Appellate Advocacy Blog

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

Monday, March 30, 2020

Clear is Kind When It Comes to Scheduling During a Pandemic

Tomorrow is the last day of March, and if internet memes are to be believed, this month has felt a lot longer than its 31 days. It certainly has for me. At the beginning of March, I was still teaching classes in-person, still eating out, still thinking we would be finishing our semester in-person. Some Supreme Court advocates thought they would argue before the Court; litigants thought their cases would be heard. COVID-19 appeared only a distant threat.

As Spring Break at my University stretched on, we were on a rollercoaster (as many of you were, too), not knowing if we were coming back after Spring Break, then an extension on Spring Break, then online teaching until April 3rd, and then finally we received word that we would be teaching online for the rest of the semester. While it has all been challenging, I have felt my anxieties lessen as I have more of a concrete sense of what work will look like, even as COVID-19 has become a growing, terrible reality. Knowing that we will be staying home and working remotely for an extended period of time has given me an ability to focus, which was elusive in the middle of the month when everything was up in the air.

Seeing this headline today on CNN, “Spring cases in limbo without Supreme Court guidance on arguments during pandemic” gave me real empathy for the litigants and attorneys whose cases are in limbo. While the Supreme Court issued another order on March 19, 2020, lengthening deadlines for filing petitions and stating that motions for extensions would be granted as a matter of course, these “modifications to the Court’s Rules and practices do not apply to cases in which certiorari has been granted or a direct appeal or original action has been set for argument.” Some cases are still scheduled for arguments in late April, despite President Trump’s extension of the social distancing orders though the end of April. Additionally, there have been no announced plans for when the already-cancelled oral arguments from March will be held. Some are criticizing the Court’s unwillingness to adopt new technology, as many other courts are doing, in order to hear some of the important cases scheduled. Perhaps this pandemic will be what shifts some of the Court’s traditions, but there has been no indication of that so far.

I’m a fan of the Brené Brown idea that “clear is kind, unclear is unkind,” and in times of uncertainty it is especially true. We know leaders do not have all the answers, but our institutions, including the Supreme Court, need to make and publish clear guidance on how that institution will function. Over-communicate in a time of crisis. More guidance and clarity from the Court will allow litigants, attorneys, and the entire country to adjust as quickly as possible, just as we are all adjusting to staying at home.


March 30, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Friday, March 27, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 27, 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 ruled that states can eliminate the insanity defense for accused criminals who suffer from mental illness. The ruling upholds a Kansas law that prevents defendants from arguing that diminished mental capacity impaired their ability to understand right from wrong. The court rejected the claim that the law was unconstitutional.  See the opinion and report from the Wall Street Journal, Reuters, Hill, NPR, and APNews.

  • The Supreme Court ruled that states may not be sued for copyright infringement. Specifically, the Court held that the Copyright Remedy Clarification Act was an unconstitutional abrogation of state sovereign immunity. The ruling prohibited an underwater videographer’s suing North Carolina for using his copyrighted videos of a submerged ship used by Blackbeard. See the opinion and reports from NPR, Reuters, Bloomberg, ArsTechnica, and National Law Review.

  • The Supreme Court unanimously ruled that a lower court used the wrong legal standard in a racial discrimination lawsuit. The Court ruled that, for his discrimination case to survive, media mogul Byron Allen must show that race was the determining reason that Comcast refused to carry his channels and sent the case back to the Ninth Circuit for reconsideration. Legal experts and civil rights groups warned that the Comcast victory could make it more difficult to bring racial discrimination cases by setting a high bar. See the opinion and reports from Reuters, Bloomberg, CNBC, and The Hill.    

    The three decisions were issued remotely this week. See reports on the three decisions from The New York Times, the Washington Post, and the Wall Street Journal.

Federal Appellate Court Opinions and News:

  • The Second Circuit affirmed the ruling that the president’s practice of blocking critics from his Twitter account violates the First Amendment. The court will not rehear the case despite a request from the Justice Department. See the ruling and reports from The Washington Post, Politico, The Washington Times, The Associate Press, and CNN.

  • The First Circuit upheld a ruling that the Justice Department cannot compel cities to comply with federal immigration authorities as a condition of receiving federal grants. The cities of Providence and Central Falls had sued the Department of Justice for requiring that recipients of a federal criminal-justice grant cooperate with authorities in the enforcement of federal immigration law. The ruling states that the statutory formula outlining how the grant can be allocated “simply does not allow the DOJ to impose by brute force conditions on [such] grants to further its own unrelated law enforcement priorities.“ See the ruling and reports from Bloomberg and Providence Journal.

COVID-19 and the Courts

  • More courts are holding virtual oral arguments and some are making those arguments available online.  For example, see the Eleventh Circuit’s announcement, the Ninth Circuit’s announcement, the DC Circuit’s announcement, and the Second Circuit’s announcement.
  • New York has issued a wide-ranging order suspending statutes of limitation.  The  executive order temporarily suspended statutes of limitations, service, and other legal time periods through April 19, 2020.

  • Montana Supreme Court Chief Justice has asked state judges to release nonviolent inmates to protect against the spread of Covid-19. See report.

Advocacy tips

Tips from practitioners on telephonic oral argument:

March 27, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Tuesday, March 17, 2020

Supreme Court Argument Postponement amid Pandemic


Yesterday, the Supreme Court postponed two weeks of Oral Arguments, releasing this statement:

In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances.

The Court will hold its regularly scheduled Conference on Friday, March 20. Some Justices may participate remotely by telephone. The Court will issue its regularly scheduled Order List on Monday, March 23 at 9:30 a.m. The list will be posted on the Court’s Website at that time: https://www.supremecourt.gov/orders/ordersofthecourt/19.

The Building will continue to be open for official business, and filing deadlines are not extended under Rule 30.1. The Court is expanding remote working capabilities to reduce the number of employees in the Building, consistent with public health guidance. The Building will remain closed to the public until further notice.

The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.

****************************************************************************

As has been well-documented, those older than 60 are at greater risk of serious complications and death from COVID-19. Currently, 7 of 9 justices are over 60. Two justices, Ruth Bader Ginsberg and Stephen Breyer, are over 80. Some are already calling for an increase in technological solutions, rather than just postponing to later live hearings.

There are significant numbers of other court closures and scheduling changes happening around the country. As every day brings new announcements, it’s a rapidly changing situation.

March 17, 2020 in Appellate Advocacy, Appellate Justice, United States Supreme Court | Permalink | Comments (0)

Monday, March 16, 2020

Quarantine, Coronavirus, and the Constitution

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Eugene Volokh over at the Volokh Conspiracy recently posted a blog sharing the expertise of law professor and M.P.H. Ed Richards on the issue of the constitution and coronavirus quarantine measures. Professor Richards notes that drastic public health measures were the rule of the day during our republic's early years, and that there is a strong originalist argument in favor of public health concerns trumping certain individual constitutional concerns.

As Richards noted:

Colonial boards of health may have been the first administrative agencies in the US. They exercised Draconian powers that were rooted in English law. The English statutory and common law recognized the right of the state to quarantine and limit the movement of plague carriers. Blackstone observed that disobeying quarantine orders merited severe punishments, including death. The argument of counsel in Smith v. Turner, 48 U.S. 283, 340-41 (1849) described measures to control a yellow fever outbreak in Philadelphia:

 

For ten years prior, the yellow-fever had raged almost annually in the city, and annual laws were passed to resist it. The wit of man was exhausted, but in vain. Never did the pestilence rage more violently than in the summer of 1798. The State was in despair. The rising hopes of the metropolis began to fade. The opinion was gaining ground, that the cause of this annual disease was indigenous, and that all precautions against its importation were useless. But the leading spirits of that day were unwilling to give up the city without a final desperate effort. The havoc in the summer of 1798 is represented as terrific. The whole country was roused. A cordon sanitaire was thrown around the city. Governor Mifflin of Pennsylvania proclaimed a non- intercourse between New York and Philadelphia.

 

These powers are classic police powers, exercised by the states. While they were not at direct issue in Smith, the power to quarantine ships was upheld against commerce clause and foreign affairs challenges in Morgan's Steamship Co. v. Louisiana Board of Health (1886). The power to establish cordons sanitaire was upheld in Compagnie Francaise de Navigation a Vapeur v. Board of Health of State of Louisiana (1902). The right of the state to require vaccination was upheld in Jacobson v. Massachusetts (1905).

As Richards goes on to comment, while the breadth of power the government can exercise is broad, it must be exercised with wisdom. The yellow-fever quarantine, for instance, we now know to be counterproductive: the disease is spread by mosquitoes, and quarantine only kept people in harm's way.

Most governmental limitations on gatherings and the imposition of involuntary quarantine have been, and likely will continue to be, local. The federal government's power to quarantine comes primarily from the Commerce Clause, as well as a statute passed pursuant to the power granted by that clause, 42 U.S.C. § 264. This statute is restricted to the quarantine of people at a certain stage of infection who either cross state lines, or are likely to come into contact with those who will cross state lines.

Local and state governments, however, have no such restrictions on their police power over local conditions regarding health and safety. For a listing of each state's statutory power to quarantine, see this website. As you can see, each state takes a different approach and violations carry different penalties, all of which may be tested under both state and federal constitutional challenges.

Due process challenges may be raised, as they have in the past, in response to the deprivation of liberty interests. Exactly what standard would be applied to these challenges is an interesting question. In Addington v. Texas, 441 U.S. 418 (1979), the Supreme Court dealt with an analogous issue - the involuntary confinement of persons with mental illness to state asylums. Noting that "[t]his Court repeatedly has recognized that civil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection," the court went on to discuss what standard was necessary in such cases. Id. at 425.

In order to protect competing interests of the State and its wards, the Supreme Court concluded that something more than "preponderance of the evidence" was necessary, but that the "reasonable doubt" standard used in criminal cases was too high. The Court thus held that a "clear and convincing standard" was the constitutional floor for commitment cases. See Id. at 430-33.

It is not entirely clear that the Addington standard would apply to infectious disease quarantine. There would be an argument for a lower standard, given the urgent and emergent nature of the current situation as compared to the usually measured and individual determination of mental illness. But Addington does give those who are curious some reading into the balancing interests at issue in crafting that standard.

Under Addington and other authorities, what must be proven by this "clear and convincing evidence" is not just that the person to be confined was mentally ill, but also that they presented a threat to themselves and others. It is likely that similar proof would be required for quarantine - that the person has been exposed to the virus, and that they present a risk to themselves or others if not confined. See Michael R. Ulrich, et al., Quarantine and the Federal Role in Epidemics, 71 SMU L. Rev. 391 (2018).

This analysis not purely academic. Some of those under voluntary quarantine have already broken their confinement and been placed into involuntary quarantine. More will likely have to be place there. And if conditions continue to deteriorate, the full extent of the federal governments power under 42 U.S.C. § 264 may be tested.

Hopefully, the "curve will flatten" soon thanks to voluntary compliance. If not, local and federal governments have powerful tools available to intercede, limited only by constitutional principles with application that is currently ill-defined.

(image attribution: Attack on the Quarantine establishment [Staten Island, N.Y.] on September 1, 1858, appearing in Harper's Weekly, Sept. 11, 1858).

March 16, 2020 in Current Affairs, United States Supreme Court | Permalink | Comments (0)

Friday, March 13, 2020

Appellate Advocacy Blog Weekly Roundup Friday, March 13, 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 will hear a case from Mississippi that looks at the constitutional limits of sentencing juvenile offenders to life in prison without parole, specifically whether it is a constitutional violation to impose the sentence absent a finding that the defendant is incapable of rehabilitation. See report from the Hill and the NY Times.

  • This week, the Supreme Court granted an emergency request to lift a Ninth Circuit block on an administration immigration policy. The ruling leaves in place the policy that requires thousands of people seeking asylum to wait in Mexico while their claims are adjudicated. See Reuters report.

  • A recent study from Yale looks at the practice of the Supreme Court that gives the solicitor general oral argument time as a “friend of the court.”  The study looks at the history of the practice and its effect on the adversarial process.  See the study and a report in the NY Times.

Federal Appellate Court Opinions and News:

  • The US District Court for the District of Columbia upheld the lower court and held that the Justice Department must release the secret grand jury evidence lawmakers are seeking in the ongoing investigations into the president. See the opinion and a sampling of the reports from the Washington Post, the NY Times, Bloomberg, the Hill.

  • The Ninth Circuit ruled in favor of Led Zepplin in the appeal of a copyright suit claiming the ever-popular “Stairway to Heaven” copied a song by the band Spirit. The en banc opinion of the 11-judge panel affirmed the jury decision that the songs were not substantially similar. The court also took “the opportunity to reject the inverse ratio rule, under which [the Court has] permitted a lower standard of proof of substantial similarity where there is a high degree of access.” The Court ruled that this “formulation is at odds with the copyright statute and we overrule our cases to the contrary.” Some claim that this may be a “precedent-setting win for musical acts accused of plagiarism.” AP News. See a sampling of the many reports here: Rolling Stone, the LA Times, the NY Times, Reuters, Bloomberg, Law.com’s site “The Recorder” (subscription), the Wall Street Journal (subscription).

  • The US District Court for the District of Columbia determined that it lacked the expertise to evaluate a Guantánamo Bay prisoner to determine whether he qualifies for medical repatriation in consideration of his writ for habeas corpus. Instead, in a first for federal courts, the Court ordered a mixed medical panel of American and foreign physicians to evaluate the mental health of the prisoner, Mohammed al-Qahtani, a Saudi Arabian man held at Guantánamo for more than 18 years. See the ruling and reports from the NY Times, the Washington Post (subscription), and the ABA Journal.

COVID-19 and the Courts

COVID-19 is, of course, affecting court operations. Many courts are closing or restricting public access. The Supreme Court has closed its doors to the public as of March 12; the closure will not extend case filing deadlines under Supreme Court Rule 30.1.  For general information about other court closures and restriction, Law360 has an updating list of closures and restricts here. For specific courts, see individual court websites, many of which include statements specific to COVID-19 procedures.

March 13, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, March 8, 2020

Oral Argument Recap: June Medical Services, LLC v. Russo

On March 4, the United States Supreme Court heard oral argument in June Medical Services, LLC v. Russo, an important case concerning the states’ ability to regulate abortion providers and access to abortion services. Specifically, the Court will decide the constitutionality of a law in Louisiana that requires abortion providers to obtain hospital admitting privileges at a hospital within thirty miles of where the providers perform abortions.

By way of brief background, in Roe v. Wade, the Court held that the Fourteenth Amendment’s right to privacy, which the Court recognized in Griswold v. Connecticut (and other cases), encompassed a right to abortion.[1] In so holding, the Court established a trimester framework. Under this framework, laws restricting access to abortions during the first trimester were presumptively unconstitutional. During the second trimester, states could only regulate abortion to protect a woman’s health and, in the third trimester, states were generally permitted to prohibit abortions, except to save or preserve the life of the mother. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court upheld Roe but rejected the trimester framework. In so doing, the Court adopted an “undue burden” test. Under this standard, the constitutionality of laws regulating abortion depends on whether such laws unduly burden a woman’s right to access abortion services. After Planned Parenthood, several states enacted legislation to regulate and, arguably, restrict abortion access, and the Court, applying the undue burden standard, addressed the validity of these laws on a case-by-case basis. As a result, the nature and scope of the right to abortion remains unresolved.

The Court’s decision in June Medical Services will be among the most significant in the Court’s abortion jurisprudence. To begin with, the Court’s decision will clarify the precedential value of Whole Women’s Health v. Hellerstadt, where the Court invalidated – by a 5-4 margin – a nearly identical law in Texas.[2] In Hellerstadt, the Court held that the law in question conferred no material benefit on women and would likely lead to the closure of several abortion clinics, thus constituting an undue burden on the right to obtain abortion services. Additionally, the Court’s decision will likely impact the states’ ability to restrict abortion access in future cases and may clarify the scope of the right to abortion. Third, although not likely, the Court may adopt a new or, at least, modified standard by which to assess the constitutionality of laws regulating abortion, particularly because the “undue burden” standard has arguably been difficult to interpret and apply with any degree of consistency or predictability.

At oral argument, the justices appeared divided.[3]

Justice Samuel Alito raised the issue of third-party standing and questioned whether physicians who provided abortions could challenge the law on behalf of women. Specifically, Justice Alito appeared concerned that the physicians’ interests (i.e., avoiding unnecessary or burdensome regulations) conflicted with the interests of women seeking abortion services (i.e., safety and continuity of care). The majority of justices, however, did not appear to find this argument persuasive.

Chief Justice Roberts focused primarily on whether the benefits (and burdens) of laws requiring admitting privileges for abortion providers may differ on a state-by-state basis. Justice Brett Kavanaugh also questioned whether these laws would be considered constitutional if abortion providers could easily obtain admitting privileges at a nearby hospital. Roberts’s and Kavanaugh’s questions suggested that the Court may be considering whether these laws are facially constitutional or whether their constitutionality depends on the facts of each case.

Justice Ruth Bader Ginsburg, along with Justices Sonya Sotomayor, Stephen Breyer, and Elena Kagan, appeared skeptical of the law. For example, Justice Ginsburg questioned the utility of requiring that abortion providers obtain admitting privileges within thirty miles of where abortion serves are provided. As Justice Ginsburg stated, since the relatively small number of women who experience complications from medical or surgical abortions go to a hospital nearest to their residence, which almost always outside of the thirty-mile radius, the admitting privileges requirement arguably served no legitimate purpose.

Justice Sotomayor questioned whether, given the various requirements for obtaining admitting privileges at Louisiana’s hospitals, abortion providers could realistically obtain such privileges. For example, one factor is whether the physician has admitted a sufficient number of patients to the hospital to which the physician is applying. Given the fact that women rarely experience complications from abortions and thus are not admitted to a nearby hospital, abortion providers would not, in most instances, meet this requirement. This and other questions suggested that the law in Louisiana, like the law in Texas, reflected an attempt to restrict or even prohibit abortions, rather than to safeguard women’s health. The attorneys for Louisiana disagreed, arguing that most of the physicians who challenged the law had not made reasonable attempts to obtain admitting privileges and thus could not reasonably claim that they were unable to obtain such privileges.

Justice Breyer also questioned whether the Fifth Circuit Court of Appeal’s decision to overturn a portion of the district court’s factual findings satisfied the “clearly erroneous standard.”

And Justice Kagan appeared skeptical of the argument that the law served a “credentialing purpose,” particularly because hospitals could deny admitting privileges to a physician based on factors having no relationship to the quality of that physician.

Ultimately, Justice Breyer expressed a concern that has arguably plagued the Court’s abortion jurisprudence: the difficulty in adopting a reliable, predictable, and workable rule.

I understand there are good arguments on both sides. Indeed, in the country people have very strong feelings and a lot of people morally think it’s wrong and a lot of people morally think the opposite is wrong. And in Casey, and the later cases, I think personally the Court is struggling with the problem of what kind of rule of law do you have in a country that contains both sorts of people.[4]

Based on the oral argument, the Court’s decision in June Medical Services is difficult to predict. The difficulty of applying the nebulous “undue burden” standard, the politically divisive nature of this issue, principles of stare decisis, and concerns for the Court’s institutional legitimacy may certainly influence one or more of the justices.

Notwithstanding, based on oral argument, it seems that the Court may decide June Medical Services by a 5-4 vote, and if the Court invalidates the law, the most likely scenario would involve Chief Justice Roberts joining Justices Ginsburg, Kagan, Sotomayor, and Breyer in the majority. However, it is uncertain how Justices Neil Gorsuch and Brett Kavanaugh will vote, or how the majority decision will be written. It appears unlikely that the Court will simply overturn Whole Women’s Health; rather, if the Court upholds the law, it will likely do so by distinguishing Whole Women’s Health on the facts. The problem is that, if the Court chooses this option, it will fail to effectively guide lower courts and lawmakers, thus inviting additional litigation in the future. As such, the Court may hold that laws requiring abortion providers to obtain admitting privileges are facially unconstitutional because, regardless of the state in which such laws are enacted, they confer no benefit to women.

[1] 410 U.S. 113 (1973); see also Griswold v. Connecticut, 381 U.S. 479 (1965).

[2] 579 U.S.             ; 136 S. Ct. 2292 (2016).

[3] See June Medical Services, LLC v. Russo, Transcript of Oral Argument (March 4, 2020), available at: https://www.supremecourt.gov/oral_arguments/argument_transcripts/2019/18-1323_d18e.pdf.

[4] Id. at 61:24 to 62:9.

March 8, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Sunday, March 1, 2020

The Friendship Between Justices Antonin Scalia and Ruth Bader Ginsburg – A Lesson in Professionalism, Civility, and Respect for Diverse Viewpoints

Justices Antonin Scalia and Ruth Bader Ginsberg were, as Justice Ginsburg stated, “best buddies.”[1]

Some might find their friendship surprising. After all, Justices Scalia and Ginsburg embraced very different views regarding constitutional theory and interpretation. Justice Scalia was an originalist and thus believed that the Constitution’s words were fixed and should be interpreted based on what the drafters intended those words to mean.[2] Justice Ginsburg is arguably a “living constitutionalist" and believes that the Constitution’s meaning may change over time to comport with contemporary understandings and present-day realities.[3]

Not surprisingly, Justices Scalia and Ginsburg disagreed – often strenuously – in many significant and controversial decisions, such as in Lawrence v. Texas, where the Court invalidated a statute banning same-sex sodomy, Atkins v. Virginia, where the Court held that the execution of intellectually disabled defendants violated the Eighth Amendment, National Federation of Independent Investors v. Sebelius, where the Court upheld the Affordable Care Act, Obergefell v. Hodges, where the Court invalidated same-sex marriage bans, and Bush v. Gore, where the Court overturned the Florida Supreme Court’s decision ordering a statewide recount of votes cast in the Presidential election between George W. Bush and Al Gore.[4]

Despite these disagreements – and despite fundamentally different approaches to constitutional interpretation – Justices Scalia and Ginsburg were, as Justice Ginsburg stated, “best buddies.”[5] As Justice Ginsburg explained:

Toward the end of the opera Scalia/Ginsburg, tenor Scalia and soprano Ginsburg sing a duet: “We are different, we are one,” different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve. From our years together at the D.C. Circuit, we were best buddies. We disagreed now and then, but when I wrote for the Court and received a Scalia dissent, the opinion ultimately released was notably better than my initial circulation. Justice Scalia nailed all the weak spots — the “applesauce” and “argle bargle”—and gave me just what I needed to strengthen the majority opinion. He was a jurist of captivating brilliance and wit, with a rare talent to make even the most sober judge laugh. The press referred to his “energetic fervor,” “astringent intellect,” “peppery prose,” “acumen,” and “affability,” all apt descriptions. He was eminently quotable, his pungent opinions so clearly stated that his words never slipped from the reader’s grasp. Justice Scalia once described as the peak of his days on the bench an evening at the Opera Ball when he joined two Washington National Opera tenors at the piano for a medley of songs. He called it the famous Three Tenors performance. He was, indeed, a magnificent performer. It was my great good fortune to have known him as a working colleague and treasured friend.[6]

Justice Scalia was similarly complimentary of Justice Ginsburg, describing her as an “intelligent woman and a nice woman and a considerate woman — all the qualities that you like in a person.”[7] Indeed, when asked about their friendship, Justice Scalia replied: “what’s not to like?”[8]

In fact, Justices Scalia and Ginsburg “frequently dine[d] and vacation[ed] together,” and “[e]very Dec. 31, they [rang] in the new year together.”[9] As one commentator described:

They and their families spent New Year's Eve together every year. They rode together on an elephant in India (Scalia joked that Ginsburg betrayed her feminism by sitting behind him), and Scalia watched Ginsburg go parasailing in the south of France (“She's so light, you would think she would never come down. I would not do that”).[10]

Ultimately, Justices Scalia and Ginsburg demonstrate that it’s ok to disagree – even strenuously – on various issues and still be friends. After all, people come from different backgrounds and experiences. They see the world differently and have different perspectives. This doesn’t mean that one person’s viewpoint is more ‘right’ than another’s. It simply means, as Justices Scalia and Ginsburg sang in a duet, “[w]e are different, [but] we are one.”[11]

Lawyers and law students should remember the example set by Justices Scalia and Ginsberg. Put simply, “[t]hey weren't friends despite their divergent interpretations of the Constitution … [t]hey were friends, in part, because of it.”[12]

[1] Pete Williams and Elisha Fieldstadt, Justice Ruth Bader Ginsburg on Justice Antonin Scalia: We Were Best Buddies’ (Feb. 2016), available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

[2] See Lawrence B. Solum, Originalism Versus Living Constitutionalism: The Conceptual Structure of the Great Debate, 113 Nw. U. L. Rev. 1243 (2019); see also Justices Ginsburg and Scalia, A Perfect Match Except for Their Views on the Law (Feb. 2015), available at: https://www.npr.org/sections/thetwo-way/2015/02/13/386085342/justice-ginsberg-admits-to-being-tipsy-during-state-of-the-union-nap

[3] See id.

[4] 539 U.S. 558 (2003); 536 U.S. 304 (2002); 567 U.S. 519 (2012); 135 S. Ct. 2584 (2015); 531 U.S. 98 (2000).

[5] Williams supra note 1, available at: https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (emphasis added).

 [6] Id. (emphasis added).

[7] Joan Biskupic, Scalia, Ginsburg Strike a Balance (Dec. 2007) available at: https://abcnews.go.com/TheLaw/story?id=4053142&page=1

[8] Ariane de Vogue, Scalia-Ginsburg Friendship Bridged Opposing Ideologies (Feb. 2016), available at: https://www.cnn.com/2016/02/14/politics/antonin-scalia-ruth-bader-ginsburg-friends/index.html

[9] David G. Savage, From the Archives: BFFs Ruth Bader Ginsburg and Antonin Scalia agree to disagree (June 2015), available at: https://www.latimes.com/local/lanow/la-na-court-odd-couple-20150622-story.html (brackets added).

[10] Dara Lind, Read Justice Ginsburg’s Moving Tribute to her “Best Buddy” Justice Scalia (Feb. 2016), https://www.vox.com/2016/2/14/10990156/scalia-ginsburg-friends.

[11] Williams and Fieldstadt, supra note 1, available at:  https://www.nbcnews.com/news/us-news/justice-ruth-bader-ginsburg-justice-antonin-scalia-we-were-best-n518671 (brackets added).

[12] Sasha Zients, Justice Scalia's Son: Washington Can Learn From Dad's 'Rich Friendship' with RBG (Aug. 2018), available at: https://www.cnn.com/2018/08/23/politics/scalia-son-rbg-podcast-cnntv/index.html (emphasis added).

March 1, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 25, 2020

The Importance of Opinions on Denial of Certiorari

The Supreme Court of the United States is a court of discretionary review, meaning it has no obligation to take up a case for decision, but rather is vested with the discretion to decide when it will exercise its authority. It is commonly accepted wisdom that the denial of a request for such consideration (a petition for writ of certiorari) is thus a non-event. It does not mean that the Court approves of the decision, but rather simply that not enough justices on the Court (it takes four) considered the matter appropriate for review.

Indeed, Justice Frankfurter noted in his comments on the denial of certiorari in Maryland v. Baltimore Radio Show, Inc., that "[T]his Court has rigorously insisted that. . . a denial [of a petition for writ of certiorari] carries with no implication whatever regarding the Court's views on the merits of a case which it has declined to review." 338 U.S. 912, 919 (1950) (Frankfurter, J., respecting denial of certiorari).

However, if that is the case, why do the Justices on the Court so frequently issue opinions when a certiorari is denied? This question came to mind yesterday, when the Court issued, among its other orders, three opinions concurring or dissenting on denial of certiorari. A review of those opinions illustrates why the Justices are increasingly giving insight into "non-events."

First, Justice Sotomayor issued a "statement respecting the denial of certiorari" in Reed v. Texas, a case involving a murder conviction that has involved no less than nine state habeas petitions over more than twenty years. In commenting on the denial of certiorari, Justice Sotomayor notes that Texas law will require the state courts considering pending habeas relief to consider Reed's innocence on the merits for the first time, and that the denial of certiorari in no way implies anything about the high court's opinions on those pending actions. Sotomayor ends, however, by noting that, in her view, "there is no escaping the pall of uncertainty over Reed's conviction," and that she remains "hopeful that available state processes will take care to ensure full and fair consideration of Reed's innocence - and will not allow the most permanent of consequences to weigh on the Nation's conscience while Reed's conviction remains so mired in doubt." Reed v. Texas, 589 U.S. ___ (2020) (Sotomayor, J., respecting denial of certiorari).

Next, Justice Alito, joined by Justices Thomas and Gorsuch, issued a concurring opinion on the denial of certiorari in Patterson v. Walgreen Co. That case involved the meaning of Title VII's prohibition of employment discrimination "because of . . . religion." The Court requested briefing from the Solicitor General, and Justice Alito goes into detail as to which portions of the briefing he agrees with. Specifically, Justice Alito seems to lay out reasons why Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977) should be reversed, using some of the factors commonly identified as being necessary to reverse prior precedent in his analysis. While Alito agrees that Patterson was the wrong vehicle to raise these issues, he gives a roadmap for the next case that is more appropriate. Patterson v. Walgreen Co., 589 U.S. ___ (2020) (Alito, J., concurring on denial of certiorari).

Finally, Justice Thomas issued an opinion dissenting from the denial of certiorari in Baldwin v. United States. This case involves Chevron deference, the general rule that courts must adopt an agency's interpretation of an ambiguous statute so long as that interpretation is "reasonable." Usually, this interpretation occurs prior to a court's ruling. In National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 982 (2005), Thomas authored an opinion holding that this deference even applies if a court has interpreted the statute before the agency, so long as the court has not also held that the statute is unambiguous.

Baldwin sought reconsideration of Brand X. Over his eleven-page analysis, Thomas sets out why he thinks Brand X should be revisited, noting that "it is never too late to surrender former views to a better considered position." His criticism of both Chevron and his opinion in Brand X includes an analysis of the proper separation of powers, the checking power of the Judiciary, the APA, and "accepted principles of statutory interpretation from the first century of the Republic." Baldwin v. United States, 589 U.S. ___ (2020) (Thomas, J., dissenting from denial of certiorari).

Each one of these opinions, while entirely non-binding, are remarkable. Justice Sotomayor issued a clear "I am watching you" signal to the lower courts on a conviction that she implies cannot, in good conscious, support a death penalty. Three justices laid out a roadmap for arguments to overturn a prior Supreme Court decision that is relied upon by numerous other decisions. And the author of a fairly recent decision invited petitions to overturn that case and its underpinnings in Chevron.

These denials of certiorari are not "non-events." Rather, they clarify the need to include these opinions in your research and analysis. In doing so, you may very well find a roadmap to your next successful petition, and any case that may eventually involve these issues.

 

February 25, 2020 in Appellate Advocacy, United States Supreme Court | Permalink | Comments (0)

Tuesday, February 18, 2020

Reasonable Sources on Appeal

Many of the legal standards courts apply to appellate issues resolve around the inevitably fuzzy concept of reasonableness. The reasonable person, reasonable expectations of privacy, reasonable observers, reasonably prudent consumers, reasonable suspicion—all of these tests require advocates to conjure some ideal of what reasonable people might do or think in a given factual scenario. And for most advocates, that standard can seem hopelessly inchoate.

One problem is determining the sources of a “reasonable” standard. Consider the determination of when a person has been “seized” for Fourth Amendment purposes,  and thus the point at which officers must have a requisite level of suspicion to support that seizure. The touchstone test, established in United States v. Mendenhall, 446 U.S. 544, 554 (1980), suggests that officers have seized an individual when, “in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” The test leaves unanswered whose opinions count in determining what a reasonable person might believe. Does the test measure what a police officer thinks it reasonable for an average citizen to believe—as it seemingly must if the test is to have any utility guiding day-to-day police activity? Or does the test focus upon what the average citizen believes? If the latter, must the test look to the reasonable beliefs of “average citizens” at the highest level of abstraction, or can it take into account the specific characteristics of the defendant, such as race?

The latter question arose recently in the South Carolina Supreme Court’s decision in State v. Spears, No. 27945 (S.C.), where the Court asked at oral argument whether the black defendant’s race should affect the Court’s evaluation of when a reasonable person no longer felt free to leave and was thus seized by police. The South Carolina Supreme Court noted the Mendenhall court’s view, echoed later by the Seventh Circuit, that although the defendant’s race is “not irrelevant,” it is also not dispositive.[1] The Court also carefully noted the Tenth Circuit’s recent suggestion that race is not a relevant factor in the reasonable person test; that court argued that a racial factor would render the test impossibly complex for officers in the field given the “divergent attitudes towards law enforcement” within racial groups.[2] The South Carolina Supreme Court was able to sidestep the issue by finding it unpreserved due to the defendant’s failure to raise it below. But the issue continues to percolate in other State Supreme Courts.[3]

This argument has echoes in broader theories behind the interpretation of legal texts. Originalist accounts of constitutional interpretation, for instance, set their sights on constraining judicial discretion by assuring that would-be activist judges rule according to the law rather than their policy preferences. But the proper sources for originalist interpretation remain unclear. Are the pre-enactment writings of the text’s authors relevant as part of a narrower effort to find the original intent behind the document? What about dictionaries or legal treatises available before (or after) enactment that might shed light upon the popularly understood meanings of a text? And should the interpretive methods taken today echo the interpretive methods that the lawyers or judges of the time of the enactment might have relied upon?

Neither the narrower question of interpreting a specific issue of reasonable beliefs, nor the broader question of interpreting the relevant sources of original intent or meaning, has a clear answer that makes appellate advocates’ jobs easy. But advocates should not resign themselves to guesswork. Definite answers may be impossible in either project. Yet the effort to use all available methods to guide decision-makers can still lend clarity to an apparently insoluble legal inquiry.  Though it is hard to say who has the better of the arguments about the sources and scope of inquiry, it may nonetheless be an argument worth having. Appellate advocates should strive to understand the problems of source in the fuzzy standards they may need to deploy in advocacy, then do their best to resolve the problems by choosing sources in a logical, up-front manner. Those with the most candid and convincing accounts are likely to find success on appeal.

 

[1] United States v. Mendenhall, 446 U.S. 544, 558 (1980); United States v. Smith, 794 F.3d 681, 688 (7th Cir. 2015).

[2] United States v. Easley, 911 F.3d 1074, 1082 (10th Cir. 2018), cert. denied, 2019 WL 1886117 (U.S. Apr. 29, 2019).

[3] See, e.g., Commonwealth v. Evelyn, No. SJC-12808 (Mass.).

February 18, 2020 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Moot Court, Oral Argument, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, February 16, 2020

Resolving the Tension Between Religious Liberty and Equality

In Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission, the Court confronted the issue of whether the Free Exercise Clause of the First Amendment permits a business owner to refuse service to individuals – in violation of a state anti-discrimination statute – if providing such service would violate the business owner’s religious beliefs.[1] By way of background, the Petitioner, a small business owner in Colorado, refused to bake a wedding cake for a same-sex couple because doing so would have violated the business owner’s religious beliefs.[2] The Respondent, Colorado Civil Rights Commission, later held that the business owner’s refusal to serve the same-sex couple violated Colorado’s anti-discrimination law. In so holding, the Commission rejected the Petitioner’s religious liberty claim.

Unquestionably, Masterpiece Cakeshop Ltd. implicated the tension between liberty (i.e., permitting individuals to freely exercise their religious beliefs) and equality (i.e., the statutory and, in some situations, constitutional right to freedom from discrimination), and underscored the difficulty in balancing these competing interests. Indeed, how should this tension be resolved and what standard or criteria should be adopted to guide lower courts in future cases?

In its decision, the Court did not answer these questions. Instead, the Court issued a narrow decision in which it held that the Colorado Civil Rights Commission’s decision was procedurally unfair because the Commission displayed impermissible hostility toward religion during the hearing.[3] Thus, the underlying legal issue remains unresolved, although it will likely only be a matter of time before the Court again confronts this question.

The purpose of the Free Exercise Clause, and the Court’s jurisprudence, has established several principles that may help to address the question presented in Masterpiece Cakeshop Ltd. and guide lower courts in future cases.[4] To begin with, a core purpose of the Free Exercise Clause is to ensure that individuals can freely exercise their religious beliefs without undue interference, and absent coercion or fear of reprisal. Indeed, the right to religious freedom is essential to safeguarding individual liberty. As Justice Sandra Day O’Connor stated in City of Boerne v. Flores, “[g]iven centrality of freedom of speech and religion to the American concept of personal liberty, it is altogether reasonable to conclude that both should be treated with the highest degree of respect.”[5]

Importantly, however, the right to religious freedom is not absolute. In limited circumstances, laws infringing on religious liberty will be upheld if they further compelling government interests, are narrowly tailored, and constitute the least restrictive means of achieving the stated interests.[6] The Court’s jurisprudence has established several principles that clarify the extent to which the government may restrict religious liberty.

First, the Court distinguishes between religious beliefs and practices, the latter of which is subject to restriction. As the Court held in Reynolds v. United States, “[l]aws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.”[7]

Second, any law that coerces individuals into acting contrary to their beliefs violates the Free Exercise Clause. In Lyng v. Northwest Indian Cemetery Protective Ass’n, the Court emphasized that states “may make it more difficult to practice certain religions,” provide that state laws “have no tendency to coerce individuals into acting contrary to their religious beliefs do.”[8]

Third, states may not enact laws that target specific religions or religious practices. For example, in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Court invalidated a law banning the ritual sacrifice of animals because the record indicated that the law was aimed at suppressing core aspects of a worship service conducted by the Santeria religion.[9] As Justice Anthony Kennedy explained, states “may not devise mechanisms, overt or disguised, designed to persecute or oppress a religion or its practices.”[10]

Fourth, and perhaps most significantly, in Employment Division v. Smith, the Court held that generally applicable laws do not violate the Free Exercise Clause if they only incidentally burden religious practices.[11] Writing for the majority, Justice Antonin Scalia stated that “[i]t is a permissible reading of the text … to say that if prohibiting the exercise of religion … is not the object … but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended.”[12] The Court’s holding in Smith overruled its prior decision in Sherbert v. Verner, where the Court held that individuals may seek exemptions from laws that infringe on their religious freedom.[13]

In response to Smith, Congress enacted the Religious Freedom Restoration Act, which states that any law resulting in a “substantial burden” on religious practices violates the Free Exercise Clause unless it furthers a compelling governmental interest and is the least restrictive means to achieve that interest.[14] However, in City of Boerne, the Court held that the Act does not apply to the states.[15] Thus, in Masterpiece Cakeshop, the Act was not relevant to the Court’s decision.

Ultimately, it is difficult to predict how the Court will rule when, in all likelihood, it is confronted with this or a very similar issue in the future. In Masterpiece Cakeshop Ltd., Justice Kennedy suggested that “while … religious and philosophical objections are protected … such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations law.”[16] However, Justice Kennedy retired from the Court in 2018 and it is by no means certain that his replacement, Justice Brett Kavanaugh, or the majority of justices, would agree with this proposition.

If the Court does decide this issue in the future, Smith will be highly relevant. Specifically, the justices will likely address whether Smith should be overruled or modified. If the justices decline to overrule Smith, they will probably consider whether the law at issue only incidentally burdens religious liberty or is sufficiently burdensome that it violates the Free Exercise Clause. Additionally, the Court will likely examine whether the law coerces individuals into violating their religious beliefs or impermissibly targets specific religious practices.

As stated above, it is difficult to predict how the Court will rule. Whatever the result, the Court will hopefully adopt a workable standard that clarifies the appropriate balance between liberty and equality, and that effectively guides lower courts, thus avoiding confusion regarding how these interests are balanced in future cases. However, given the fact-specific nature of cases in this area, the Court’s desire to maintain institutional legitimacy, and its understandable reticence to issue broad and sweeping decisions, the Court will most likely issue a narrow ruling that leaves to the lower courts the task of clarifying and developing the law in future cases.

[1] 138 S. Ct. 1719 (2017).

[2] See id.

[3] See id. (Specifically, the Court highlighted the following language as evidence of the Commission’s hostility toward religion: “Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the Holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others”). 

[4] U.S. Const., Amend. I (providing in relevant part that “Congress shall make no law … prohibiting the free exercise [of] religion”).

[5] 521 U.S. 507, 564-65 (1997).

[6] See id. at 555 (O’Connor, J., dissenting) (“[T]he right to free exercise was viewed as generally superior to ordinary legislation, to be overridden only when necessary to secure important government purposes”).

[7] 98 U.S. 145, 166 (1878).

[8] 485 U.S. 439 (1988).

[9] 508 U.S. 520 (1993).

[10] Id. at 547.

[11] 494 U.S. 872 (1990).

[12] Id. at 878.

[13] 374 U.S. 398 (1963).

[14] 42 U.S.C. § 2000bb-1(a)(2012).

[15] 521 U.S. 507.

[16] 138 S. Ct. 1719 (2017).

February 16, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Friday, February 14, 2020

Appellate Advocacy Blog Weekly Roundup Friday, February 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:

  • Texas has petitioned the Supreme Court to declare a California interstate travel-ban unconstitutional. The travel ban prohibits state-funded travel to states that fail to provide sufficient protections for LGBTQ people. Texas was added to the list of banned states in 2017 because of a Texas law allowing foster care agencies to use sincerely held religious beliefs as a basis to deny placements to gay couples. Texas argues that the ban violates the Dormant Commerce Clause, the Privileges and Immunities Clause, and the Equal Protection Clause. See the State of Texas filing. Reports are available from The Texas Tribune and Fox News and by Josh Blackman at The Volokh Conspiracy.

  • The Supreme Court issued a memorandum formalizing some previously unwritten procedural  rules.  This memorandum discusses rules on scheduling private conferences and deadlines for petitions for certiorari.  Bloomberg Law has this report on the memorandum.  

  • Adam Feldman has posted “About this Term: OT 2019” at his Empirical SCOTUS blog.

  • In Supreme Court historical news, Christopher Brooks wrote an online essay about the first black man allowed to argue before the Supreme Court. And the Harvard Law School Library has released some of the papers of Justice Antonin Scalia. Harvard Law Today reported here.

Federal Appellate Court Opinions and News:

  • The Court of Appeals for the DC Circuit threw out the emoluments claim against the president brought by 215 members of Congress. The DC Circuit applied Supreme Court precedent from House of Delegates v. Bethune-Hill (2019) and Raines v. Byrd (1997), holding that “’individual members’ of the Congress ‘lack standing to assert the institutional interests of a legislature.’” The order reversed a lower court holding that the members had standing. The order is here. The many reports on this ruling include those from The New York Times , The Washington Post, The Wall Street Journal, The Hill, and Politico.  

  • The Third Circuit ruled in favor of Philadelphia, finding that the city can prohibit an employer's asking an applicant about salary history. The ruling was welcomed by wage-equity proponents, who claim the law could reduce gender- and race-based wage discrimination.  See reports from the National Law Review and the Philadelphia Inquirer and an essay about the equal pay implications by Professor Joanna L. Grossman. The ruling is here.

  • After ruling that Arizona’s “ballot harvesting” law discriminates against minority voters (see The Weekly Round Up, January 31), the Ninth Circuit granted Arizona’s request to stay the ruling so that Arizona may seek Supreme Court review. The stay means that the law will remain in effect at least through the presidential primary in March. See report in the Arizona Daily Star and AP News.  

  • The Ninth Circuit upheld the dismissal of a lawsuit that argued that an Oregon school district policy violated the Constitution and civil rights law by allowing a transgender student to use bathrooms and locker rooms that match their gender identity. The court found that the policy did not violate the rights to cisgender students or their parents and dismissed the case. See reports from KATU News, Bloomberg (subscription required), and the ACLU.  The ruling is here.

  • Brooklyn Federal Judge Jack Weinstein, the longest-serving federal judge in the country, has retired after a 53-year career.  See The New York Daily News report.

 

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

Tuesday, February 11, 2020

SCOTUS Clarifies Cert-Stage Procedures

The Supreme Court of the United States recently issued new guidelines to help practitioners understand its procedures (internal and otherwise) during the certiorari stage. While the guidelines do not appear to change established practice, they do help practitioners understand how the Court operates during this stage.

The guidelines clarify when a response is required and when it should be filed, along with how and when a motion to extend time to file a response may be filed. They also address how a waiver of the right to respond may be filed, and when a reply should be filed.

The last point has confused some practitioners. There is no deadline to file a reply on petition for certiorari. However, if the reply is filed before distribution to chambers, then it is included in the preliminary packet. There is an advantage to getting that "last word" in front of the Court from the beginning of their review.

To help understand the timing, the guidelines go on to describe when petitions are scheduled for conference. This timing depends on both certain case events and the type of case ("paid" versus in forma pauperis), so if you do have a case on petition, take the time to read the guideline so you can understand exactly when it will be set for conference, and then key your deadlines off that analysis.

These guidelines appear to be part of an ongoing process by the Supreme Court to help new or infrequent practitioners understand a system that can be a bit of black box, starting with guidelines on amicus briefing issued last October. Hopefully that process will continue.

 

February 11, 2020 in Appellate Practice, Appellate Procedure, United States Supreme Court | Permalink | Comments (0)

Saturday, February 1, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 31, 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 granted, without much explanation, the petition to stay an injunction that had prevented the implementation of the Justice Department’s income-based restrictions on immigration. The ruling allows the administration, in the consideration of green card applications, to base decisions on whether the applicant is likely to need public assistance, including public benefits like Medicaid, food stamps, and housing vouchers. The bulk of the opinion is Justice Gorsuch’s concurrence, which focuses on “[t]he real problem here” described as “the increasingly common practice of trial courts ordering relief that transcends the cases before them.” See reports in New York Times, Washington Post, and Associated Press.

  • A documentary on Clarence Thomas is being screened across the country this month. “Created Equal: Clarence Thomas in His Own Words” is reviewed and discussed in The Washington Post and The National Review. A trailer is available on YouTube.

Federal Appellate Court Opinions and News:

  • The Ninth Circuit ruled this week that Arizona’s “ballet harvesting” law discriminates against minority voters. The court reversed a lower court’s findings in favor of Arizona on all counts and stated that Arizona’s laws “have a discriminatory impact on American Indian, Hispanic, and African American voters in Arizona” and that the laws were “enacted with discriminatory intent.” See decision here. See reports by The Arizona Republic, The Associate Press, The Hill, and Bloomberg Law

  • Also from the Ninth Circuit, the court will permit the malicious prosecution suit against Fairbanks, Alaska, by the four men who spent eighteen years in prison for a murder they didn’t commit. The convictions of the “Fairbanks 4” were thrown out when another man confessed to the murder.  See the Courthouse News Service report and the opinion

  • The Eighth Circuit upheld an injunction blocking an Arkansas campaign contribution law. The court ruled that the law, which prohibits contributions to a campaign until two years before election day, is likely unconstitutional.  The decision is here. See reports from Bloomberg Law (requires subscription) and the Arkansas Democrat-Gazette.

  • The DC Circuit reversed the dismissal of a First Amendment challenge to “FOSTA,” an anti-sex trafficking bill. The dismissal was based on subject-matter jurisdiction, finding that the petitioners lacked standing.  The DC Circuit decision reversed and remanded, finding that at least two petitioners had established standing. See article here.  

  • A Sixth Circuit ruling will permit an expelled med-school student to sue for defamation. The student alleges that her professor fabricated a test-cheating story after she rebuffed his advances. See decision and report from Bloomberg Law.

Appellate Practice Advice

A recent Twitter question prompted a thread providing advice for appellate advocacy “newbies.” The thread included a link to a useful 2016 post by Steven Klepper on building an appellate practice.

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

Monday, January 20, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 17, 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.

Apologies for the late MLK day weekend post! 

US Supreme Court Opinions and News:

  • The Supreme Court has ordered quick briefing on the Obamacare challenge after nineteen states asked for a quick decision. Recently, the Fifth Circuit held that the individual mandate is unconstitutional but remanded the issue of severability, thus leaving the law in place for now. See report from The Hill and NBC.

  • The court has also agreed to hear (1) an administration appeal seeking to enforce federal law that would allow employers to get a religious exemption from the Obamacare requirement that health insurance cover a woman’s birth control (see report) and (2) a dispute involving whether Electoral College electors can break their pledges and support the popular vote winner (see report).

  • The Court refused to hear an appeal from three “Free the Nipple” activists after a New Hampshire city fined them for exposing their breasts in public. The appeal argued that banning female but not male toplessness is unconstitutional discrimination based on gender; the Supreme Court’s refusal to hear the case leaves the ban in place. See reports in NYPost, The Hill, and NYTimes

Federal Appellate Court Opinions and News:

  • The Seventh Circuit affirmed (after nearly 3 years) the lower court decision that required Indiana to list on birth certificates both mothers in same-sex marriages. The court held that after Supreme Court cases Obergefell v. Hodges and Pavan v. Smith, “a state cannot presume that a husband is the father of a child born in wedlock, while denying an equivalent presumption to parents in same-sex marriages.” See decision at 7-8. The court ruled that the Indiana Code did just that and ruled that its operation was properly enjoined.  See reports from the Indiana Lawyer, BloombergLaw, and Slate.

  • The Eleventh Circuit upheld ex-US Representative Corrine Brown’s fraud conviction. The court rejected the argument that the trial court wrongfully removed a juror who claimed guidance from the “holy spirit” as to Brown’s innocence.  See the opinion and Florida Times-Union report.

  • The Fourth Circuit upheld an injunction barring the discharge of HIV-positive service members. The decision calls the rationale for not deploying HIV-positive service members “outmoded and at odds with current science.” See opinion and reports in The Washington Post and the AP.

  • Finally, the Fifth Circuit made headlines after a divided panel denied a trans-inmate’s request for the court to use female pronouns. See opinion and dissent (begins p. 12) and report from Washington Blade.

State Court news

The San Diego Superior Court tentatively awarded nearly $13 million to twenty-two women in a suit arguing that the women were exploited by porn producers.  The ruling holds that the women had been tricked into performing in pornographic videos and found the owners of the adult website liable for fraud and breach of contract.  See report in NYTimes, San Diego Union-Tribune, and RollingStone.

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

Sunday, January 19, 2020

Ramos v. Louisiana: Do the Sixth and Fourteenth Amendments Require Unanimous Jury Verdicts?

In Ramos v. Louisiana, the United States Supreme Court will decide whether the Sixth Amendment requires unanimous jury verdicts. Specifically, in Ramos, by a vote of 10-2, a jury in state court convicted the defendant of murder. Currently, in criminal cases, only Oregon and Louisiana permit criminal convictions where the jury is non-unanimous. In both jurisdictions, a vote of 10-2 is sufficient to convict a defendant.[1]

The answer to the question presented in Ramos depends in substantial part on the text and purpose of the Sixth Amendment, relevant legal doctrine, and the Court’s precedent.

By way of background, the Sixth Amendment provides in relevant part that “[i]n all criminal prosecutions, the accused shall enjoy the right to a … public trial, by an impartial jury of the state and district wherein the crime shall have been committed.”[2] Additionally, under the incorporation doctrine, the Court has held that the Sixth Amendment’s right to a trial by an impartial jury, like most provisions in the Bill of Rights, applies to the states.[3]

Over the last several decades, the Court has clarified the nature and scope of the Sixth Amendment’s jury requirement. In Williams v. Florida, for example, the Court held that the Sixth Amendment permits six-member juries in criminal cases.[4] Subsequently, in Ballew v. Georgia, the Court held that juries cannot consist of less than six jurors.[5] Perhaps most importantly, in Apodaca v. Oregon, the Court held that, while the Sixth Amendment requires unanimous jury verdicts in federal cases, it does not require unanimous jury verdicts in state cases.[6] The Court’s decision in Apodaca is arguably anomalous because, when a provision in the Bill of Rights is incorporated against the states, the general rule is that the standards established at the federal level (e.g., unanimous jury verdicts) also apply to the states. In Ramos, the Court will confront this issue – and the continuing validity of Apodaca – when deciding whether jury verdicts at the state level must be unanimous.

Several considerations will be relevant to the Court’s decisions. Advocates of a unanimous jury requirement will likely argue that the Founders expected – and the English common law demonstrated – that the Sixth Amendment’s right to impartial jury encompassed a unanimity requirement. Additionally, relying on the historical record, advocates may assert that racial animus motivated Louisiana’s and Oregon’s adoption of a non-unanimous jury requirement.[7]

Conversely, opponents of a unanimous jury requirement may argue that the Sixth Amendment’s text is silent regarding the issue of unanimous jury verdicts, thus leaving this determination to the states. Furthermore, principles of stare decisis support upholding Apodaca and thus giving states the authority to determine whether to adopt a unanimity requirement for jury verdicts.

The Court’s decision is difficult to predict. On one hand, the Court may be sensitive to the argument that non-unanimous jury verdicts silence the voices of dissenting jurors and result in fundamentally unfair convictions, particularly against traditionally marginalized groups. Also, the Court may determine that a unanimity requirement is essential to ensuring the right to a fair trial. Indeed, empirical evidence has demonstrated that such a requirement “strengthens deliberations, ensures more accurate outcomes, fosters greater consideration of minority viewpoints, and boosts confidence in verdicts and the justice system.”[8]

On the other hand, the Court may be reluctant, under the doctrine of stare decisis, to overturn Apodaca, particularly because at least two states have relied on Apodaca to adopt laws permitting non-unanimous jury verdicts. Moreover, the Court may be concerned regarding the implications of adopting a categorical rule requiring unanimous jury verdicts in criminal cases (at least for felonies). For example, what if a state decides to increase the number of jurors from twelve to eighteen? Would a vote of 17-1 in favor of a conviction violate the Sixth Amendment? What if a state law provided that a non-unanimous jury verdict of 11-1 was sufficient to convict a defendant? The Court will likely have to address these and other questions when deciding this case.

Ultimately, Ramos will likely be decided by a 5-4 or 6-3 margin and based on oral argument, it appears that the Court is leaning toward interpreting the Sixth Amendment to require unanimous jury verdicts.

 

[1] Robert Black, Ramos v. Louisiana: Does the 14th Amendment Require Unanimous Jury Verdicts? (Oct. 9, 2019) available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts.

[2] U.S. Const., Amend. VI.

[3] See Duncan v. Louisiana, 391 U.S. 145 (1968).

[4] 399 U.S. 78 (1970).

[5] 435 U.S. 223 (1978).

[6] 406 U.S. 404 (1972).

[7] Black, supra note 1, available at: https://constitutioncenter.org/blog/ramos-v-louisiana-does-the-14th-amendment-require-unanimous-jury-verdicts

[8] Constitutional Accountability Center, Ramos v. Louisiana, available at: https://www.theusconstitution.org/litigation/ramos-v-louisiana/.

January 19, 2020 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Tuesday, January 14, 2020

Settled Precedent or Doctrinal Dinosaur? Handling Stare Decisis.

Extinct bird

Last year was a rough year for the doctrine of stare decisis, the rule that prior precedent should be followed in subsequent similar cases. In 2018, in Janus v. American Federation of State, County and Municipal Employees, Justice Alito quoted from Payne v. Tennessee, a 1991 Rehnquist opinion, reasoning that stare decisis as important because it "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process. Thus, although stare decisis is not an "inexorable command," past precedent should not be overturned without "strong grounds" for doing so. These grounds included an analysis of the quality of the reasoning, the workability of the rule established, its consistency with related decisions, developments since the rule was handed down, and subsequent reliance on the decision.

In his May 2019 majority opinion in Franchise Tax Board v. Hyatt, Justice Thomas concluded, after analyzing four of these factors, that the first three justified overruling prior precedent. In reaction, Justice Breyer noted in his dissent that believing that a case was wrongly decided cannot justify "scrapping settled precedent."  Instead, according to Breyer, since the dissent in the prior precedent had considered the majority decision to be wrongly decided, but still "plausible," overruling a decision that is not "obviously wrong" simply because the majority now agrees with the prior dissent is "obviously wrong."

The next month, Justice Kagan, writing for the majority in Kisor v. Wilkie, again quoted from Payne regarding the importance of stare decisis, and argued that any departure from the doctrine must be supported by some "special justification" beyond the argument that the prior case was wrongly decided. Finding that the precedent at issue was not "unworkable" or a "doctrinal dinosaur," the majority refused to overturn it. Justice Gorsuch, writing a concurring opinion, seemed to reject Kagan's strict approach, instead returning to the Janus factors created by Alito and suggesting that such factors should permit the overturning of precedent when it "no longer withstands careful analysis."

This back-and-forth battle involves more than just a disagreement over the legal standard for overturning precedent. There are political and social subcontexts that are being flagged in these cases. But that is a subject for a different blog. What I am concerned with is what a practitioner, after all of this sparring, is supposed to do with adverse authority now.

First, it should go without saying that you can't ignore adverse authority. ABA Model Rule3.3(a)(2) states that “a lawyer shall not knowingly … fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.” Even if you think you can distinguish the authority, or that it is a dead doctrine, you must deal with it.

Second, be sure that you are actually dealing with precedent that is directly applicable to your case. If the authority is distinguishable, you don't need to directly attack it. Just show why the decision does not dictate a result in your case. As Justice Frankfurter wrote, "If a precedent involving a black horse is applied to a case involving a white horse, we are not excited. If it were an elephant or an animal ferae naturae or a chose in action, then we would venture into thought. The difference might make a difference." Reid v. Covert, 354 U.S. 1, 50 (1957) (Frankfurter, concurring). Explain why your differences dictate a different outcome.

Third, when you do have to discuss applicable adverse authority,and you cannot distinguish it, use the structure applied by both sides of the debate whenever possible. Both sides of the debate in the Court give lip service to the idea that stare decisis is not a rigid doctrine. One side seems to focus on whether the prior decision is unworkable or out-of-touch with current law, while the other prefers the multifactoral approach under Janus. Using both approaches therefore seems to be the best bet - quote and use the Janus factors, but focus on why the prior case has become unworkable or is out-of-touch with current law.

Fourth, enlist aid when showing why the prior case is unworkable. Surveys of former Supreme Court Clerks indicate that they find amicus briefs particularly helpful when dealing with complex issues beyond their experience. See Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & Pol. 33 (Winter 2004). If a doctrine has had an unworkable impact in a particular field, then briefing from amicus in that field may be necessary to get across the point. Consider soliciting that briefing at an early stage, as well as setting out the issue even in intermediate appellate courts.

Fifth, and finally, know your enemy. Understand the underpinnings and history of your adverse authority, so you can help the Court understand how some of those underpinnings may have changed over time. This will require extensive research, but if the Court is going to require "special justification" to change the adverse authority, it will require special effort on your part to explain and justify that departure. This may require some legal digging, but if you can show, at the end, that the adverse case is really a dinosaur, all that digging is worth it.

Thanks goes to appellate lawyer Scott Rothenberg's paper, "Prevailing in the Face of Adverse 'White Horse" Authority" for inspiring this post.

(image credit: Dinornis Elephantopus, Roger Fenton c1854 (Digital image courtesy of the Getty's Open Content Program)).

 

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

Friday, January 3, 2020

Appellate Advocacy Blog Weekly Roundup Friday, January 3, 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 New Year!  Wishing the readers of the Appellate Advocacy Blog (and everyone else!) a happy and healthy 2020!

 

Looking for what to watch in your practice area in 2020?  On January 1, Law360’s Appellate News posted a series of what to watch in 2020 in various practice areas. Check it out on the Jan 1 postings here.

US Supreme Court Opinions and News:

  • Chief Justice Robert’s 2019 Year-End report on the Federal Judiciary was published Tuesday. Find it here.  In it, he calls on his judicial colleagues to “each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.”

  • The Hill’s John Kruzel and Harper Neidig posted a report on the 2020 Supreme Court cases to watch. Find it here.

  • The Supreme Court will hear arguments this year in a First Amendment free exercise of religion case concerning the use of public funds in religious schools. The appeal from Montana will ask the court to consider “whether states are free to erect a wall between church and state high enough to exclude religious groups from some state benefits.” See Adam Liptak’s report in the New York Times.
  • Court will also hear a decades-long legal battle over water between Florida and Georgia.  Listen to (or read the transcript of) the NPR report here

Federal Appellate Court Opinions and News:

  • The Second Circuit has raised privacy questions over the government’s warrantless searches of NSA surveillance data.  Although recognizing that the gathering of data is lawful, the court questions the searching of that data, characterizing it as more like under a “general warrant.”  The court wonders, “[i]f such a vast body of information is simply stored in a database, available for review … solely on the speculative possibility that evidence of interest to agents investigating a particular individual might be found there, the program begins to look more like a dragnet, and less like an individual officer going to the evidence locker to check out a previously-acquired piece of evidence against some newfound insight.”  See order and reports from Reuters and Washington Post.

  • The Appeals Court for the DC District upheld the designation of Northeast Canyons and Seamounts National Monument, a national monument off the coast of New England.  Fishing groups had objected to the monument because it restricted their fishing area. See ruling here and reports by Maine Public Radio and Cape Cod Times.

  • The Second Circuit ordered resentencing for a “shockingly low” 17-year sentence for an ISIS supporter who attempted to kill an FBI agent.  See reports from NYT, Washington Post, the AP, and Reuters.

  • Finally, the Ninth Circuit has ruled that the label “diet” on a soft drink is not a promise to help you lose weight or keep it under control. The Court refused to allow fraud claims (by the same plaintiff) against both Diet Coke and Diet Dr. Pepper. According to the Dr. Pepper decision,  “[t]he prevalent understanding of the term in (the marketplace) is that the ‘diet’ version of a soft drink has fewer calories than its ‘regular’ counterpart.” However, “[j]ust because some consumers may unreasonably interpret the term differently does not render the use of ‘diet’ in a soda’s brand name false or deceptive,” the court ruled.

Other Appellate News

The NAAG announced the winners of Winners of 2019 Supreme Court Best Brief Awards. Check out the list here

 

January 3, 2020 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Friday, December 20, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 20, 2019

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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.

A short post this penultimate week of 2019, crafted between grading final papers and sharing the winter break with family. 

US Supreme Court Opinions and News:

  • The Supreme Court won’t hear the challenge to the Kentucky abortion ultrasound law. The law requires women seeking abortions be given ultrasounds and requires doctors to describe the ultrasounds to the women. Doctors argued that the law violated the First Amendment. The decision leaves the law in place. See reports from NYT, Washington Post, and AP.
  • As a follow-up to the previous posts following this issue: the Supreme Court refused the Justice Department’s request to stay the DC District Court order that blocked four federal executions.  The Court recognized that “it would be preferable for the District Court’s decision to be reviewed on the merits by the Court of Appeals for the District of Columbia Circuit before the executions are carried out.” See order here.
  • The Court also will not hear the appeal of the Ninth Circuit decision protecting the homeless who sleep on sidewalks, leaving that protection in place. As this column noted previously, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.  The Ninth Circuit noted that “just as the state may not criminalize the state of being homeless in public places, the state may not criminalize conduct that is an unavoidable consequence of being homeless — namely sitting, lying, or sleeping on the streets.” See reports from Washington Post and Reuters.

Federal Appellate Court Opinions and News:

  • This week, the Fifth Circuit ruled on the constitutionality of the Affordable Care Act, holding that the individual mandate is unconstitutional but remanding the issue of severability; thus leaving the law intact for now.  See reports from CNBC, Washington Post, and NYT.
  • The Second Circuit ruled last week that, in limited circumstances, landlords can be liable for one tenant’s racial harassment of another tenant. The decision holds that, under the Fair Housing Act, landlords can be liable if they fail to address tenant-on-tenant race discrimination in the building.  See report from AP and Court House News.
  • The Court of Appeals for the DC Circuit rules that the FDA can regulate e-cigarettes just like conventional cigarettes in this December 10 decision.  The decision recognizes that e-cigarettes are “indisputably highly addictive and pose health risks, especially to youth, that are not well understood.” See Washington Post report here.
  • According to the District Court for District of Utah, American Samoans are citizens at birth, not non-citizen nationals. See order and CNN coverage.

December 20, 2019 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, December 6, 2019

Appellate Advocacy Blog Weekly Roundup Friday, December 6, 2019

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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:

  • A few weeks ago, this column noted that four federal executions had been stayed, effectively blocking the recent Justice Department decision to resume federal executions. This week, after an emergency bid to a federal appeals court was rejected, the Justice Department asked the Supreme Court to reverse that stay. The request asks that the executions be allowed to continue early next week.  See more from CNN and Reuters.
  • After the Second Circuit refused to block the House of Representative’s subpoena for Donald Trump’s financial records, the President has petitioned the Supreme Court to void the subpoena. APNews. The Second Circuit ruling finds the House Committee’s “interests in pursuing their constitutional legislative function is a far more significant public interest than whatever public interest inheres in avoiding the risk of a Chief Executive’s distraction." Order at page 105.
  • This week, the Supreme Court heard argument on the Second Amendment in New York State Rifle and Pistol Association v. City of New York, the first major gun-related case before them in nearly a decade. The case centers on NYC gun ownership laws, which limited the ability to take a licensed firearm out of the home. However, the laws have since been amended, removing the contested restrictions. Thus, one of the more pertinent questions before the court is whether the case is moot.  See NYT OpEd here.
  • The Court is considering an appeal about whether the US Constitution gives homeless people the right to sleep on the sidewalk. Last year, the Ninth Circuit held that it was cruel and unusual punishment for a city to “prosecut[e] people criminally for sleeping outside on public property when those people have no home or other shelter to go to.” Opinion p. 4.

Federal Appellate Court Opinions and News:

  • A recent State Department rule requiring that foreigners disclose their social media accounts when applying for a visa is the target of a new federal lawsuit. The suit raises privacy and surveillance issues and argues that the rule violates the US Constitution’s rights to free speech and association.  See NYTimes article here.
  • The Eleventh Circuit heard argument this week in a case that could set precedent on the issue of bathroom access by transgender high school students. The lower-court ruling on appeal granted the transgender petitioner access to the boy’s bathroom at his high school in Florida.  See AJC article here

State Appeals Court News

  • The Ohio Court of Appeals has overturned a zoning board refusal to allow the company “Broke Ass Phone” to use its name on a street sign.  The court ruled that the word “ass” when used in the phrase “broke ass phone” is neither obscene nor immoral and that the company had a First Amendment right to use the word.  See ABA Journal story here.

 

December 6, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, November 30, 2019

Advice for Drafting Amicus Briefs in Cases Pending Before the United States Supreme Court

The number of amicus briefs filed in cases pending before the United States Supreme Court has increased dramatically in recent years. However, the degree to which amicus briefs impact the Court’s decisions varies dramatically. Some amicus briefs are never read, while others are cited in the Court’s decisions. What is the difference between an amicus brief that garners the Court’s attention and one that is discarded and never read by any of the Court’s Justices?

1.    Good amicus briefs make original arguments.

Before drafting an amicus brief, consider that the Court receives and reviews thousands of briefs each year at the certiorari and merits stage. Given this fact, how can you convince Supreme Court law clerks, who screen amicus briefs and decide if they should be read by one or more of the Justices, that your amicus brief should be read and considered by the Court?

You must provide legal and policy arguments, or relevant data, that neither the petitioner nor respondent have presented, and that are relevant to and necessary for a fair disposition of the case. Indeed, interviews with former Supreme Court clerks revealed that, to merit consideration, an amicus brief must provide arguments or information not presented by the parties:

Nearly all clerks (83%) skimmed or looked over every amicus brief filed. However, those clerks reported spending additional time to carefully reading only those briefs that appeared to contribute new and useful information or arguments. One clerk described his personal system of screening amicus briefs as ‘separating the wheat from the chaff.’ Since clerks generally relied foremost on the merits briefs in order to prepare for cases, amicus filers needed to complement the information supplied by the parties in order to earn anything beyond cursory consideration.[1]

This makes sense. After all, why would the Court or its clerks take the time to read your brief if it presents unoriginal arguments and thus offers little, if any, value?

Accordingly, attorneys should not submit “me too” amicus briefs, which merely repeat or offer support for the arguments contained in the petitioner’s or the respondent’s briefs. The only exception to this rule is if the amicus brief’s author is a well-known and reputable attorney or organization, such as the Federalist Society, Cato Institute, or American Civil Liberties Union. In these instances, the reputation of the amicus brief’s author will lend credibility to the arguments of either the petitioner or respondent. But this is the exception, not the rule.

2.    Attract the Court’s attention at the beginning of the amicus brief.

Given that the Supreme Court’s clerks receive thousands of certiorari petitions, and that in each term the Court reads hundreds of merits briefs, be sure to capture the clerks’ attention at the beginning of your amicus brief. For example, your point headings in the table of contents should demonstrate that the arguments presented are original, relevant, and valuable to the Court. In fact, you should assume (although this may not always be the case), that the clerks will only glance at your brief to discern quickly whether it warrants consideration by the Court.

Indeed, interviews with former Supreme Court clerks confirm this fact:

To facilitate their screening, clerks relied upon a number of identifying features, such as the summary of arguments, table of contents and section headings - all required features of any amicus brief filed with the Supreme Court - to determine whether the brief could contribute anything novel.[2]

Consequently, by demonstrating your brief’s value at the earliest opportunity, you enhance the chances that it will garner the Court’s attention.

3.     Explain why you (individual or organization) are particularly well-suited to assist the Court in resolving the legal issue(s).

Be sure to explain why you possess the relevant experience and expertise necessary to assist the Court in deciding the legal issue(s) in a particular case. And if you lack such expertise, you should reconsider your decision to file an amicus brief. For example, if you are a patent or tax attorney, submitting an amicus brief in a death penalty or abortion case would likely reduce the chances that the Justices will read your amicus brief. After all, absent very compelling circumstances, why is a patent or tax attorney particular well-suited to decide, for example, if legal injection violates the Eighth Amendment to the United States Constitution? Conversely, if the American Civil Liberties Union or Cato Institute submits an amicus brief in a case involving the First Amendment, it is highly likely that both organizations’ expertise in First Amendment jurisprudence will lead the Court to review those briefs.

4.    Use social science data to support your arguments.

Often, although not always, the petitioner’s or respondent’s brief will contain legal and policy arguments that focus on the facts of the case, the record below, and the relevant precedent. Importantly, however, these briefs may not include social science data, which is valuable because it provides a factual basis (beyond the record below) for specific legal arguments and underscores the real-world impact of the Court’s decision. A majority of former Supreme Court clerks confirm the value of social science data:

Sixty-eight of the seventy clerks interviewed were asked whether they were inclined to give more or less consideration to an amicus brief containing social science data. Approximately 54% of the clerks claimed that they would be more inclined to give an amicus brief presenting social science data closer consideration.[3]

For example, in Riley v. California, which addressed the constitutionality of cellular telephone searches incident to arrest, one of the amicus briefs contained data showing that over 65% of the population used cellular telephones on a daily basis, including when operating a motor vehicle. By providing this information, the brief highlighted the fact that, if the Court permitted cell phone searches incident to arrest, its decision would impact the Fourth Amendment rights of millions of American citizens. This argument may have contributed to the Court’s decision, which by a vote of 9-0 (with one concurrence), held that such searches violated the Fourth Amendment. When citing social science data, however, be sure that the data is thoroughly documented and supported by relevant studies.

5.     Focus on specialized areas of the law.

Amicus briefs are particularly helpful in cases where the legal issues involve highly technical or complex areas of the law. Indeed, former Supreme Court clerks report that “amicus briefs were most helpful in cases involving highly technical and specialized areas of law, as well as complex statutory and regulatory cases.”[4]

Remember that the Justices, although brilliant legal scholars, are not necessarily experts in tax, patent, or copyright law. As such, where a case involves a highly technical area of the law, an amicus brief that assists the Court in understanding the underlying factual issues will be very valuable.

6.    Remember that your goal is to assist the Court in reaching a fair decision.

Amicus briefs should differ in tone and approach from merits briefs. Specifically, you should objectively and fairly assess the arguments of the parties, and provide the Court with a workable legal rule that effectively balances the competing legal arguments. In so doing, you will demonstrate to the Court that you have considered the factual, legal, and policy issues in an unbiased manner and arrived at a reasoned conclusion.

7.    Ensure that your writing is of the highest quality.

An amicus brief must be well-written and effectively organized. If your brief is poorly written, you can be sure that it will detract from the credibility of your arguments and rarely, if ever, receive the Court’s attention.

Thus, make sure that your writing is concise. Avoid including extraneous or irrelevant facts, unnecessary repetition, or over-the-top language. Address counterarguments and explain why they should not affect the outcome you support. Consider the implications of your argument (and proposed legal rule) on future cases. Explain why your argument is consistent with precedent and produces an equitable result. Adopt a professional tone and never attack the lower courts or the parties. And always follow the Court’s rules regarding the filing of amicus briefs.

Ultimately, excellent amicus briefs can provide valuable assistance to the Court and contribute to principled developments in the law. To do so, they must be well-written and thoroughly reasoned, provide an original perspective, and advocate for a workable legal rule that balances legal and practical considerations.

[1] Lynch, K. (2004). Best Friends? Supreme Court Clerks on Effective Amicus Curiae Briefs. 20 J. L. & Politics 33 (emphasis added).

[2] Id.

[3] Id.

[4] Id.

November 30, 2019 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, Legal Writing, United States Supreme Court | Permalink | Comments (0)