Appellate Advocacy Blog

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

Friday, September 11, 2020

Appellate Advocacy Blog Weekly Roundup Friday, September 11, 2020

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

US Supreme Court Opinions and News

As the Court prepares to begin the 2020-2021 term next month, various groups and scholars are previewing the major cases expected to be heard:

  • Georgetown Law’s Supreme Court Institute will hold its annual press briefing on the major cases to be heard. The event will be held remotely on September 22 and will be available to the public via livestream on the Georgetown Law Facebook page.

  • The Pacific Legal Foundation and National Review Institute will preview high-profile cases. The event will be held via webinar on October 2, register here.

  • Amy Howe of Howe on the Court, is looking at the interesting petitions set to be reviewed during the September 29 “long conference” where the Court meets privately to consider pending petitions. The first of the series is here.

Federal Appellate Court Opinions and News

The Eleventh Circuit overturned a lower court ruling concerning the 2018 Florida Constitutional amendment that granted the right to vote to former felons who have completed their sentences. The dispute came down to the definition of what it meant to complete the sentence. The Eleventh circuit upheld the interpretation of the law that includes fines, fees, and restitution as part of the sentence. The lower court had held that that interpretation constituted an unconstitutional “poll tax.” This ruling rejected that characterization and determined that fines, fees, and restitution are “penalties, not taxes,” holding that “[b]ecause court costs and fees are legitimate parts of a criminal sentence — that is, part of the debt to society that felons must pay for their crimes — there is no basis to regard them as a tax.” See the ruling and reports from Bloomberg News, CNN,  The Orlando Sentinel, and Reuters.

Other

While many courts continue to hold proceedings remotely, some courts are resuming in-person appearances; safety is a high priority.  See reports from NPR looking at New York City and from The Associated Press covering New Hampshire and a release from the Administrative Office of the US Courts. 

September 11, 2020 in Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, August 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, August 14, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court rejected a request to stay a trial judge’s ruling that suspended a requirement that an absentee ballot be filled out in front of a witness or notary, thus making absentee voting in Rhode Island easier. The court noted the contrast to last month’s ruling (Merrill v. People First of Alabama) that upheld a similar Alabama witness requirement for absentee ballots, stating that unlike “cases where a State defends its own law, here the state election officials support the challenged decree, and no state official has expressed opposition.” Thus, the Court found that the groups challenging the ruling “lack[ed] cognizable interest in the State’s ability to ‘enforce its duly enacted’ laws.”  See the order here and reports from The New York Times, CNN, and Politico.

  • The Court denied a request from the NCAA to stay a lower court ruling that allows colleges to provide education-related expenses to athletes. The challenged Ninth Circuit ruling upheld a district court’s injunction that found that the NCAA violated antitrust laws by barring schools from providing such expenditures to student athletes. The injunction will therefore stay in place pending the NCAA’s appeal. See reports from CNN and USA Today.

  • The Federalist Society’s D.C. Lawyers Chapter hosted its annual U.S. Supreme Court round up this week covering the 2019-2020 term. A recording of the event is available at this link.

Federal Appellate Court Opinions and News

  • The Eleventh Circuit upheld a lower court’s decision finding unconstitutional a Florida school’s transgender bathroom policy that prohibited a transgender student’s using the bathroom that matched his gender identity.  In upholding the decision, the court recognized that “[a] public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use.” The Eleventh Circuit ruling will affect school policy in Florida, Georgia, and Alabama. See order and reports from Courthouse News, CBS News, and Law.com.

  • The D.C. Circuit blocked a lower court’s order that Hillary Clinton be deposed as part of a lawsuit seeking records related to her use of a private email while Secretary of State. The ruling found that the stated topics for Clinton’s deposition were “completely attenuated from any relevant issue in [the FOIA] case.” See the order and reports from The Hill, Law.com, and Politico.

  • The Second Circuit upheld a lower court ruling that challengers lacked standing for their claims that NY gun licensing laws violated their Second Amendment rights. The challenge was to NY’s general prohibition against the possession of a firearm without a license. See the order and report from Bloomberg Law.

  • The Eighth Circuit has vacated and remanded for reconsideration a district court’s 2017 order enjoining four Arkansas abortion law that ban certain procedures and impose criminal penalties on doctors. The challenge claimed that the requirements of the laws could block access to all abortion procedures. The Eighth Circuit relied on Justice Robert’s concurrence in the June 29, 2020, decision in June Medical Services L. L. C. v. Russo and remanded for reconsideration in light of Justice Robert’s emphasis that “wide discretion” should be given to legislatures “in areas of medical uncertainty.” See the order and reports from Courthouse News, CNN, The Hill, and The National Law Journal.

State News

Recognizing the racists origins of the phrase, a Massachusetts court has refused to use the term “grandfathering” in its orders.  See footnote 11 in the order and a report from The New York Times.

August 14, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, August 10, 2020

Building a Pipeline to a More Diverse Appellate Bar

In the Spring of 2018, Justice Sonia Sotomayor visited the University of Houston law center, where I teach, and inspired our entire community. She shared some of her life experiences, and included the struggles that she encountered in college as she received feedback on her writing. We came away understanding that much of her success in law school could be credited to the work that she put in to strengthening her writing skills during her undergraduate studies. She was a brilliant student, but needed support to achieve her goals at the next level.

That same summer, I taught legal writing in the University of Houston’s award-winning Pipeline program for the first time. The program selects forty to fifty historically underrepresented and first generation undergraduate students to spend the summer in Houston learning about law school and the legal profession. I was energized to have the chance to work with undergraduate students who could build their skills before having them tested in the competitive law school environment.

Amid the COVID-19 pandemic and the protests and conversations around race that have happened this summer after the deaths of Ahmaud Arbery, George Floyd, and Breonna Taylor, I have been thinking about diversity in the legal field and the place of pipeline programs in increasing that diversity. Pipeline programs come in various forms. They target students earlier in the educational pipeline to try to give them educational support, information, and encouragement that will help keep them in the pipeline towards law school. This summer our pipeline programs moved online, as much of the rest of the education realm did. While students didn’t get to be in actual law school classrooms, they still experienced law professors, law classes, and virtual networking and mentorship.

How does this fit in with appellate advocacy? The same lack of diversity that affects the legal profession as a whole is magnified in the appellate bar and the judiciary. As an extreme example, those arguing before the Supreme Court are predominately white and male. The percentage of women arguing before the Supreme Court has hovered around 20% a term. When an African-American woman argues before the Supreme Court, it is newsworthy.

In the United States, 5% of attorneys are African American and 5% are Hispanic or Latino, while African Americans make up 13% of the overall population and Hispanic or Latino 18.5%. 2% of attorneys are Asian, while they make up 6% of the total population. On the other hand, 86% of attorneys are non-Hispanic Caucasian, while they make up only 60% of the overall population.
https://www.americanbar.org/content/dam/aba/administrative/market_research/national-lawyer-population-demographics-2010-2020.pdf

https://www.census.gov/quickfacts/fact/table/US/PST045219

Pipeline programs are attempting to shift these numbers over time to have higher levels of representation of the underrepresented groups.

How can you be involved? There are several ways. First, many pipeline programs are free or low cost to the students, so programs need sponsors. The ABA provides resources related to various pipeline programs here.

Second, programs also need mentors and placements for their students. The ABA Diversity Site has a Pipeline Directory where you can find local pipeline programs and diversity initiatives.
Finally, when you have an opportunity to mentor a prospective law student, be a good mentor. Many of these students are first generation college students and your experiences can be valuable to them.

Pipeline programs are valuable tools to increase the diversity of our profession, and it has been fulfilling to get to work closely with students and encourage them along their educational journey. Many of us can demystify some of the law school process and help students identify areas to grow in as they prepare for law school.

August 10, 2020 in Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, August 9, 2020

The Curious Case of Chief Justice John Roberts

Chief Justice John Roberts’s influence on the United Supreme Court’s jurisprudence has been substantial. Importantly, however, Chief Justice Roberts’s judicial philosophy and approach to constitutional interpretation have raised more questions than answers.

By way of background, when former President George W. Bush nominated John Roberts to the Supreme Court, most commentators speculated that Roberts would be a reliably conservative justice and embrace an originalist approach to constitutional interpretation. Indeed, during his confirmation hearings, Roberts emphasized the limited role of the judiciary, analogized judges to “umpires,” and rejected any suggestion that judges decide cases based on policy predilections.  As Roberts stated during his confirmation hearing:

A justice is not like a law professor, who might say, ‘This is my theory... and this is what I'm going to be faithful to and consistent with,’ and in twenty years will look back and say, ‘I had a consistent theory of the First Amendment as applied to a particular area.’ Judges are like umpires. Umpires don't make the rules. They apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire.[1]

Based on these and other statements, legal scholars understandably expected that Chief Justice Roberts would decide cases based on the Constitution’s text and the original meaning underlying its provisions,  and thus reach decisions that would favor conservative policy positions.

They were wrong.

Chief Justice Roberts’s jurisprudence has produced more confusion than clarity regarding his judicial philosophy and his approach to constitutional interpretation.  To begin with, in National Federation of Independent Investors v. Sebelius, Chief Justice Roberts surprised many legal commentators when he relied upon Congress’s power to tax and spend to uphold the constitutionality of the Affordable Care Act.[2] In so doing, Chief Justice Roberts held that the Court should defer to the coordinate branches when a statute can reasonably be interpreted to pass constitutional muster.[3] Importantly, however, in Shelby County v. Holder, Roberts authored the majority opinion in which the Court invalidated Section 4(b) of the Voting Rights Act of 1965 even though the United States Senate had voted 98-0 to re-authorize the Act.[4] And in McCutcheon v. FEC, Chief Justice Roberts authored the majority opinion in which the Court invalidated limits on contributions that individuals can make to candidates for federal office.[5] The decisions beg the question of why deference to the coordinate branches is acceptable in some cases but not others.

In the Supreme Court’s recent terms, some of Chief Justice Roberts’s decisions have engendered confusion regarding his judicial philosophy and approach to constitutional interpretation. For example, in June Medical Services, LLC v. Russo, Chief Justice Roberts concurred in a 5-4 decision that invalidated a Louisiana law requiring abortion providers to obtain hospital admitting privileges. In so doing, Chief Justice Roberts relied on principles of stare decisis to hold that the Court’s prior decision in Whole Women’s Health v. Hellerstadt, which invalidated a nearly identical statute in Texas, controlled the outcome.[6] Chief Justice Roberts’s decision was surprising in many respects. Specifically,  Chief Justice Roberts dissented from the Court’s decision in Whole Women’s Health and had previously stated in a brief drafted on behalf of the Department of Justice that Roe v. Wade – the foundation of the Court’s abortion jurisprudence – was “wrongly decided” because it had no “support in the text, structure, or history of the Constitution.”[7] Moreover, Chief Justice Roberts’s reliance on stare decisis in June Medical Services was troubling because in other cases, most recently in Janus v. American Federation of State, County, and Municipal Employees, Council, Roberts rejected stare decisis as a basis upon which to uphold precedent that he believed was wrongly decided.[8]  Perhaps more surprisingly in Bostock v. Clayton County, Chief Justice Roberts joined a six-member majority that construed Title VII of the Civil Rights Act, which when enacted prohibited discrimination based on race, color, religion, sex, and national origin, to encompass a prohibition against discrimination based on sexual orientation and gender identity.[9] Although many would agree that the Court reached a favorable outcome, the legal basis for that outcome was questionable. And in joining the majority, Chief Justice Roberts appeared less like an umpire and more like a cleanup hitter.

Of course, there are ways in which to construe Roberts’s decisions as entirely consistent with his judicial philosophy of being an “umpire,” as these cases involved entirely different facts and legal issues. Moreover, most, if not all, judges would eschew labels such as ‘conservative’ or ‘liberal,’ and assert that their decisions are predicated upon a faithful interpretation of the relevant constitutional or statutory text and a respect for precedent. Additionally, most, if not all, judges would state that it is improper to focus exclusively or even substantially on the outcomes that judges reach because doing so politicizes the judiciary and ignores the process by which judges decide cases.

All of this may be true. Notwithstanding, Chief Justice Roberts’s jurisprudence – at least in some cases – arguably deviates from his judicial philosophy, particularly his statement that the Court’s role is tantamount to an “umpire,” and his approach to constitutional interpretation, which prioritizes the text and history over contemporary societal attitudes. As Chief Justice Roberts stated in Obergefell v. Hodges:

[A] much different view of the Court’s role is possible.  That view is more modest and restrained. It is more skeptical that the legal abilities of judges also reflect insight into moral and philosophical issues. It is more sensitive to the fact that judges are unelected and unaccountable, and that the legitimacy of their power depends on confining it to the exercise of legal judgment. It is more attuned to the lessons of history, and what it has meant for the country and Court when Justices have exceeded their proper bounds. And it is less pretentious than to suppose that while people around the world have viewed an institution in a particular way for thousands of years, the present generation and the present Court are the ones chosen to burst the bonds of that history and tradition.[10]

Moreover, Chief Justice Roberts’s approach to deference and stare decisis has been inconsistent and unpredictable, thus casting doubt upon whether Chief Justice Roberts’s reliance on either doctrine was merely a vehicle by which to reach an outcome that had less to do with legal interpretation and more to do with political calculations.

So what is going on here?

The most likely explanation is that Chief Justice Roberts is striving to maintain the Court’s institutional legitimacy and credibility with the public. In so doing, Roberts may be particularly focused on avoiding decisions that are perceived as politically motivated or far removed from the mainstream of contemporary political attitudes. Although this approach is certainly understandable, it can have unintended consequences that cause the very problem that Chief Justice Roberts seeks to avoid. For example, if institutional legitimacy and the desire to be perceived as apolitical influences the Court’s decisions, those decisions will, by their very nature, be political because they will be guided by inherently political rather than legal considerations (e.g., the text of a statute or constitutional provision, and precedent). The unintended consequence is that the Court will become inextricably intertwined with, rather than removed from, politics, and further divorced from, rather than reliant upon, legal doctrine as the basis for judicial decision-making. Perhaps most importantly, the determination of precisely what decisions will maintain the Court’s legitimacy is invariably subjective, which risks rendering decisions that, in the name of legitimacy are, as a matter of constitutional law, illegitimate.

Ultimately, this is not to suggest that Chief Justice Roberts is deserving of criticism or has acted with anything but the utmost integrity when deciding cases. Indeed, before joining the Court, Chief Justice Roberts was one of the most influential, respected, and brilliant advocates in the United States, and by all accounts, is an extraordinary colleague and person.  

It is to suggest, however, that Chief Justice Roberts’s view of judges as “umpires” was probably correct and should remain as the judiciary’s guiding principle. After all, “[n]obody ever went to a ballgame to see the umpire.”[11]

 

[1] Chief Justice Roberts Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.

[2]  567 U.S. 519 (2012).

[3]  See id.

[4]  570 U.S. 529 (2013).

[5] 572 U.S. 185 (2014).

[6] 136 S. Ct. 2292 (2016).

[7]  Dylan Scott, John Roberts is the Supreme Court’s new swing vote. Is he going to overturn Roe v. Wade? (July 9, 2018), available at: https://www.vox.com/policy-and-politics/2018/7/9/17541954/roe-v-wade-supreme-court-john-roberts

[8] 138 S. Ct. 2448 (2017).

[9] 140 S. Ct. 1731 (2020).

[10] 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[11] Chief Justice Roberts's Opening Statement, Nomination Process, available at: https://www.uscourts.gov/educational-resources/educational-activities/chief-justice-roberts-statement-nomination-process.

August 9, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, August 1, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, August 1, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court refused to lift a July 2019 order that stayed a permanent injunction against the use of Pentagon funds to build the border wall. The Ninth Circuit had affirmed the injunction, finding that the administration’s “transfer of funds here was unlawful.” The Ninth Circuit reasoned that “the Constitution delegates exclusively to Congress the power of the purse” and that “[t]he executive branch lacked independent constitutional authority to authorize the transfer of funds.” In July 2019, the Supreme Court stayed that injunction pending the resolution of the administration’s appeal. This order denies a request to lift that stay, allowing construction to continue. See the order here and reports from The New York Times, CNN, The Washington Post, and Reuters.

  • The Court rejected another church challenge to Covid-19 restrictions, this one to Nevada’s 50-person limit to religious services. The challenge argued that churches faced tougher restrictions than casinos. The decision was without explanation and Justices Alito, Gorsuch, and Kavanaugh dissented. See the order here and reports from The New York Times, The Associated Press, and Reuters.

  • UCI held its 10th Annual Supreme Court Term in Review discussing the key cases from the Court’s October 2019 term. The event is available at this link.

  • Justice Breyer spoke with ABA President Judy Perry Martinez on July 29 during the organization’s annual meeting.  Find the discussion at this link.

Federal Appellate Court Opinions and News

  • The First Circuit vacated the Boston Marathon bomber’s death sentence, finding that the lower court did not adequately consider the effect of publicity on the jury that recommended the sentence. The order affirmed most of the conviction but ordered a new trial over only the sentence of death. The  order concludes: “But make no mistake: Dzhokhar will spend his remaining days locked up in prison, with the only matter remaining being whether he will die by execution.” See the order and reports from The Washington Post, Reuters, and The Wall Street Journal.  

  • The D.C. Circuit ordered a rehearing en banc on the dismissal of the case against Michael Flynn and vacated a decision that dismissed the case. The order directs the parties to “be prepared to address whether there are ‘no other adequate means to attain the relief’ desired,” which presumably relates to the principle argument that the writ of mandamus that directed the trial judge to dismiss the case was unwarranted because an alternative was available. The court will hear argument on August 11. See the order and reports from APNews, The New York Times, Reuters, and Bloomberg News.

State News

The Times-Picayune of New Orleans reports that Louisiana is among the states that have granted diploma privileges in light of concerns about sitting the Bar exam during the pandemic. Diploma privileges allow recent law school graduates to practice without taking the Bar exam. States have handled the concerns in a variety of ways, including administering the exam as usual, postponing the exam, offering the exam online, and granting diploma privileges. For a full list of the status of the 2020 bar by state, see this link

August 1, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 28, 2020

Manageability Is For Suckers

Much of the initial commentary on the Supreme Court’s fractured opinion in June Medical Services v. Russo focuses on the future of abortion rights, delving into the analytical choices made by Justices Breyer, Roberts, and Alito. But one overlooked theme from the opinion came from Justice Gorsuch’s brief discussion of justiciability. In his dissenting opinion, Gorsuch alluded to a broad requirement for manageable standards—even in cases not previously considered political questions—that could render the Court’s footprint in constitutional litigation significantly smaller over time.

Justiciability was not the only focus in Justice Gorsuch’s dissent. He primarily critiqued the plurality for improperly equating the factual record in June Medical Services with the factual record in Whole Woman’s Health v. Hellerstedt, decided four years earlier.[1] Gorsuch argued that Whole Woman’s Health included a fully-developed factual record specific to the medical and economic realities of Texas; the plurality erred by relying on that same record to find that the admitting privileges law at issue offered no benefit to the health of women in Louisana.[2]

But Gorsuch’s critique went beyond the way the plurality applied the wrong facts to a legal test that required states to show that their laws accrued some benefit to women’s health. Instead, he critiqued that test directly as one that was so malleable as to be hardly a legal test at all, or at least not the sort of test that the Supreme Court should promulgate in good conscience.[3]

Justice Gorsuch argued that any legal test created by the Court should at least be “replicable and predictable,” making it easier for lower courts to follow the Supreme Court’s jurisprudence.[4] Gorsuch then noted that “an administrable legal test even lies at the heart of what makes a case justiciable.”[5] The plurality’s test was not sufficiently manageable; Gorsuch equated its “all-things-considered balancing of benefits and burdens” to a “hunter’s stew,” whereby judges with wide discretion would combine any factual details that “look interesting” into a decision.[6] Driving home his point, Gorsuch quoted last term’s opinion in Rucho v. Common Cause—where the Court found that extreme partisan gerrymandering is a non-jusiticable political question because allegedly there are no “judicially discoverable and manageable standards for resolving” the issue.[7] This component of the political question doctrine, which the Court typically deploys to avoid deciding issues the Justices feel are best resolved by other branches, was thus central even to constitutional questions concerning individual rights under Gorsuch’s formulation.

If the Court deploys a strict understanding of the political question doctrine’s manageability requirement to any legal test, it could undermine many of the Court’s malleable, yet effective, legal standards. Gorsuch’s manageability requirement would seem to prohibit any test that examines the totality of the circumstances or even a wide array of nuanced factors sure to vary from case to case. The manageability requirement urges the Court to generate more bright-line rules that remove discretion from the lower courts, possibly at the expense of carefully-constructed rulings that improve accuracy in individual cases.

A broad manageability requirement could quickly take hold on the Court. In his own dissent in June Medical Services, Justice Thomas argued that stare decisis did not apply to Roe v. Wade and its progeny, in part, because “poorly reasoned precedents that have proved themselves to be unworkable” are ripe for overruling.[8] Though Thomas’s workability language varies slightly from Gorsuch’s manageability requirement, the sentiment is the same; the Court should not intervene in issues where the only legal tests available are too malleable for lower courts to implement in “replicable and predictable” decisions.[9]

The Supreme Court should strive to give the clearest directives possible to lower-level actors. But a broad manageability requirement in all cases would seemingly preclude the Court from resolving many of the pressing problems on its docket, even when the questions they present are in no way political. Whether Justice Gorsuch and others press for such a manageability requirement should be at the forefront of court-watchers’ minds, both in abortion litigation and elsewhere, for years to come.

 

[1] June Medical Serv. v. Russo, 591 U.S. __ (2020) (Gorsuch, J., dissenting) (slip op. at 14-15).

[2] Id. at 14-15

[3] Id. at 16-18.

[4] Id. at 16.

[5] Id.

[6] Id. at 17.

[7] Id. at 16 (quoting Rucho v. Common Cause, 588 U.S. ___ (2019) (slip op. at 11)).

[8] Id. (Thomas, J., dissenting) (slip op. at 18).

[9] Id. (Gorsuch, J., dissenting) (slip op. at 16).

July 28, 2020 in Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, July 18, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 18, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court’s vacatur of preliminary injunctions this week allowed the executions of three federal inmates and ended the 17-year hiatus from federal executions. Justice Breyer (joined by Justice Ginsburg) and Justice Sotomayor (joined by Justices Breyer, Kagan, and Ginsburg) each wrote dissents in both. See the orders here and here and reports in The New York Times, The Wall Street Journal, and The Associated Press.

  • The Supreme Court upheld the stay of a trial judge’s order finding unconstitutional Florida’s restriction on the voting rights of people with felony convictions who are unable to pay fees and fines, thus allowing the restrictions to continue. The restrictions limit a 2018 amendment to the Florida Constitution that sought to end the disenfranchisement of people convicted of felonies, except for murder and rape, “upon completion of all terms of sentence, including parole or probation.” Justice Sotomayor’s dissent recognizes that the “order prevents thousands of otherwise eligible voters from participating in Florida’s primary election simply because they are poor.” See the opinion and reports in The New York Times, The Washington Post, The Associated Press, and Reuters.

  • This week, Justice Ruth Bader Ginsberg announced the recurrence of her cancer, stating that chemotherapy is yielding “positive results” and that she has no plans to step down.  See the statement and reports from The New York Times and Reuters.   

Federal Appellate Court Opinions and News

  • The District of Maryland suspended a rule requiring an in-person doctor’s visit to get medication for a medical abortion, stating that, during Covid-19, the requirement likely violated the constitution as a substantial obstacle” to obtaining an abortion.  See reports from PBS, The Hill, Forbes, and Time.

  • The Ninth Circuit upheld a Montana court’s decision to reinstate the protections for the grizzly bear population in the Yellowstone area.  In 2007 and 2017, the Fish and Wildlife Service attempted to remove the grizzly from protection under the Endangered Species Act. See the opinion and reports from the Jurist and Bloomberg Law.

  • The Northern District of Georgia permanently struck the state’s anti-abortion law, which banned abortion after detection of a fetal heartbeat. The opinion ruled that the law constituted a “pre-viability abortion ban” and thus violated the right to obtain an abortion.   See the opinion and reports from Time and the Atlanta-Journal Constitution.

July 18, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 14, 2020

We're All Textualists Now

Preliminary-Treaty-of-Peace-painting-Paris-Benjamin-November-30-1782

In a 2015 Justice Elena Kagan quipped that, when it comes to statutory interpretation, "we're all textualists now." She noted that, when she was in law school, statutory interpretation was not taught, and that judges were often left to make what were essentially legislative decision in implementing the law as they believed the legislature intended.

Justice Scalia's tenure on the Court changed that. Scalia argued strongly for textualism as the primary methodology in statutory interpretation, and emphasized its value as a neutral starting point for judges who were meant to be more like umpires than congressmen. 

Those watching on the outside questioned the approach. Textualism and originalism are often associated with political conservatism. Some scholars looked at Scalia's decisions and questioned whether they were true methodologies, or just means to a political end. Many political conservatives believed that the increasing influence of textualism meant an increased likelihood that the Court would support their agendas.

Recently, in Bostock v. Clayton County, Justice Gorsuch addressed the meaning of "because of ... sex" in Title VII from a textualist standpoint. Gorsuch explained that under this approach, what the drafters intended in 1964 did not matter. What mattered where the words they used. And because those words prohibited treating a person different "because of sex," whenever sex is a “but-for” cause of an employment decision, Title VII is violated.

In his words: "If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the em­ployee’s sex would have yielded a different choice by the em­ployer—a statutory violation has occurred."

Commentators have had a field day in analyzing this decision. Many of those who are politically conservative are frustrated with the decision because it does not follow their agenda. Many of those who are progressive politically are ready to embrace Justice Gorsuch as a new torchbearer. And on both sides, there are concerns with how this simplistic "but-for" test will work out, with hypotheticals flying.

A short time later, Gorsuch penned another decision, this time in McGirt v. Oklahoma. Once again, Gorsuch's focus was on the text. First, the text that Congress had written to create a reservation for the Muscogee (Creek) Nation, and second, on the lack of any plain text disestablishing that reservation. Again, Gorsuch noted that Congress likely had the desire and intent to do so, but that it never issued any actual laws that would effectuate that intent.

These decisions are both solid evidence that textualism is a methodology, not an ideology. At least for Justice Gorsuch. Gorsuch applied the methodology in a way that permitted him to chart an objective path regardless of ideology.

Indeed, neuroscientists and jurists alike suggest that in order to overcome implicit bias, it is essential to employ objective methodologies. An approach that is rooted in textualism engages the brain in a way that requires "slow" thinking, and can avoid snap judgments based on presupposition.

When it comes to textualism, then, we really are all becoming textualists. Regardless of political affiliation. And we should not be surprised that when judges apply objective standards to statutory interpretation, that interpretation might not always be favorable to the platforms of the party that appointed them. Indeed, the Justices may not even agree with the eventual outcome itself. And that is the point.

(image credit: Signing the Preliminary Treaty of Peace at Paris, November 30, 1782, print reproduction of a painting by Carl Seiler. From the U.S. Diplomacy Center)

July 14, 2020 in Appellate Justice, Legal Ethics, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 7, 2020

Briefing Beyond Words - by Mark Trachtenberg

Today we have a guest post by Mark Trachtenberg. Mark is a partner with Haynes and Boone, LLP in Houston, Texas. He is board certified in civil appellate law by the Texas Board of Legal Specialization. You can learn more about his practice here.

I.     Introduction

    For decades, trial lawyers have understood the importance of visuals in persuading a jury. Now, appellate lawyers are learning that visuals can be just as powerful a tool for a judicial audience. With an influx of a media-savvy generation of younger lawyers into practice, a revolution in digital technology, the enormous proliferation of photographs and images in social and traditional media, and the explosion of tablets and laptops, the age of visual advocacy has arrived. Before filing any brief in the trial or appellate court, a lawyer should ask herself whether any portion of her argument could be enhanced or simplified through the use of a visual.

II.    How to use visuals effectively.

    To obtain examples of effective visuals, I surveyed my colleagues at Haynes and Boone, other appellate practitioners and a few appellate judges. I also attempted to find examples via Westlaw or other search engines. This survey culminated in an Appendix available here, which is organized by category of visual, including photographs and images, charts and graphs, tables, maps, timelines, flowcharts, diagrams and the like.

    From my survey, I have identified a few overarching lessons about effective use of visuals.

    First, craft each visual with the care you take with the text of your brief. Consider different alternatives. Ask colleagues for their opinions on which format is most effective. Continue to try to edit and improve the visual, as you would the rest of your brief. Ascertain whether the visual advances your argument or is merely decorative and thus potentially distracting. If the visual is misleading in any way, it will harm your credibility with the court, just as an improper record cite would.

    Second, as a general rule, embed the visual in the text of your brief, rather than include it in an appendix. The point is to have the visual reinforce the text and not force a judge or a clerk to toggle back and forth between the body of the brief and the appendix. While stashing a visual in an appendix may have been necessary in the era of page limits, that is not the case today.

    Third, visuals should simplify your argument, not make it more complex. Visuals that have too many words or try to cram in too many concepts are often counterproductive because they distract the reader or divert attention from the flow of your argument.

    Fourth, frame the significance of the visual in the sentence or paragraph immediately preceding it, to prime the reader as to what he or she should be looking for. A good example can be found at Tab A-12 of the Appendix, where attorneys for Apple discuss Samsung’s surge in market share after introduction of a model allegedly copying the iPhone, before that surge is reinforced visually.

Samsung 2

    Fifth, use color in graphs, charts, etc. to help break up long, monotonous blocks of black and white text. Color can be an important tool to show contrasts, similarities, or relevant groupings. In Tab G-4 of the Appendix, for example, the author uses color to show the appellant’s control of key levers of a joint venture.

Chart 2

    Sixth, in deciding whether to include a visual, remember that you are still addressing an appellate court, not a jury. Including a picture of a deceased plaintiff to generate sympathy or outrage is the equivalent of making a jury argument a state’s high court.

    In this paper and powerpoint, I highlight examples of effective visuals from each designated category and offer some thoughts about in which contexts they might be most helpful.

III.    The future of visuals

    While the paper focuses on embedding still images, photos, and graphics in briefs, technology permits much more, and developments in multimedia creation, storage and display continue at a rapid pace.

    Already, litigants have made videos played at trial accessible to appellate courts via a clickable Internet link.[1] But, if megabyte limitations on e-filings can be overcome or are loosened, it will not be long before video and audio files are directly embedded into e-briefs. An advocate could thus prominently feature footage from a security video, a police dashboard cam or body-cam, a surgical procedure, or the like in the heart of a brief, instead of relegating it to an appendix or record cite. Likewise, any key video deposition clips played to the jury could also be embedded in a brief. Audio files—like a 911 call, for example—could easily be embedded too.

    Animations could feature more prominently in appellate briefs, instead of being used only in jury trials. A quick search of the websites of various trial graphics companies illustrates how effective these animations can be.[2] One consultant artfully explains that: “If a ‘picture is worth a thousand words,’ then a computer-generated animation says a thousand words, sings a thousand songs, and paints with a thousand colors all at once.”[3]

Another scholar speculates that other embedded technology in briefs might include, among other things:

  • Graphics Interchange Format, or GIFS;
  • 360-degree panoramas (of accident scenes, etc.);
  • Powerpoint decks that would allow the viewer to scroll through a slideshow composed of images, graphics, or other information; or
  • Rollover/hover states, which would display new information over the existing text or graphic when the cursor hovers over it.[4]

    As a paradigmatic example, the scholar points to an article posted in Medium in which the author weaves together a host of embedded images, screenshots, maps, and audio files to tell a story about a harrowing encounter with the San Francisco police.[5]

    If The New York Times is any indication, change is coming. In the 20th century, that newspaper earned the nickname “The Gray Lady” for its heavy reliance on text and the absence of color (the first cover with a color picture was published in 1997). Now, its website is a “pulsing quilt of video and interactive graphics,”[6] podcast links, and even virtual reality experiences.

    For too long, tradition and inertia have led to a significant underutilization of photos and other images in legal briefs. But those days are over. If 81-year old Justice Stephen Breyer and 70-year old Justice Samuel Alito can effectively embed visuals in their legal writing as they did in opinions issued last week (see below), so can you![7]

 

[1] See Petitioner’s Brief on the Merits, BNSF Railway Co v. Nichols, No. 12-0884, at 3 (Tex. June 19, 2013), available at http://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9730f55f-c6b0-4408-9b92-afcd8f9d2805&coa=cossup&DT=BRIEFS&MediaID=8f049b10-6caa-45cd-aa2f-f0ba38599a46; see also Tab A-4.

[2] See, e.g., (1) https://courtroomanimation.com/results/, (2) https://www.legalgraphicworks.com/services/animation/, or (3) https://www.decisionquest.com/services/litigation-graphics-consulting/legal-animation/.

[3] Fred Galves, Where the Not-So-Wild Things Are: Computers in the Courtroom, the Federal Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance, 13 Harv. J. L. Tech. 161, 190 (2000) (author is a professor and litigation consultant).

[4] See Elizabeth G. Porter, Taking Images Seriously, 114 Colum. L. Rev. 1687, 1749-50 (2014).

[5] Id. at 1750-51 & n.294 (citing https://medium.com/indian-thoughts/good-samaritan-backfire-9f53ef6a1c10).

[6] Id. at 1693.

[7] See June Med. Servs. L.L.C. v. Russo, No. 18-1323, 591 U.S. —, slip op. at 33 (June 29, 2020) (Breyer, J., plurality), https://www.supremecourt.gov/opinions/19pdf/18-1323_c07d.pdf; Espinoza v. Montana Dep’t of Rev., No. 18-1195, 591 U.S. —, slip op. at 4-5 (June 30, 2020) (Alito, J., concurring), https://www.supremecourt.gov/opinions/19pdf/18-1195_g314.pdf

Blog 5
Blog 5

July 7, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, July 4, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, July 4, 2020

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

Happy Independence Day!

 

US Supreme Court Opinions and News

  • The Supreme Court issued a much-anticipated order on abortion this week, striking a Louisiana law that required doctors performing abortions to have admitting privileges at nearby hospitals. The Louisiana law was “almost word-for-word identical to Texas’ admitting privileges law,” which the Court struck in 2016 in Whole Woman’s Health v. Hellerstedt. Justice Breyer penned this order, joined by Justices Ginsburg, Sotomayor, and Kagan, and found the Louisiana law to be an unconstitutional inference with a woman’s right to obtain an abortion. Like in the 2016 decision, the ruling finds that the law’s requirements have no medical benefit. Justice Roberts, who dissented in the 2016 Texas decision, concurred in the judgement, writing that he still believed the 2016 ruling to be “wrongly decided” but that stare decisis compelled this decision. See opinion and a sampling of the many reports from The New York Times, The Wall Street Journal, The Washington Times, and NPR.

  • The Court ruled that a Montana tax break that excluded religious institutions discriminated against religious schools, finding that states must allow religious schools to participate in programs that provide scholarships.  See opinion and a report from The New York Times.

Federal Appellate Court Opinions and News

  • The Seventh Circuit, after a three-year delay, reinstated some Wisconsin limits on voting, including laws on voter ID and early voting procedures. The court overruled the lower court that found that many of Wisconsin’s election laws disproportionately affected the ability of minorities to vote. The court found no evidence that lawmakers intended to discriminate against minorities, finding “[t]his record does not support a conclusion that the legislators who voted for the contested statutes cared about race; they cared about voters’ political preferences.” And the court found that the limits did not violate the First Amendment or the Voting Rights Act because “they leave all voters with equal opportunities to participate.” See the opinion and reports from The Milwaukee Journal Sentinel, The Courthouse News, and  The Election Law Blog.
  • A panel of the D.C. Circuit ordered the immediate dismissal of the criminal case against Michael Flynn.  See reports from The New York Times, The Associated Press, and The Hill.

State News

The Pennsylvania Supreme Court ruled that the state legislature cannot unilaterally end the governor’s pandemic shutdown orders. Specifically, the ruling determined that the lawmakers resolution to end the orders was a “legal nullity” because it was not presented to the governor for signature or veto. See reports from The Associated Press and The Patriot-News of Harrisburg.

July 4, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, June 21, 2020

The Nature of Judging at the United States Supreme Court

This week, the United States Supreme Court issued rulings in two cases – Bostock v. Clayton County and Department of Homeland Security v. Regents of the University of California ­– that surprised some court observers. In Bostock, the Court held by a 6-3 margin that Title VII of the Civil Rights Act prohibited discrimination on the basis of sexual orientation and gender identity.[1] In so holding, the Court, per Justice Neil Gorsuch, held that discrimination on either basis necessarily entailed discrimination on the basis of sex.[2] In Department of Homeland Security, the Court held, by a 5-4 margin (with Chief Justice Roberts joining the Court’s four liberal members), that the manner in which the Trump administration terminated the Deferred Action for Childhood Arrivals Program (DACA) violated the Administrative Procedure Act.[3]

The decisions surprised some court observers. For example, in Bostock, some scholars expected that Justice Gorsuch, who embraces a form of statutory interpretation known as textualism, would hold that the word “sex” as contained in Title VII referred only to discrimination on the basis of biological sex. After all, when Title VII was enacted, legislators neither expressly nor implicitly suggested that sexual orientation or gender identity came within the purview of sex-based discrimination. Likewise, in Department of Homeland Security, some scholars expected that Chief Justice Roberts would uphold the Trump administration’s decision.

So what is going here? In short, the answer is that the justices rely on extralegal factors when making decisions and those factors explain why decision-making at the Court is not, as Justice Elena Kagan once stated, “law all the way down.”[4]

Below is a brief summary of several factors that may – and likely do – influence the Court’s decision-making process.

I.    Concerns for institutional legitimacy matter – particularly for Chief Justice John Roberts

The Court is undoubtedly – and rightfully – concerned with its institutional legitimacy. Indeed, inspiring public confidence in the Court’s decision-making process, which includes cultivating the perception that the justices are neutral arbiters of the law, is essential to maintaining the Court’s legitimacy and credibility. For that reason, the Court is understandably reluctant to issue decisions that are inconsistent with precedent, overly broad, politically unpopular, and unnecessarily divisive. Put simply, the Court is dedicated to preserving its status as an independent legal institution that is neither influenced by nor concerned with political ideology.

Some court observers posit that Chief Justice Roberts is particularly concerned with preserving the Court’s institutional legitimacy. For example, Roberts’s desire to avoid 5-4 decisions (to the extent possible) and refrain from deciding socially and politically divisive cases underscores his commitment to the Court’s legitimacy. In fact, concerns for institutional legitimacy arguably motivated, at least in part, Chief Justice Roberts’s decision in National Federation of Independent Investors v. Sebelius, where he upheld the Affordable Care Act on the basis that the Act’s individual mandate constituted a permissible tax.[5]

But the desire to protect the Court’s institutional legitimacy is a questionable basis for judicial decision-making. Simply put, it is difficult to identify the criteria or circumstances in which a specific outcome will preserve, rather than undermine, the Court’s legitimacy. For example, in Shelby County v. Holder, Chief Justice Roberts voted with the Court’s conservative members to invalidate portions of the Voting Rights Act, which was a politically and publicly unpopular decision.[6] And despite the increasing public and political support for same-sex marriage, Chief Justice Roberts dissented in Obergefell v. Hodges, arguing that the Fourteenth Amendment to the United States Constitution did not encompass a right to same-sex marriage.[7] Reasonable people would certainly disagree regarding whether these decisions protected the Court’s legitimacy.

Such disagreement highlights the problem when placing emphasis on institutional legitimacy as a basis for rendering decisions. To begin with, the concept of institutional legitimacy can be defined differently. For example, does a decision further the Court’s institutional legitimacy if it is consistent with public opinion or the policy predilections of legislators? Do concerns for institutional legitimacy require the Court to adopt an originalist philosophy or, at the very least, ensure that its decisions are consistent with a reasonable interpretation of the Constitution’s text? Does the Court’s institutional legitimacy depend on whether the outcome is considered just and fair? These questions highlight the problem: preserving institutional legitimacy depends on each justice’s subjective view of what decisions (and interpretative) methods achieve that goal. For that reason, an exclusive or predominant focus on preserving the Court’s institutional legitimacy can inadvertently undermine the very legitimacy that the justices seek to preserve.

II.    Ideology matters – for conservative and liberal justices

For both conservative and liberal justices, ideological considerations and policy predilections influence their decision-making process. Of course, this is not true in every case, as many cases do not implicate ideological considerations to a significant degree or require the application of other principles, such as stare decisis, that constrain a justice’s ability to predicate a decision on ideology alone.

However, in politically or socially divisive cases, such as those involving affirmative action, abortion, the death penalty, or the right to bear arms, ideology arguably plays a role. Indeed, a substantial body of research suggests that the justices render decisions that are consistent with their political beliefs. Perhaps for this reason, in some cases, lawyers and scholars can accurately predict how the justices will rule. For example, the Court’s four liberal justices will almost always abortion restrictions. The Court’s most conservative justices will often be unreceptive to arguments that the imposition of the death penalty in a given case violates the Eighth Amendment. Justice Sotomayor will almost certainly be hostile to challenges to affirmative action programs and Justice Alito will almost certainly be receptive to such challenges. Justice Ginsburg will almost certainly invalidate restrictions on abortion access while Justice Thomas will almost certainly uphold such restrictions. Not surprisingly, these outcomes align perfectly with the justices’ policy and political preferences.

Of course, a substantial portion of the Court’s cases are decided unanimously, and, as stated above, in many cases, ideology is not implicated to a substantial degree. But make no mistake: ideology does influence at least a portion of the Court’s decisions.

III.    Bias matters – for both liberal and conservative justices

Social science research suggests that bias affects liberal and conservative justices and that this bias reflects, in part, each justice’s personal background and experience. For example, gender bias is prevalent in criminal sentencing, as men often receive harsher sentences than women.[8] In fact, “the sentencing disparities among gender are some of the most visible and persistent sentencing disparities in this country.”[9] Additionally, African-American defendants often receive harsher sentences than white defendants.[10] As one scholar explains:

[T]he body of research on the potential for invidious biases in judges arising from reliance on emotion or implicit stereotypes supports a troubling conclusion: Judges do not easily set such extralegal matters aside. The feelings and biases that influence most adults seem to also affect judges.[11]

Of course, this research should not suggest that the justices are motivated primarily or even secondarily by explicit or implicit bias. It does suggest, however, that the justices, like all individuals, are susceptible to confirmation bias, which is an “effort to seek out information that is consistent with one’s prior beliefs, while ignoring or avoiding information that could refute them.”[12] In so doing, the potential for reaching an improper result increase substantially.

IV. `Emotion matters – it’s not, as Justice Elena Kagan once stated, “Law all the way down”

Empirical research demonstrates that a judge’s emotions matter in the decision-making process. To be sure, a “series of experiments with hundreds of judges from numerous jurisdictions concluded that emotions influence how judges interpret law when evaluating hypothetical cases.”[13] As researchers explain:

[J]udicial reliance on emotion in decision making can be defensible. Judges should temper their application of law and logic with expressions of compassion and empathy. Indeed, one set of studies finds that judges seem to largely ignore apologies in both civil and criminal cases, making the judges seem overly dispassionate. [Studies in other contexts], however, go well beyond a sensible level of compassion. No one can defend taking a football loss out on juveniles, setting lower bail for more attractive litigants, or treating Muslim litigants differently after 9/11. Nevertheless, these studies show judges to be vulnerable to several such untoward influences.[14]

Emotion would certainly seem relevant because, in many cases, a constitutional or statutory provision is susceptible to different interpretations, and because judges probably want to reach what they believe is the most equitable and fair result.

V.    Intuition matters

Studies show that, in some instances, judges base decisions in large part on intuition, rather than on evidence or empirical data. Indeed, “[i]n one study, 160 federal judges evaluating a hypothetical case neglected statistical evidence in favor of intuition in the assessment of negligence.”[15] As one study demonstrated, “judges rely heavily on intuitive reasoning to evaluate legal disputes,” “use simple mental shortcuts to guide how they think about legal materials,” and “do not improve with experience or specialization.”[16] In fact, the “excessive reliance on an intuitive response” is responsible in substantial part for the prevalence of confirmation bias.

***

Ultimately, the relevant research on judging suggests that judges strive to achieve what they believe is the fairest and most just result. Put differently, judges do not necessarily reach decisions based on what they are compelled to do but based on what they are able to do in a given case. This supports the proposition that judging is strategic and personal, not merely legal. For that reason, law students and advocates should consider the influence of the above factors when developing and making legal arguments. Judges, including the justices on the Supreme Court, are human beings and judging is a human enterprise.

 

[1] See 590 U.S. ___ , 2020 WL 3146686.

[2] See id.

[3] See 590 U.S. ___, available at: https://d2qwohl8lx5mh1.cloudfront.net/Xpikua_BIGWtET0SEU1fDQ/content.

[4] Josh Blackmun, Kagan- Law All The Way Down, Stephen Hawking- Turtles All The Way Down (2010), available at: http://joshblackman.com/blog/2010/06/30/kagan-law-all-the-way-down-stephen-hawkingng-turtles-all-the-way-down/.

[5] 567 U.S. 519 (2012).

[6] 570 U.S. 529 (2013).

[7] 576 U.S. 644 (2015).

[8] See id.

[9] Id. at 28 (internal citation omitted).

[10] Id. at 29.

[11] Id. at 32.

[12] Id. at 16.

[13] Id. at 24.

[14] Id. at 27.

[15] Id. at 14.

[16] Id. at 21.

June 21, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, June 20, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, June 20, 2020

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

US Supreme Court Opinions and News

  • Earlier this week, the Supreme Court in a 6-3 decision ruled that the plain language of the Civil Rights Act of 1964 applies to discrimination based on both sexual orientation and gender identity. Widely seen as a landmark decision, the ruling applied textualist principles and found that the plain language unambiguously protects gay, lesbian, and transgender employees because decisions discriminating for those reasons are—at their core—decisions discriminating because of sex. The opinion recognizes that "[i]t is impossible to discriminate against a person for being homosexual or transgender without discriminating ... based on sex.”  See the opinion and a sampling of the many reports from NPR, The New York Times, The Washington Post, and Bloomberg Law.
  • On Thursday, in another much-anticipated case, the Court ruled 5-4 that the administration’s attempt to end DACA is impermissible. Justice Roberts writes, “We do not decide whether DACA or its rescission are sound policies. ‘The wisdom’ of those decisions ‘is none of our concern.’ [citation omitted.] We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” See the opinion and a sampling of the many reports including from The New York Times, CNN, NBC News, and NPR.  

Federal Appellate Court Opinions and News

  • Last week, the Fourth Circuit invoked the murder of George Floyd in its opinion reversing a lower court and refusing to apply qualified immunity to dismiss a lawsuit again police officers who shot a black American 22 times after the victim had been subdued. The opinion found that if the victim “was secured, then police officers could not constitutionally release him, back away, and shoot him. To do so violated [his] constitutional right to be free from deadly force under clearly established law." The opinion also states that, “[a]lthough we recognize that our police officers are often asked to make split-second decisions, we expect them to do so with respect for the dignity and worth of black lives. Before the ink dried on this opinion, the FBI opened an investigation into yet another death of a black man at the hands of police, this time George Floyd in Minneapolis. This has to stop.” See the opinion and reports from CNN, The Washington Post, and The National Law Journal.
  • Today, a federal court denied an emergency request from the Justice department block former national security adviser John Bolton's book from being published. The court held that, “while Bolton's unilateral conduct raises grave national security concerns, the government has not established that an injunction is an appropriate remedy.” See reports from The Hill, CNN, and NPR (find order at NPR link).   

June 20, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Monday, June 8, 2020

Practice in Place: My Interview with David Lat

Two weeks ago I shared an interview that I did with Sean Marotta and Raffi Melkonian.  Today I am sharing an interview that I did recently with David Lat.  David is the founding editor of the popular blog Above the Law.  He is also now a managing director at Lateral Link. In this interview, David talks about his personal, near death experience with COVID-19.  He also shares his thoughts on the future of the legal practice post-COVID, the future of oral arguments in the appellate and Supreme Court, and which Justice he thinks would have the best Zoom background.  Thanks David for joining me for the interview!

Edited: Sorry about the video issues, I think that it is fixed.

 

 

 

 






 

 

 

June 8, 2020 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Saturday, June 6, 2020

Appellate Advocacy Blog Weekly Roundup Saturday, June 6, 2020

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

US Supreme Court Opinions and News

In a 5-4 decision with Justice Roberts as the swing vote, the Supreme Court rejected an emergency appeal by a California church that challenged Covid-19 related restrictions on attendance at worship services. The church argued that the state guidelines limiting attendance at places of worship to 25% of building capacity or a maximum of 100 attendees violate constitutional guarantees of religious freedom. Justice Roberts concurred in the denial and wrote that the “restrictions appear consistent with the Free Exercise Clause of the First Amendment” and that the “Constitution principally entrusts the safety and the health of the people to the politically accountable officials of the States to guard and protect.” (Internal quotes and citations omitted.) See opinion and a sampling of the many reports from The New York Times, The Washington Times, The Associated Press, Reuters,

Federal Appellate Court Opinions and News

The District Court for the District of Arizona ruled that a same-sex spouse cannot be denied Social Security survivor benefits for failure to meet the marriage duration requirement without consideration of whether the marriage was prohibited by unconstitutional laws barring same-sex marriage. For a surviving spouse to receive Social Security benefits, the couple must have been married for “a period of not less than nine months.” (42 U.S.C. 416(g).). The SSA argued that the provision was neutral because it applied equally to all seeking benefits. The court rejected that claim because same sex couples have been impacted by law prohibiting their marriages, which affects their ability to meet the marriage duration requirement.  The opinion recognizes that, “[b]ecause same-sex marriage is a fundamental right, and the underpinnings of the duration-of-marriage requirement has relied on the unconstitutional ban of that right, [the regulation] cannot be said to be rationally related to a legitimate interest to a surviving spouse.” See ruling and case summary and reports from Slate and NBCNews.

State Court Opinions and News

The nine justices of the Washington Supreme Court, in an extraordinary step, penned an open letter to the legal community addressing racial injustice. The letter recognizes the role of the judiciary and the legal community in the continuing injustices against black Americans. From the letter:  

Recent events have brought to the forefront of our collective consciousness a painful fact that is, for too many of our citizens, common knowledge: the injustices faced by black Americans are not relics of the past. We continue to see racialized policing and the overrepresentation of black Americans in every stage of our criminal and juvenile justice systems. Our institutions remain affected by the vestiges of slavery: Jim Crow laws that were never dismantled and racist court decisions that were never disavowed.

The legal community must recognize that we all bear responsibility for this on-going injustice, and that we are capable of taking steps to address it, if only we have the courage and the will. . . .

As judges, we must recognize the role we have played in devaluing black lives. This very court once held that a cemetery could lawfully deny grieving black parents the right to bury their infant. We cannot undo this wrong—but we can recognize our ability to do better in the future. We can develop a greater awareness of our own conscious and unconscious biases in order to make just decisions in individual cases, and we can administer justice and support court rules in a way that brings greater racial justice to our system as a whole.

See the full letter and reports from The National Law Journal, Law.360, and The Tacoma News Tribune.

June 6, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, May 23, 2020

Reviewing the United States Supreme Court’s Decision in Kahler v. Kansas

In Kahler v. Kansas, the United States Supreme Court confronted the question of whether a state could effectively eliminate the insanity defense.

I.    The Court’s Decision

By way of background, in criminal prosecutions nearly all jurisdictions provide an insanity defense that enables defendants to prove that they are not legally responsible for a charged offense. Although the elements of the insanity defense differ somewhat among the states, most follow or closely track the M’Naghten rule, which requires defendants to demonstrate that: (1) they suffered from a diagnosed mental illness; and (2) due to such illness, they did not appreciate the wrongfulness or of their conduct (i.e., could not distinguish between right and wrong). The insanity defense is used in approximately one percent of criminal cases and only succeeds in about one-quarter of those cases.

In Kahler, the State of Kansas did not eliminate the insanity defense per se. Instead, Kansas adopted a different approach in which defendants could be absolved of criminal responsibility if they could demonstrate that their mental illness negated the intent element of a particular crime.[1] Writing for the majority, Justice Elena Kagan held that state laws regarding criminal responsibility are only unconstitutional if they violate "some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.”[2] Applying this rather vague and subjective standard, the majority held that the Fourteenth Amendment does not require states to adopt an insanity defense that focuses on moral wrongfulness.  Rather, the insanity defense is “substantially open to state choice” and “animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time.”[3] Thus, the majority rejected the argument that the Fourteenth Amendment required states to adopt a particular test for insanity, including a test that focused on whether defendants knew that their actions were morally wrong. Indeed, as the majority stated, “no single version of the insanity defense has become so ingrained in American law as to rank as ‘fundamental.’”[4]

II.    Analysis

The Court got it wrong.

There should be a constitutional minimum – a baseline – that ensures the fair and just treatment of mentally ill defendants at both the adjudicatory and sentencing stage. Indeed, the Court – and state legislatures - should recognize that severe mental illness reduces culpability and in some cases, criminal responsibility, regardless of whether a defendant knew that the conduct in question was legally proscribed or morally wrong.  Doing so would demonstrate that Kansas's approach, and the standard used in most jurisdictions (the M’Naghten rule), is woefully inadequate. It leads to grave injustices. And it demonstrates an alarming indifference to the direct and indirect consequences that mental illnesses exact on individuals' ability to reason and make informed choices.

Indeed, although some mental illnesses do not necessarily negate the intent element, these illnesses often cause a person to act with an ‘intent’ that is not culpable or even worthy of criminal responsibility. In his dissent, Justice Stephen Breyer highlighted the flaw in Kansas’s approach. Justice Breyer explained that “Kansas has not simply redefined the insanity defense,” but instead “has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.”[5]

Justice Breyer explained as follows:

A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.[6]

That, in a nutshell, is the point – and the problem. To hold that the second individual in Justice Breyer’s hypothetical acted with the requisite intent is to reduce intent to a standard that is divorced from context and deliberately indifferent to empirical evidence demonstrating that, in some circumstances, mentally ill individuals do not – and cannot – act rationally. They act impulsively. They act under a false set of beliefs that influence their decisions and motivate their actions.

III.       Broader Problems With the Insanity Defense

The problems with Kansas's approach represent only the tip of the constitutional iceberg. The standards governing insanity in many jurisdictions, which largely track the M’Naghten rule, are deeply troubling.[7] Specifically, requiring defendants to show that they could not appreciate the wrongfulness of their actions (i.e., distinguish right from wrong) ignores the deleterious effects of mental illness on human behavior. Severely mentally ill individuals may know that an action is legally proscribed or morally wrong, but that fact is irrelevant to such individuals because, in some instances, they form a distorted set of beliefs, experience an inability make rational decisions, and struggle with an emotional state that can allow impulse to trump reason. By ignoring or failing to sufficiently account for this, the extant approaches make it all but certain that severely mentally ill individuals will be found guilty of various criminal offenses, face substantial periods of incarceration where they will receive inadequate treatment (and inevitably decompensate), and struggle to reintegrate into society upon release.

As a policy matter, this is problematic, if not fundamentally unjust. Mentally ill individuals often deteriorate while incarcerated, as they lack the support and structure necessary to effectively treat their illnesses. Upon release, such individuals frequently find it difficult, if not impossible, to successfully transition into the community, obtain meaningful employment, and achieve the stability necessary to lead functional lives. These deleterious consequences result in part from instituting a narrow and underinclusive insanity defense at the adjudication stage, and defaulting to incarceration rather than treatment at the sentencing phase, notwithstanding that there is little, if any, evidence that incarcerating mentally ill individuals serves any purpose of criminal punishment (e.g., deterrence). Simply put, the manner in which mentally ill individuals are treated in the criminal justice system is a national disgrace.[8]

IV.    Reforms

Principled reforms should include broadening the insanity defense to eliminate the moral wrongfulness requirement (i.e., that defendants lack appreciation of the wrongfulness of their conduct), recognizing the mitigating effects of mental illness on culpability and, in some cases, criminal responsibility, providing convicted but mentally ill defendants with treatment rather than incarceration (or at least ensuring a competent treatment protocol), reducing sentences, and establishing effective reentry programs to facilitate mentally ill defendants’ transition into society upon release.

Put simply, states, like Kansas, should no longer be allowed to ‘experiment’ with the insanity defense. A uniform approach at the adjudication and sentencing phase is necessary to ensure that mentally ill defendants receive equal protection under the law.

 

[1] See Kahler v. Kansas, No. 18–6135, available at: https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf

[2] Id.

[3] Id.

[4] Id. (internal citation omitted).

[5] Id.

[6] Id.

[7] A minority of states have adopted broader versions of the insanity defense and thus provide defendants with fairer and more just opportunities to demonstrate that their mental illnesses substantially reduce, if not eliminate, responsibility for a particular crime.

[8] This is not to say, of course, that mentally ill individuals are more likely to commit crimes. It is to say, however, that when individuals with severe and diagnosed mental illnesses, such as schizophrenia and bipolar disorder, engage in criminal conduct, the law should provide a remedy, at the adjudication and sentencing stages, to ensure that such individuals receive treatment for such illnesses.

 

May 23, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, May 22, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 22, 2020

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

US Supreme Court Opinions and News

  • The Supreme Court unanimously ruled that Sudan must pay the over-$10 billion judgement awarded to the victims of the 1998 al-Qaeda bombing of the U.S. embassies in Kenya and Tanzania. The ruling allows Sudan to be held liable for both punitive and compensatory damages. A 2014 appellate ruling had determined that a 2008 law that permitted retroactive application of compensatory damages to cases involving state-sponsored terrorism did not extend to punitive damages.  The Supreme Court reversed that ruling and reinstated the 2012 judgment.  See opinion and reports from Bloomberg, The Washington Post, and The Associated Press.  

  • The Court refused to grant Idaho officials' request to block a transgender inmate’s surgery pending appeal.  The ruling leaves in place a Ninth Circuit order ruling that, by failing to provide the inmate’s gender confirmation surgery, Idaho violated the Eight Amendment’s ban on cruel and unusual punishment. Idaho is appealing to the Supreme Court, which has not yet decided whether it will hear the case. See reports from The New York Times and NBC News.

  • The Court has refused to grant an “emergency” request by two Texas inmates to reinstate a district court order that had required a Texas prison to take measures to protect inmates against the threat of COVID-19. A federal appeals court stayed the order pending appeal and found that the measures required by the district court’s order went further than Centers for Disease Control and Prevention guidelines.  Although agreeing with the ultimate decision to deny the request, Justice Sotomayor issued a statement, to which Justice Ginsberg joined, to “highlight disturbing allegations” in the case. She writes: "It has long been said that a society's worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales." See Justice Sotomayor’s statement and reports in The New York Times, CNN, The Wall Street Journal, and Bloomberg Law.

Federal Appellate Court Opinions and News

  • The Fourth Circuit has allowed an emoluments suit against the president to proceed. The case, by Washington D.C. and Maryland, alleges that Donald Trump violated the Constitution by profiting from foreign and state patrons at his Washington, D.C., hotel. The court found a genuine dispute over the definition of an “emolument,” writing “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one.” See opinion and a sampling of the many reports at The New York Times, The Courthouse New Service, The Hill, Politico, and The Washington Post.   

  • The Fifth Circuit has temporarily stayed a Texas district court’s May 19 ruling that would have allowed voters in Texas to vote by mail during the COVID-19 pandemic. The district court’s ruling found that the disability provision in the Texas vote-by-mail code applied to voters who “lack immunity from COVID-19 and fear infection at polling places.” See report at CNN, The Texas Tribune, and The Dallas Observer.

  • The Sixth Circuit granted rehearing en banc and vacated its decision finding that the “the Constitution provides a fundamental right to a basic minimum education” and defining that as an education that “plausibly provides access to literacy.”  This column reported on the Sixth Circuit’s right-to-education decision a few weeks ago.  See the order granting rehearing and reports from Bloomberg Law and Detroit Free Press.

State Court Opinions and News

  • In Michigan, the court have upheld the governor’s right to extend a stay-at-home order. Michigan residents claimed that the stay-at-home measures infringed on their constitutional rights.  The court recognized that the state has authority to enact policy when “faced with a public crisis” and determined that the policy was consistent with the law.  The court further iterated that a citizen’s constitutional rights are “subject to reasonable regulation by the state.”  See report by CBS News and The Hill.
  • In Wisconsin, the state supreme court struck down the governor’s stay-at-home order, ruling that the governor had overstepped his authority by extending the quarantine measures without consulting the legislature.  See the opinion and reports from The Associated Press, The Hill, and Wisconsin Public Radio.
  • In Oregon, the state supreme court stayed a county judge’s ruling that declared the governor’s COVID-19 measures concerning church gatherings “null and void.” See report in The Oregonian.

May 22, 2020 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Wednesday, May 20, 2020

Chief Justice Roberts, Timecop: data-driven analysis of telephonic oral argument in the Supreme Court

In the time it takes for most of us to formulate a coherent thought, @LeahLitman has written an entire paper.

Prof. Kate Shaw

The team here at the Appellate Advocacy Blog has discussed impressions, both our own and those of others, of telephonic oral arguments in the United States Supreme Court. We're fresh off the Court's reluctant pivot in the first two weeks of May to socially-distanced oral argument. And because the Court adopted telephony rather than video, it had to adjust the process of oral argument: the rapid-fire, justice-dominated, interruption-heavy free-for-all dynamic of modern SCOTUS oral argument would devolve into crackling chaos if freighted without modification into a world of sound and fury, void of visual cues. So adjust it did: the justices asked questions in turn, in order of seniority. And they did so under relatively strict time management by the Chief Justice.

As we've seen from the fascinating work of scholars like Tonja Jacobi and others (which I've discussed here and here), there's much one can draw from careful analysis of data from oral arguments. So, as the dynamic of oral exchanges at SCOTUS has shifted in These Challenging Times, it's cool to see scholarship already emerging that extracts and analyzes data from the arguments. Nearly two weeks ago, in a post at his Empirical SCOTUS blog, Adam Feldman broke down the first four telephonic arguments and compared them to the four most recent traditional arguments. Yesterday, Feldman further developed this analysis in a post on SCOTUSblog; it is the first in a three-part series. One of Feldman's conclusions is that the new format "offers an interesting lens into potential improvements for oral arguments moving forward": according to his analysis, the more structured, centrally governed format led to broader participation by the justices, afforded the justices greater chances to interact with counsel, and gave advocates better opportunities to respond to questions. In earlier work, Feldman and Rebecca Gill of the University of Nevada Las Vegas suggested that the Court do what suddenly sounds familiar: (1) have the Chief Justice exercise more control over who asks what and when, and (2) have justices ask questions seriatim, by seniority. Among the possible benefits of a more structured, moderated conversation: fewer interruptions of women justices, a phenomenon that Feldman & Gill carefully analyze and that's the subject of fantastic work by Jacobi and Dylan Schweers

And that brings us to the work of Leah Litman. Yesterday, Professor Litman posted her analysis of the telephonic arguments. Among the many interesting strands she identifies: at least in this tiny dataset, gendered (and ideological) interruptions appear to persist when the Chief, like Jean-Claude Van Damme, plays time cop. Although Chief Justice Roberts generally enforced time limits on justices' questioning period by interrupting advocates, Litman tallies 11 instances in which he interrupted a justice. Nine were of women. The Chief cut off Justice Sotomayor six times and Justice Ginsburg three. (He also cut off Justice Breyer twice. My normal reaction to this would be, like, who wouldn't, given that Justice Breyer's questions tend to go on a bit. But, as Litman and Feldman both note,  Breyer spoke relatively little in the telephonic arguments.) It looked like this:

Screenshot 2020-05-20 11.44.10

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Screenshot 2020-05-20 11.52.40

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Screenshot 2020-05-20 11.52.40

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There's much more in the piece and much of interest in Professor Litman's data. 

May 20, 2020 in Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, May 8, 2020

Appellate Advocacy Blog Weekly Roundup Friday, May 8, 2020

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

US Supreme Court Opinions and News

  • This week, the Supreme Court resumed oral argument but, for the first time, it heard argument via telephone and allowed the public real-time access. Some of the many reports include those from The Washington Post, NPR, NBC News, and The Associated Press.  Find the first telephonic oral argument here in U.S. Patent and Trademark Office v. Booking.com B.V.   Because argument was held via telephone, Justice Ginsberg, who was hospitalized this week, was able to participate in oral argument on Wednesday from her hospital bed.  See reports from CNN, BBC, and USA Today.
  • The Supreme Court overturned the fraud convictions of the public officials in New Jersey’s "Bridgegate" scandal. The Court confirmed that the public officials did in fact realign toll lanes in New Jersey to cause traffic problems to “punish the mayor of Fort Lee for refusing to support the New Jersey Governor’s reelection bid.” However, because the officials did not obtain money or property, the Court unanimously held that these actions were not criminal under federal law. See the opinion and reports from CNN, Politico, and The Atlantic

  • The Court dismissed a Second Amendment challenge to a New York City gun ordinance. Instead of ruling on the merits, the Court determined that the challenge was moot because New York has repealed the ordinance. See reports from The Wall Street Journal, The Associated Press, Reuters, and The New York Times.  

  • The Court ruled that insurances companies are entitled to collect under the Affordable Care Act. The Court held that the government was obligated to honor the promise to protect insurance companies against the risks they took in participating in the exchanges established by Act.  See the opinion and reports in The New York Times, The Washington Times, The Associated Press, and Bloomberg News.

Federal Appellate Court Opinions and News

  • The Tenth Circuit upheld the federal bump-stock ban against a challenge arguing that the executive branch had no authority to issue the ban. The court rejected this argument, accepting instead the ATF determination “that semiautomatic rifles equipped with bump stocks are ‘machineguns.’” The court found the statutory definition of “machinegun” to be ambiguous and the ATF’s interpretation to be reasonable, thus upholding the ban. See the opinion and reports from The Associate Press and Bloomberg Law

  • The Seventh Circuit sided with Chicago in a sanctuary city fight, holding that the Justice Department cannot withhold federal grants from cities that extend protections to undocumented immigrants. The ruling recognizes that “states do not forfeit all autonomy over their own police power merely by accepting federal grants” and that “the attorney general’s perception of the urgency of immigration enforcement does not corral for the executive branch the powers entrusted to the legislative branch.” See the opinion and reports from The Chicago Tribune and Reuters.

  • The Tenth Circuit upheld the lower court and struck Kansas’s voter ID law, finding its proof of citizenship requirement to be unconstitutional. Kansas argued that the law was necessary to protect against voter fraud. The court however noted the significant burden on the over 31,000 voters who had their registration applications cancelled or suspended and found that interests of the state do “not justify the burden imposed on the right to vote.” This decision binds not only Kansas but all states within the jurisdiction of the Tenth circuit, including Oklahoma, New Mexico, Colorado, Wyoming, and Utah. See opinion and reports from The New York Times,  The Courthouse News Service, and an ACLU press-release.

  • In Wisconsin, four strip clubs suing for relief related to the COVID-19 shut down have won preliminary injunction in a First Amendment case. The strip clubs claimed discrimination in violation of the First Amendment after their applications for emergency federal loans were denied due to the sexual nature of the businesses. The injunction preserves the clubs’ eligibility for small business loans. The ruling concluded that the plaintiffs would likely succeed in demonstrating that their businesses are not prurient and that the regulation violates the First Amendment. See opinion and a report in The Milwaukee Journal Sentinel.

May 8, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 5, 2020

Footnoted Citations - Ramos v. Louisiana

Justice Gorsuch’s opinion for the Court in Ramos v. Louisiana,[1] which held that Louisiana’s and Oregon’s laws allowing conviction by non-unanimous juries violated the Sixth Amendment right to a jury trial, drew much commentary. There were discussions of its holding and the lineup of the majority and minority. And on #appellatetwitter, there was much discussion of Justice Gorsuch’s decision to forego in-text citations in favor of footnoted citations in the majority opinion. Justice Gorsuch’s choice rekindled one of the many debates on style[2] that are always smoldering on #appellatetwitter.

Professor Orin Kerr (@orinkerr) seems to have reignited the #appellatetwitter debate with his tweet of April 21, 2020: “Reading Ramos, I am struck by the citation style: It’s the first Supreme Court majority opinion I recall in which all citations are in footnotes. I find that style annoying, I confess. If citations are important enough to include, put them in the text.”[3] Professor Kerr’s tweet prompted responses from judges, attorneys, other professors, and noted lexicographer Bryan Garner. The following day, Garner, a champion of footnoted citations, devoted an episode of this twitter video log Curious Mind to discussing his thoughts on why it’s better to place legal citations in footnotes.[4]

Garner co-authored Making Your Case: The Art of Persuading Judges,[5] with Justice Gorsuch’s predecessor, Justice Antonin Scalia. There, the authors debated in-text versus footnoted citations.[6] Of course, Garner argued for the use of footnoted citations;[7] Justice Scalia, “disapprove[d] this novel suggestion.”[8] So let’s review some of the pros and cons of both and then you decide which you favor.

But first, let’s take a moment to think about the work citations do in legal writing. Citations serve at least two primary purposes: they tell us how to locate the cited source and they tell the reader the importance of the cited authority, i.e., the weight of the authority.[9] The latter is important because it helps the reader evaluate the relative value of one authority as compared to another.[10] We evaluate the weight of authority by its source. Is it a primary source or secondary source? If it’s a court opinion, what court decided the case? Is it a constitutional provision, a statute, or a regulation? How recently was the case decided or the statute enacted?[11] So, whether one chooses to use in-text citations or footnoted citations, the reader must be able to evaluate the weight of the cited authority. And because appellate advocates respect and value their reader’s time, they want to make it easy for their reader to evaluate the weight of the authority.

Those, like Garner, who favor footnoted citations contend that putting citations in footnotes aids readability while still allowing the reader to evaluate the weight of authority.[12] Those who follow Garner’s approach and footnote citations would write something like, “More than forty years ago, the Court decided Abood v. Detroit Board of Education.”[13] This communicates the relative age of the case and the court that decided the case. The footnote then contains only the part of the citation that tells the reader where to locate the case. If done well, footnoted citations let the reader evaluate the weight of the cited authority without forcing the reader to read—or more likely skip over—the information that tells her where to locate the authority.

Those who favor in-text citations, like the late Justice Scalia, argue that footnoted citations bloat the text with information that could be more easily conveyed in a traditional in-text citation.[14] So the in-text citation would be something like, “In Abood v. Detroit Board of Education, 431 U.S.  209 (1977) . . . .” This conveys the same information as the example above, but now the information is all within the textual sentence.

The in-text citation crowd has one other argument that perhaps carries the day, at least for now. Legal writers and readers are traditionalists and “Judges are uncomfortable with change.”[15] Appellate advocates are unlikely to put off our judicial reader by following the tradition of in-text citation. We risk doing so if we footnote citations. This is particularly true if the writer using footnoted citations isn’t careful to include within the text the information the reader needs to evaluate the weight of authority.

Returning to Justice Gorsuch’s opinion for the Court in Ramos, it was the first majority opinion in which he footnoted the citations. And just three days after Ramos was decided, the Court released its opinion in Romag Fastners, Inc. v. Fossil, Inc.,[16] with Justice Gorsuch again writing for the majority. There he used in-text citations. So, while Justice Gorsuch rekindled the #appellatetwitter debate, perhaps he too is unsure which style to prefer.

 

[1] No. 18-5924, slip op. (U.S., April 20, 2020).

[2] Other common debates on style include whether writers should use one space or two after a terminal punctuation mark and the best font.

[3] Tweet by @orinkerr, April 21, 2020, https://twitter.com/OrinKerr/status/1252526810019004418

[4] https://twitter.com/BryanAGarner/status/1253005857035608064.

[5] Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges (2008).

[6] Id. at 132-35.

[7] Id. at 132-33.

[8] Id. at 133.

[9] Alex Z. Chew, Citation Literacy, 70 U. Ark. L. Rev. 869, 879-80 (2018).

[10] See id. at 881.

[11] Id.

[12] Scalia & Garner, supra note 5, at 132.

[13] 431 U.S. 209 (1977).

[14] Scalia & Garner, supra note 5, at  134.

[15] Id.

[16] No. 18-1233, slip op. (U.S., April 23, 2020).

May 5, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Friday, April 24, 2020

Appellate Advocacy Blog Weekly Roundup Friday, April 24, 2020

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

US Supreme Court Opinions and News

The Supreme Court issued (from home) a number of opinions this week, including:

  • Barton v. Barr: The Court affirmed the lower court’s decision holding that a US permanent resident of over 30 years was ineligible to have his deportation cancelled. The case concerned the interpretation of an immigration law that allows immigrants who were deemed “deportable” based on the commission of certain crimes to petition to have their deportation cancelled. The decision interpreted a statutory provision known as the “stop-time” provision, which requires that an immigrant can only be eligible for deportation cancellation if the immigrant has been a continuous resident for at least seven years without committing a serious crime (the crime that renders an immigrant “deportable” can apparently have been committed at any time). The issue came down to whether the “serious crime” in the stop-time provision has to be one of the “certain crimes” that renders an immigrant “deportable.”  The Court affirmed the lower court’s interpretation of the statute and ruled that the crime did not need to be one of the crimes that is listed as a deportable crime. See reports at The Jurist and Bloomberg Law.
  • County of Maui v. Hawaii Wildlife Fund: The Supreme Court broadly interpreted the “functionally equivalent” test in the Clean Water Act. The law requires a permit for a direct discharge of pollutants into federally regulated rivers and oceans or its functional equivalent. The issue was whether Maui County violated the Act by injecting wastewater underground without a permit. The Court concluded that a permit is required “if the addition of the pollutants through groundwater is the functional equivalent of a direct discharge from the point source into navigable waters” and retuned the case to the circuit court.  See reports at The Hill, The Jurist, USA Today, The Associated Press, and The National Law Review.

  • Ramos v. Louisiana: This decision affirms that non-unanimous jury verdicts for serious crimes is unconstitutional and that the requirement applies to states cases as well as federal, which overturns precedent from the 1970s. The decision affects only two states: Louisiana, where the case originated and whose recent law barring non-unanimous jury decisions only applies to verdicts from after 2018, and Oregon, the only state that still allows non-unanimous verdicts. The decision recognized that allowing convictions with non-unanimous juries was rooted in racism, noting that Louisiana had adopted the rule as a way to maintain the “supremacy of the white race” and that the Oregon law could be traced to efforts to dilute “the influence of racial, ethnic, and religious minorities” on juries. Many see this 6-3 decision (and its concurrences and dissents) on what may seem to be a straightforward issue as illuminating on the issue of the role of precedent in future cases. See some of the many reports at The Los Angeles Times, The Wall Street Journal, The Associated Press, Reuters, and the New York Times from Adam Liptak and Linda Greenhouse.
  • Ramos is also noteworthy (especially for legal writers) as being possibly the first Supreme Court decision to have footnoted all citations (there have been dissents that have previously footnoted citations). See Twitter discussion on both sides of that debate here and here.

Other opinions issued this week can be found here: Thryv, Inc. v. Click-To-Call Technologies, LP; Atlantic Richfield Co. v. Christian; and Romag Fasteners, Inc. v. Fossil, Inc.

Federal Appellate Court Opinions and News

  • The Sixth Circuit ruled that “the Constitution provides a fundamental right to a basic minimum education,” which it defined as an education that “plausibly provides access to literacy.” This decision allows students in Detroit’s public schools to go forward with their claims that they have been denied access to literacy. Though the Supreme Court has discussed this issue, it has never decided it. See opinion and reports at The ABA Journal, The Detroit Free Press, and The National Review,  and see a 2018 New Yorker article on the issue.

  • In Tennessee, a US District Court has blocked the state’s order prohibiting procedural abortions during COVID-19.  The opinion recognizes that “[d]elaying a woman's access to abortion even by a matter of days can result in her having to undergo a lengthier and more complex procedure that involves progressively greater health risks, or can result in her losing the right to obtain an abortion altogether.”  See report in The Tennessean, The Associate Press, and CNN.  But in Arkansas and Texas this week, state bans have been upheld or reinstated. In Arkansas, the Eight Circuit dissolved a judge’s restraining order that had allowed surgical abortions to continue after the AR department of health told clinics to stop performing procedures unless needed to protect the life or health of the mother.  See opinion and reports at The Associate Press, The Jurist, and Law360. And, in Texas, the Fifth Circuit has reinstated most of Texas’s abortion ban, ruling that medication abortions (those induced with pills) may also be restricted, but only as applied to those who would reach Texas’s 22-week gestational limit for a legal abortion while the ban was in place. This ruling comes less than a week after it had allowed them to continue.  See opinion and reports from Fort Worth Star-Telegram, Reuters, The Hill, and Bloomberg.

  • In the face of a Second Amendment challenge, the Fifth Circuit confirmed the validity of a statute that prohibits the possession of a firearm by a person who is subject to a restarting order due to a conviction for domestic violence.  See opinion.

Appellate Practice Tips

A recent Texas Appellate Law Podcast this week covered tips for using an iPad as appellate lawyer with guest Jeff Richardson, whose blog is iPhone J.D. Thanks, Jeff for the email!

April 24, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)