Appellate Advocacy Blog

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.

How To Change Someone's Mind

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

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

People are captivated by powerful narratives.

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

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

Consider the following examples involving a defamation claim.

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

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

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

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

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

2.    Obtain agreement over common values.

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

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

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

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

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

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

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

3.    Show that you have empathy and maturity.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5.    Listen and do not interrupt.

This requires little explanation.

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

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

Consider the following example:

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

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

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

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

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

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

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

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

***

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

Justices, Not Judges

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

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

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

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

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

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

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

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

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

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

1.    Have a strong introduction.

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

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

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

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

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

3.    Speak conversationally and confidently.

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

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

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

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

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

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

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

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

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

Consider the following example:

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

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

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

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

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

***

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

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

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

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

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

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

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

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

7.    Be reasonable.

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

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

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

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

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

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

***

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

Absolute Presidential Immunity as an Appellate Strategy

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

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

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

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

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

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

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

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

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

 

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

[2] Id. at 752 n.32.

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

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

Book Review--A Promise Kept

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

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

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

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

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

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

And or Or

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

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

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

        the defendant does not have--

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

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

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

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

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

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

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

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

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

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

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

A Few Thoughts on Judge McAfee's Decision

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

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

1.    Judge McAfee should have disqualified Willis.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

***

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

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

 

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

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

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

[4] See id.

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

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

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

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

[9] Id.

[10] Id. (brackets added).

[11] Id.

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

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

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

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

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

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

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

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

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

Oral Argument and Proper Preparation

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

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

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

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

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

 

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

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

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