298 n.3 (4th Cir. 2004).

[15] American Civil Liberties Union of Ky. v. McCreary Cnty., 607 F.3d 439, 447 (6th Cir. 2010).

[16] Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996).

[17] In re Pre-Filled Propane Tank Antitrust Litig., 860 F.3d 1059, 1064 (8th Cir. 2017).

[18] Id.

[19] In re McDonald, 205 F.3d 606, 612–13 (3d Cir. 2000).

[20] United States v. Bloom, 149 F.3d 649, 653 (7th Cir.1998).

[21] United States v. Montero–Camargo, 208 F.3d 1122, 1132 n.17 (9th Cir.2000) (en banc).

[22] Bangor Hydro–Elec.  Co. v. FERC, 78 F.3d 659, 662 (D.C. Cir. 1996).

Writing Briefs, Rather than Literary Works

Some great literary works feature elegant and meticulously assembled sentences of considerable length. They carry you away like a leaf dancing in the wind, sending you headfirst into a wonderous and unfamiliar world. Like an evocative musical passage, it demands attention and provokes both emotions and thoughts that you know will reach completion in a way and with timing not yet knowable. It achieves its goals by sowing confusion and surprise in a calculated fashion but its words seem to be uttered breathlessly with the elongation of a wind instrument’s musical note held longer than thought humanly possible.

The task of brief writing plays a markedly different tune, even if it embodies literary qualities unique to the genre. It seeks not to astonish but to develop a clear, logical, and compelling path to the advocate’s preferred result. A brief advances abstract legal concepts but then dresses them in examples, often drawn from precedents that provide concrete applications that align with the case at hand.

The best brief writers prepare the reader for what is to come. The opening sentence of a section or a paragraph will provide a signpost about what is ahead. It prepares the reader to receive the thought. A sentence that begins with “ordinarily” advises a reader that the rest of the sentence will declare something familiar and seemingly unassailable. Yet, it also signals the reader that the sentences that follow will explain why this case does not involve ordinary circumstances but a distinctive situation that demands a conceptually different approach.

Signals may be individual words, or they may be clauses or full sentences. In one argument I had before the Supreme Court, Justice Breyer asked me to name the best precedent to support my point. He correctly anticipated the case I would cite. He told me that he had the case in front of him and asked me to explain a sentence in it that seemed to undermine my point. The Respondent’s reply brief also homed in on that sentence. I responded to Justice Breyer by explaining that he (as well as my opponent) had left off a dependent clause that proceeded the words he quoted. That clause, I explained, changed the sentence’s meaning in my favor. Justice Breyer chuckled at my response and agreed with my position. Rather than serve as a question designed to trip me up, he was looking to evoke the response I made.

The episode also demonstrates that judicial opinions often have signals or signposts to aid the reader in understanding the ruling. The legal issues that often provide the fodder of appeals usually involve submerged complexities lurking below the simplicity found on the surface. The writer who wishes to provide a clear path to a result understands that a brief or court opinion may need to build toward that end by assuring that the reader anticipates the path ahead as essential to understanding why it compels a favorable result.

Trapped Between Two Precedents

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

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

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

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

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

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

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

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

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

 

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

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

[3] Id. at 269.

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

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

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

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

Will Former President Donald Trump’s Conviction Be Overturned?

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

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

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

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

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

            Prediction: Unsuccessful.

    2.    The failure to change venue.

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

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

            Prediction: Unsuccessful.

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

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

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

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

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

            Prediction: Unsuccessful.

    4.    Judge Merchan’s evidentiary rulings.

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

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

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

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

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

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

            Prediction: Possibly successful.

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

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

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

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

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

            Prediction: Unsuccessful.

    6.    The charge that Trump falsified business records.

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

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

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

            Prediction: Unsuccessful.

    7.    Judge Merchan’s jury instructions.

This is where President Trump will succeed on appeal.

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

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

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

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

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

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

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

That is the point – and the problem.

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

            Prediction: Successful.

***

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

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

Trump’s conviction will be overturned.

 

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

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

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

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Is the United States Supreme Court a Political Institution?

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

A.    Is the Court a “political” institution?

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

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

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

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

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

***

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

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

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

The answers to these questions should be obvious.

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

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

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

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

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

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

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

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

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

The answer is no.

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

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

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

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

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

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

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

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

***

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

 

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

[2] See id.

[3] See id.

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

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

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

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

A Font by Any Other Name Does Not Read the Same

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

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

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

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

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

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

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

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