Appellate Advocacy Blog

As the year ends, developments at the Supreme Court – the revelations about judicial behavior that resulted in the adoption of a Code of Conduct and anticipation about what appears to be a momentous term – have dominated the world of appellate advocacy.

A few weeks ago, the New York Times published two fascinating pieces focused on the Court and its actions in Dobbs,[1] the 2022 decision that overturned Roe v. Wade.[2] One article, a revealing behind-the-scenes report on the acceptance and development of Dobbs, describes maneuvering undertaken by different justices to either accept or reject the case, including a calculation that delay will make the result more acceptable and a change of position on granting the petition. The article also covers the process of developing the opinion that leaked but remained largely intact when officially issued. The inside baseball described should interest any appellate advocate.

The second, a column by the inestimable Linda Greenhouse, discusses how Dobbs showed that the late Justice O’Connor erred in believing that judicial decisions are largely reactive and reflect an emerging social consensus. The op-ed also previews soon-to-be-published research about how the Supreme Court undermined its own reputation and authority by moving so far out of the mainstream in the same opinion. Both articles are well worth a read.

In many ways, the issues currently surrounding the Supreme Court do not have analogues among other courts, and the institutional concerns described in both pieces do not affect many of the decisions of even the Supreme Court. To be sure, some of the public’s flagging confidence and respect for the Court is a function of the ethics issues that have swirled around the Court, as well as growing public support for judicial term limits. Still, nothing dominates the public discussions like reactions to unpopular decisions.

What happens at the Supreme Court, unlike what happens in Las Vegas, does not stay there. It plainly affects the public view of the judiciary more generally. Recent surveys conducted on behalf of the National Center for State Courts show that the Supreme Court’s plunging public reputation has dragged down public confidence in all courts. The unfortunate result, though, is that discontent with the Court only fuels the current disrespect for the rule of law and our ability to function as a representative democracy at a time when democracy itself is threatened.

As officers of the court and as counsel familiar with the principles that undergird our system, we have an obligation to work to repair some of the damage done. Let’s dedicate ourselves with the approach of a new year to finding ways to restore respect and confidence in the rule of law.

[1] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

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

December 31, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Saturday, December 9, 2023

Do We Need a Supreme Court? The Case for Limited Judicial Review

The United States Supreme Court should stop deciding cases involving ambiguous constitutional provisions where reasonable people can differ regarding the meaning of those provisions. In such instances, the Court should defer to the legislature and thus only decide cases that involve clear violations of the Constitution. Otherwise, the Court – as it has done for years – will involve itself in deciding important issues that should be left to democratic choice.

When the Court decides cases where constitutional provisions are ambiguous (and subject to different interpretations), nine unelected and life-tenured judges impose law and policy on an entire nation, often based on nothing more than their policy preferences or the political affiliation of the justices’ current members. If you doubt that, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and returned to the states the question of abortion’s legality.[1] What exactly changed from Roe to Dobbs? The justices’ political affiliations and policy preferences, as Justices Brett Kavanaugh and Amy Coney Barrett (conservative jurists) replaced Justices Anthony Kennedy and Ruth Bader Ginsburg (moderate and liberal jurists, respectively). After Dobbs, it appears that constitutional meaning doesn’t mean anything at all; rather it depends on whether a majority of the Court’s members, at any given time, are liberal or conservative. That reality, which Dobbs underscored, is a recipe for undermining democracy and politicizing the Court, which undermines its institutional legitimacy. If anyone questions how political the Court has become, look no further than the Senate’s confirmation hearings, which beginning with Robert Bork have more closely resembled an episode of Jersey Shore than a meaningful discussion of a nominee’s record and character.

For these and other reasons, the Court should not decide cases (i.e., it should deny certiorari), particularly those involving important social and political issues, when the Constitution provides no clear answer to the question presented. Indeed, the Court’s track record of deciding such cases has been deeply troubling. For example, in Citizens United v. FEC, the Court, by a 5-4 margin, invalidated a statute that restricted independent expenditures by corporations, labor unions, and other entities, and was intended to limit the deleterious and corruptive effect of money in federal elections.[2] Neither the text nor the original purpose of the First Amendment provided clear guidance on the statute’s constitutionality and reasonable people could – and did – disagree on its constitutionality. Why, therefore, did the Court get involved? And why, when the Court did get involved, did it issue a decision that all but ensured that money would continue to corrupt the political process? Your guess is as good as mine.

Likewise, in Clinton v. New York, the Court held by a 6-3 margin that the Line-Item Veto Act, which gave the president the authority, subject to congressional override, to veto certain portions of spending bills.[3] The Act, which was passed on a bipartisan basis, sought to reduce wasteful government spending, and thus promote fiscal responsibility. The Court, however, invalidated the Act, holding that it violated the Constitution’s Presentment Clause, even though the Presentment Clause is so broadly worded that it could arguably be interpreted in different ways. Yet, the Court got involved and invalidated the Act, which hindered Congress’s attempt to reduce wasteful government spending. The reason, again, is anyone’s guess.

To make matters worse, in Griswold v. Connecticut, the Court invented constitutional doctrine out of thin air to invalidate a Connecticut law that banned contraception.[4] Although the law was ridiculous, there was no language in the Constitution that could support invalidating the law. Instead of deferring the legislature, however, the Court held that the Constitution’s text contained invisible “penumbras,” which give life and substance to the text, and from which the justices – and the justices alone – could create unenumerated constitutional rights. Based on this reasoning, the Court created an unenumerated right to privacy under the Fourteenth Amendment’s Due Process Clause even though the text of that clause could not possibly support creating this right. After Griswold, the Court showed no hesitation in “discovering” additional unenumerated rights in its invisible “penumbras,” such as the right to abortion in Roe, which the Court deemed, without any support in the text whatsoever, encompassed within the “right” to privacy. It should come as no surprise that Roe eventually met its demise in Dobbs; when Dobbs was decided, there were more conservative than liberal justices on the Court. That’s the problem with unwarranted judicial intervention and with creating rights out of thin air – it turns law into politics.

Additionally, in Snyder v. Phelps, the Court by an 8-1 margin held that the First Amendment permitted members of the Westboro Baptist Church to stand outside of a funeral honoring a soldier who had been killed in Iraq and hold signs stating, among other things, “God Hates Fags” and “Thank God for 9/11.”[5] As Justice Alito emphasized in his dissent, this degrading and demeaning speech had no social value whatsoever and contributed nothing to the marketplace of ideas. Furthermore, nothing in the text or the original purpose of the First Amendment compelled this result. Yet, the Court decided to intervene and reached an outcome that was as abhorrent as the speech it protected.

Similarly, in Kennedy v. Louisiana, the Court held by a 5-4 margin that imposing the death penalty on a convicted child rapist violated the Eighth Amendment’s guarantee against cruel and unusual punishment.[6] What exactly in the Eighth Amendment’s text or based on its original purpose supported this result? Absolutely nothing. But that did not stop the Court from prohibiting legislatures nationwide from authorizing a punishment that many viewed as appropriate for such a heinous crime.

And, of course, one cannot forget the Court’s holding in Students for Fair Admissions v. Harvard, where the Court, approximately forty-five years after Regents of the University of California v. Bakke was decided, suddenly discovered that affirmative action was unconstitutional.[7] Regardless of one’s views on affirmative action, it cannot be reasonably disputed that, like in Dobbs, the only reason that affirmative action met its demise was because the newest justices were appointed by a Republican president. Students for Fair Admissions also highlights the problem with “living constitutionalism”: you never know whether the Constitution will “evolve” a liberal or conservative direction.

These are just a few examples of the Court’s failure to respect the constraints on its power. At times, it appears that Chief Justice Roberts, to his credit, has been concerned about this problem. In National Federation of Independent Investors v. Sebelius, for example, Roberts provided the fifth vote to uphold critical portions of the Affordable Care Act, holding that such provisions were a valid exercise of Congress’s taxing power.[8] Now, does anyone think that Chief Justice Roberts truly believed that the Act’s individual mandate was a tax rather than a penalty? Whatever one’s answer, it was clear that Justice Roberts’ decision was predicated on a desire to protect the Court’s institutional legitimacy and for the Court not to be viewed as politically motivated in its decision-making process. Chief Justice Roberts did the right thing but went wrong when, in Shelby County v. Holder, he voted to invalidate sections of the Voting Rights Act even though the Senate had reauthorized those provisions unanimously.[9] It is precisely this type of inconsistency that undermines the very legitimacy that Roberts seeks to preserve.

Ultimately, the Court’s legitimacy depends on the public believing that the justices’ decisions are based on the Constitution’s text and free from political preference or policy predilection. When the Court intervenes to decide cases where the text is ambiguous and subject to reasonably different interpretations, it often does so, as in Dobbs and Students for Fair Admissions demonstrate, for no other reason than that the justices have the votes to invalidate a law or policy that they don’t like. That is wrong, and citizens of all political persuasions should object to a Court that reserves for itself the right to decide issues that belong to the people and democratic process.

After all, consider the justices themselves. Certainly, they are honorable and incredibly accomplished people. But they are not ordinary citizens. Most of them graduated from Ivy League law schools, grew up in upper-middle class to wealthy households, attended private high schools and elite undergraduate institutions, and enjoyed immense privilege. This does not make them bad people or warrant criticism of them, but it does not make them uniquely suited to decide for an entire country issues that matter so much to (and affect) ordinary citizens. Let the people decide. Give them a voice.

Of course, some may argue that the Court has the authority to say what the law is, particularly where there are circuit splits on important constitutional and public policy issues. That argument is not convincing. First, circuit splits are fairly common, and the Court only decides a fraction of cases where such splits are present, thus allowing many splits to persist. Second, the presence of a circuit split is not always or inherently problematic. Some courts interpret statutes and constitutional provisions differently, and this may lead to varying legal and constitutional protections based on the state or region within which you live. That fact alone does not necessarily lead to injustice or inequality. Some courts, for example, may uphold certain abortion restrictions and others may not, and some courts may hold that the death penalty is unconstitutional while other courts may not. Indeed, just look to state legislatures, where laws and the rights they confer (or restrict) differ substantially. That’s called democracy and sometimes, it’s better to be divided rather than united. People have different views and where the Constitution is silent or ambiguous, those views deserve a voice over those of nine unelected and life-tenured justices.

At the end of the day, when constitutional interpretation is nothing more than a political game, it is a game not worth playing. Without limiting judicial review, we may continue to be haunted by that ghost called “substantive due process,” or those invisible penumbras that lurk in the background, just waiting to strike when enough justices believe in their existence. And be ruled by nine unelected justices who think they can somehow divine the “evolving standards of decency that mark the progress of a maturing society.”[10]

[1] 597 U.S. 215 (2022); 410 U.S. 113 (1973).

[2] 558 U.S. 310 (2010).

[3] 524 U.S. 417 (1998).

[4] 381 U.S. 479 (1965).

[5] 562 U.S. 433 (2011).

[6] 554 U.S. 407 (2008).

[7] 600 U.S. 181 (2023); 438 U.S. 265 (1978).

[8] 567 U.S. 519 (2012).

[9] 570 U.S. 529 (2013).

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

December 9, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Monday, October 9, 2023

On Citing Law Reviews

With forty-five years of legal practice under my belt, I paused for a moment as I was working on a new brief to think about the enterprise that has been my career. My new brief covers an issue I had never encountered before in an area of law that was new to me. I certainly enjoyed getting to know the law in this area, hoping that my understanding is solid and not a misreading of the cases and historical background. And it is the opportunity to discover new things and apply my perspective to it that keeps me going.

As with any brief, this one is being written with an eye to its audience. In this case, that means the justices of the Supreme Court. I know that what may play well with one justice may be off-putting to another. Thinking about that, I recalled remarks that Justice Ginsburg once gave at the University of South Carolina.

She advised that a “brief skips long quotations, but doesn't unfairly crop the occasional quotations used to highlight key points.”[1] Every judge I know agrees with that statement. However, she made another that day, which may not be universally shared. She said, a “good brief does not shy away from citing law review commentaries or other scholarly analyses that may aid the court as much as they did the brief writer to get an overview of the area.”[2] As a former law professor, she had a natural interest in scholarly work.

However, an interest in law reviews is not universally shared by judges. Chief Justice Roberts once said that “as a general matter, law reviews are not―particularly helpful for practitioners and judges.[3] Roberts later made a similar point when he challenged judges in the Fourth Circuit to pick up a law review, where they are likely to see that the first article is likely to be an esoteric article “of great interest to the academic that wrote it, but isn’t of much help to the bar.[4]

A 2012 study of the frequency with which justices cited law review articles concluded that citations had fallen off from earlier eras and that 40 percent of the articles cited were written by people who were not full-time academics.[5]

Certainly, all articles are not of equal value. Some cover the history with precision and diligence that will help where that is at issue. Others conduct a survey of the law of various states that also provides useful fodder for a brief. However, where the law review article is more philosophical or theoretical, it may have limited value. Those quick thoughts suggest that law reviews are most helpful when they provide practical information that supports the argument you are making. When the article provides that type of information, the judge need not sit on the Supreme Court to approve of its use in a brief. Keep that in mind when the issue requires more than an analysis of a law, rule, or trial record.

[1] Hon. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S. C. L. Rev. 567, 568 (1999).

[2] Id.

[3] Quoted in Brent E. Newton, Law Review Scholarship in the Eyes of the Twenty-First-Century Supreme Court Justices: An Empirical Analysis, 4 Drexel L. Rev. 399, 399 (2012).

[4] Id. at 399 n.1.

[5] Id. at 416.

October 9, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, September 24, 2023

Impeachment Fever and the Judiciary

Every appellate advocate wants an impartial and independent judiciary, not a bench populated by people who would trim their sails to whatever political winds put them in their seat or is blowing so hard that the easier course is to let it dictate a result. Instead, we ask for a fair application of the law.

It may seem obvious that our justice system should operate that way, but political partisans often seek to bend the courts to their favor, whether through the appointment process or through elections. Even so, we hope that on the bench our judges will seek to make decisions rooted in law rather than political preference. Not everyone agrees, however.

In 2006, one stripe of political partisans operating under the banner of the South Dakota Judicial Accountability Project sought approval of a constitutional amendment that became known as “Jail for Judges.” The proposed amendment, which was defeated at the ballot box, would have allowed thirteen special grand jurors to decide that a judge’s ruling was wrong and either fine or jail the judge, as well as strip away as much as one-half of earned retirement benefits. Judicial rulings made years ago would have been subject to this process, as long as the jurist was still alive.

As extreme as that measure was, we are seeing a spate of new challenges to our courts that seek to guarantee certain results and threaten judicial independence. One that has received a great deal of attention is the threat of impeachment aimed at a newly installed Wisconsin Supreme Court justice. It has a transparently political purpose: keeping the Court’s new majority from upsetting the legislature’s redistricting handiwork. The basis for impeachment is incredibly weak. During her campaign, now-Justice Jane Protasiewicz called the gerrymandered districts “unfair” and “rigged,” while still avoiding any promise that she would rule one way or another. Republican Assembly Speaker Robin Vos accused her of “prejudging” the challenge to those districts, now before the Court, and has suggested the impeachment was a proper response if she chooses not to recuse herself.

Of course, this is not the first time an elected judge spoke to issues coming before a court. In one instance, the Washington Supreme Court considered whether one of their newly elected members was subject to discipline for his participation in an anti-abortion rally on the day of his swearing-in ceremony. At the “March for Life” rally, Sanders thanked the crowd for supporting his election and expressed “his belief in the preservation and protection of innocent human life.”[1] A judicial conduct commission found probable cause that Sanders violated several different canons of judicial conduct, but the state supreme court found that he acted within his free speech rights and his comments and actions did “not lead to a clear conclusion that he was, as a result, not impartial on the issue as it might present itself to him in his role as a judge.”[2]

In another case that reached the U.S. Supreme Court, Republican Party v. White,[3] the Republican Party and several candidates for judicial office successfully challenged a canon of judicial conduct that prohibited candidates for judicial office in Minnesota from announcing their views on disputed legal and political issues on First Amendment grounds. Justice Scalia’s opinion for the Court distinguished between “pledges or promises,” a prohibition that was not before the Court, and merely announcing ones views, which the Court said does not bind a candidate once elected.[4]

The opinion found it incongruous to permit candidates to express support for a prior judicial decision, but not criticism of it. It further noted that the prohibition related to taking positions on issues, but not expressing oneself for or against particular lawsuit parties. Thus, rather than be aimed at impartiality, which was its putative purpose, the Court found the prohibition was against expressing a view of the law upon which voters might choose to vote. As Justice O’Connor expressed in a concurrence, as long as you have judicial elections, something she disfavored, candidates, including incumbents, are going to express views on issues before the public, and that doing so was necessary to maintain public confidence in the courts.[5]

These cases suggest that the principal basis for impeachment in Wisconsin is inconsistent with established First Amendment principles. Garnering less attention, but no less problematic, is the tactic being employed in North Carolina. Justice Anita Earls, a black jurist on the state supreme court, gave an interview in which she advocated for greater diversity in the state court system, labeled the frequent interruptions of female advocates before the court an example of implicit bias, and bemoaned the termination of racial equity and implicit bias training in the judiciary. She relied on a recent study for her comments and said that diverse decision-making results in better outcomes, assures that a range of perspectives are considered, and secures greater public support because people are confident that more voices are heard.

For those remarks, the North Carolina Judicial Standards Commission began an investigation in August based on reading those remarks as accusing her judicial colleagues of “racial, gender and/or political bias.” The Commission suggested that the remarks “potentially violate[] Canon 2A of the Code of Judicial Conduct which requires a judge to conduct herself ‘at all times in a manner which promotes public confidence in the integrity and impartiality of the judiciary.’” Earls, who believes she was supporting public confidence in the judiciary, filed a federal lawsuit to enjoin the Commission from proceeding, citing First Amendment grounds and intimating that the Commission’s investigation could be used by the legislature to remove her from the bench.[6]

Early in our history, these types of attacks on judges when the political powers that be disagreed with rulings had a brief lifespan. The party of Thomas Jefferson, in control of the presidency and the Congress, was frustrated by the Federalist judicial appointees and their rulings. They tested the impeachment powers first against a New Hampshire district court judge, John Pickering, who was removed from office in 1804 upon apparently deserved accusations of habitual intoxication and insanity. Then Congress went after Justice Samuel Chase in what was generally regarded as a dry run at Chief Justice Marshall. Chase had placed himself in the sights of the new Democratic-Republican majority through partisan rants contained in his jury charges, as well as his handling of cases under the Alien and Sedition Acts. Despite holding a sufficient majority to convict in the Senate, enough party members balked at the process so that conviction fell four votes short, effectively ending the effort aimed Marshall and understood as a commitment to judicial independence that seemed strong until more recently.

As advocates, we need to recommit to first principles and denounce these new efforts to turn the judicial branch into a political football that can be manipulated to achieve what proper legal arguments cannot. While the judiciary is not immune from the ebb and flow of political opinion, it should not be reshaped by political threats based on the expression of views.

[1] Matter of Disciplinary Proceeding Against Sanders, 135 Wash. 2d 175, 178, 955 P.2d 369, 370 (1998).

[2] Id. at 768, 955 P.2d at 370.

[3] Republican Party of Minnesota v. White, 536 U.S. 765, 768 (2002).

[4] Id. at 770.

[5] Id. at 788–89 (O’Connor, J., concurring).

[6] Earls v. N.C. Jud. Stds. Comm’n, et al., Complaint, Case No. 1:23-cv-00734 (N.C. M.D., filed Aug. 29, 2023).

September 24, 2023 in Appellate Advocacy, Appellate Justice, Current Affairs, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, September 15, 2023

Appellate Advocacy Blog Weekly Roundup Friday, September 15, 2023

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 [email protected] or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at [email protected] or on Twitter @CLDLegalWriting.

US Supreme Court Opinions and News

Alabama will again appeal to the Supreme Court asking it to affirm their congressional redistricting map after its recently redrafted map was recently rejected a time because the map failed to comply with previous rulings. This June, the Supreme Court upheld a lower court's decision that rejected Alabama’s congressional redistricting map because it violated the Voting Rights Act by diluting the power of Black voters. (See coverage by Associated Press and NPR.) The map denied Black voters the reasonable chance to elect a second representative of their choice by packing a majority of Black voters into a single district and placing remaining Black voters in the six other districts. The lower court held that the legislature should redraw the map to include at least two districts where Black voters have a realistic opportunity to elect their preferred candidate. The legislature redrew the map, which also included only one district that is majority-Black voters, and the map was again rejected. (See Associated Press coverage). This time the court appointed a special master to redraw the Alabama map, taking the power away from the legislature. See complete coverage from NPR, The New York Times, and The Wall Street Journal.

Appellate Court Opinions and News

The Fifth Circuit upheld a lower court’s decision finding that the CDC violated the First Amendment when it threatened social media platforms to coerce the platforms to remove content. However, the court reversed the holding that blocked the administration’s contacting the platforms to urge them to remove content. The court held that encouragement, as opposed coercion, does not always cross the constitutional line. See the ruling and coverage by The Associated Press and The Washington Post.

State Court Opinions and News

A California state appeals court upheld a restriction on carrying guns in public that was similar to the New York restriction struck by the Supreme Court last term. The court held that the California law differs from the New York law in a way that makes it meet constitutional muster. Both laws require the gun owner to show good cause, which was the provision that the Supreme Court declared unconstitutional. The California law, however, also includes a provision that requires the owner to be of “good moral character.” The court determined that “prohibitions on concealed firearms have historically been permitted by the Second Amendment” and that are still allowed if they comply with limits imposed by the Supreme Court. See the ruling.

Of General Interest

The Federal Judicial Center shared the third edition of “A Primer on the Jurisdiction of the U.S. Courts of Appeals” by Thomas E. Baker. The primer’s purpose is described, in part, as “a brief introduction to the complexity and nuance in the subject-matter jurisdiction of the U.S. courts of appeals.”

September 15, 2023 in Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, September 2, 2023

The Optics of Ending Affirmative Action

In Students for Fair Admissions v. Harvard, the United States Supreme Court ended affirmative action in college admissions.[1] Specifically, the Court held that race-based considerations in the admissions process violated the Fourteenth Amendment’s Equal Protection Clause.[2] Writing for the majority, Chief Justice John Roberts stated that such affirmative action policies “lack sufficiently focused and measurable objectives warranting the use of race, unavoidably employ race in a negative manner, involve racial stereotyping, and lack meaningful end points.”[3] Chief Justice Roberts also interpreted the Equal Protection Clause to require that universities act "without regard to any difference of race, of color, or of nationality," and emphasized that “[e]liminating racial discrimination means eliminating all of it.”[4] This language is reminiscent of Roberts’ opinion in Parents Involved in Community Schools v. Seattle School District No. 1, where he stated that “the way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”[5]

Importantly, however, the Court did not prohibit universities from considering race in the admissions process "so long as that discussion is concretely tied to a quality of character or unique ability that the particular applicant can contribute to the university."[6] In other words, although an applicant’s race cannot, by itself, be a factor in the admissions process, it can be considered if an applicant explains, such as in a personal statement, how the applicant's race created unique obstacles or adversity that the applicant overcame.

Regardless of one’s opinion about the constitutionality – or efficacy – of affirmative action programs, the Court’s decision undermined its legitimacy and reinforced the notion that the Court is a political institution. To begin with, Chief Justice Roberts’ opinion effectively overruled three precedents – Regents of the University of California v. Bakke, Grutter v. Bollinger, and Fisher v. University of Texas – thus making stare decisis appear like a doctrine of convenience rather than conviction.

What’s worse, the Court’s decision reflects the deeply troubling reality that the Constitution’s meaning changes when the political affiliation of the Court’s members changes. Let’s be honest: the only reason that the Court ended affirmative action in college admissions is because Justice Brett Kavanaugh replaced former Justice Anthony Kennedy and because Justice Amy Coney Barrett replaced the late Justice Ruth Bader Ginsburg. To be sure, ten years ago, the Court would have decided Students for Fair Admissions differently, and only because the political affiliations of the Court’s members at that time were different. Indeed, the Court’s decision suggests that constitutional rights can be tossed in the proverbial garbage simply because there are more conservatives on the Court in 2023 than there were in 1978 (when Bakke was decided) or 2003 (when Grutter was decided). That is the point – and the problem. The Court’s decision cheapened constitutional meaning and contributed to transforming the Court into a political, not legal, institution. The justices surely understand this, but probably do not care.[7]

Lest there be any doubt, consider Dobbs v. Jackson Women’s Health, where the Court overturned Roe v. Wade and Planned Parenthood v. Casey and held that the Fourteenth Amendment did not protect a right to abortion.[8] Although the Court’s decision was correct as a matter of constitutional law, it was also incorrect from a pragmatic standpoint. After all, just as one wonders what made the justices discover an unenumerated constitutional right in those invisible penumbras that the Court created in Griswold v. Connecticut, one must also wonder what made the justices suddenly discover that the Constitution did not protect a right to abortion. The answer is obvious: the justices’ political preferences. Unfortunately, the public’s opinion of the Court is damaged when it perceives that politics, not law, and party affiliation, not principle, motivate the Court’s decisions. And although the justices continually emphasize that policy preferences do not motivate their decisions, the fact remains that perception matters more than reality. In fact, it is reality.

This raises a broader point: why is the Court getting involved in these cases? Where reasonable people can disagree regarding the Constitution’s meaning, such as where the text is broadly phrased or ambiguous, why is the Court deciding for an entire nation what should be decided democratically? For example, in Kennedy v. Louisiana, the Eighth Amendment’s text could not possibly answer the question of whether authorizing the death penalty for child rape constituted cruel and unusual punishment.[9] Likewise, in Clinton v. New York, the Presentment Clause provided no guidance on the Line-Item Veto Act’s constitutionality.[10] Additionally, in Citizens United v. FEC and McCutcheon v. FEC, the First Amendment’s text could have been interpreted differently when deciding the constitutionality of limits on independent expenditures.[11] As a result, the Court should have allowed the people to decide these issues democratically. But the Court refused to do and, in so doing, nine unelected justices –who graduated from elite law schools and come from a privileged pedigree – substituted their judgment for that of citizens and Congress. Not to mention, it is quite problematic to preach deference to the coordinate branches in cases such as National Federation v. Independent Investors v. Sebelius, and then in Shelby County v. Holder to simultaneously invalidate portions of the Voting Rights Act that the Senate reauthorized by a vote of 99-0.

If the Court wants to maintain its legitimacy, it should show greater respect for its precedents and stop getting involved in cases where the Constitution’s text nowhere demands its involvement.

[1] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)

[2] Id.

[3] Id.

[4] Id.

[5] 557 U.S. 701 (2007).

[6] See Slip Op. at 20-1199 Students for Fair Admissions, Inc. v. President and Fellows of Harvard College (06/29/2023) (supremecourt.gov)(emphasis added).

[7] This is not to say that the majority was wrong as a matter of constitutional law, or in any way to question the justices’ motivations. It is to say, however, that their decision suggests that politics, not law, drove the decision.

[8] 142 S. Ct. 2228.

[9] 554 U.S. 407 (2008).

[10] 524 U.S. 417 (1998).

[11] 558 U.S. 310, (2010); 572 U.S. 185 (2014).

September 2, 2023 in Appellate Advocacy, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Sunday, August 27, 2023

Political Debates and Oral Advocacy: Differences and Similarities

Watching the past week’s Republican presidential candidate debate and its subsequent press coverage caused me to reflect on the differences between that type of political debate and appellate oral argument. Some of the differences are obvious.

In political debate, candidates are free to ignore the question posed to them and discuss something entirely different, make baseless claims without fear that it will adversely affect the decision they seek, and treat the time limits as advisory. They may also get an off-the-wall question, like when former New Jersey Governor Chris Christie fielded a question on alien life and UFOs.

Now, imagine the appellate advocate doing the same things or facing a similar set of questions. It is hard to do. Judges are usually well informed about an advocate’s position. They have read the briefs, reviewed underlying authorities, and expect answers to their questions. Because advocates are hoping to win over the judges themselves, rather than an unseen audience of the public, they must be both more respectful of their inquisitors and more concerned that their answer provides the grist that the judge seeks. They must also be highly accurate, both about the record and about the precedents they cite. Credibility is the coin of the realm for an advocate, and real-time correction of a false assertion can occur. In one of my arguments, my opponent made the same claim orally as he did in his opening brief about the record, which I had rebutted in my response. The judges were all over him as soon as the error was uttered. By the time he was able to return to his argument, the judges appeared unwilling to listen to his additional points.

Also, unlike in politics where differentiating yourself from your co-debaters may encourage it, oral advocates cannot engage in theatrical stunts. It will not play to the decision-makers that matter in a court of law.

On the other hand, there are similarities in some aspects of effective political debate and oral advocacy. Telling a succinct story can be tremendously effective in both forums. That is why politicians will often turn their biography into a compelling narrative. It memorably makes a connection with their audience that is essential. Advocates also find storytelling an important skill. Whether it is fashioning the record into a powerfully sympathetic description of what is at issue or presenting precedents so that they inexorably lead to the preferred result, advocates seek to tell a story that strikes a responsive chord in their panels.

Both debaters and advocates must be skilled in transitioning from questions to other important points. A minor issue on the debate stage should not take up important time, so a skilled politician must be capable of answering succinctly and use the remaining time to raise a more important point that might otherwise go undiscussed. Similarly, an advocate who can dispose of a simple question quickly can return to the one or two points that may be more critical to discuss.

Candidates and advocates both also seek to show why their opponent is wrong. It can be that the policy/result their opponent seeks makes little sense, conflicts with successful positions/prior precedent that experience supports, or fails to address the real underlying issue. And, it helps in both forums to have a winning personality and pleasant demeanor. Just as a politician who comes off as dour wins few votes, an advocate who treats every question with hostility rarely comes off well. Unpleasantness, though, may not lose a case, even if it could lose a political vote. When I worked at a court, I recall hearing one judge comment after an oral argument where the advocate “admonished” the judges that the lawyer had hurt herself. In the end, that advocate won a unanimous decision. I never understood how she hurt herself. Perhaps the decision was written more narrowly than the judges were otherwise inclined to do.

Yet, despite these similarities and skills that can prove effective in both forums, appellate advocacy is a less wide-open and emotional endeavor than political debate. And the best oral advocates understand that.

August 27, 2023 in Appellate Advocacy, Federal Appeals Courts, Oral Argument, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, August 4, 2023

Appellate Advocacy Blog Weekly Roundup Friday, August 4, 2023

US Supreme Court Opinions and News

The conversation about the Supreme Court’s shadow docket continues this summer. See a piece in The National Law Journal that discusses the shadow docket and some of the recent Court decisions, including those summarized here.
The Court granted the Biden administration request to block a Texas judge’s nationwide ruling that invalidated a federal restriction on ghost guns. The restriction bans “buy build shoot” kits, which can be bought on line without a background check and do not have traceable serial numbers. The Texas court ruled that the administration exceeded its authority in adopting the rule and blocked the rule. The Supreme Court blocked that ruling while it considers whether to reinstate the rule pending appeal to the Fifth Circuit. See reports from Reuters and NBC.
The Supreme Court lifted the stay on the construction of the Mountain Valley pipeline project as the appeal continues. The Fourth Circuit had temporarily blocked construction earlier this summer. See reports from The New York Times and The Washington Post.

State Court Opinions and News

The Ninth Circuit stayed a District Court for Northern California decision blocking the Biden administrations new rules for asylum seekers. The new rules make it more difficult for migrants to get asylum if they cross the U.S.-Mexico border illegally without first seeking protection from a country they’ve passed through to reach the border. The challenge argued that the rules endangered asylum-seekers by requiring them to wait in border towns, and the District Court agreed, blocking the rules. The Ninth Circuit placed the appeal on an expedited schedule but allowed the rules to continue while it considers the case. See the order and reports from The New York Times, NPR, The Associated Press, and Reuters.
The Eleventh Circuit held that receiving an “unwanted, illegal text message” constitutes a concrete injury. This decision disagrees with a previous decision finding that a single unwanted text message is a "brief, inconsequential annoyance [that is] categorically distinct from those kinds of real but intangible harms" and therefore insufficient to meet the injury-in-fact requirement. See the TCPA blog.

August 4, 2023 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, July 21, 2023

Appellate Advocacy Blog Weekly Roundup Friday, July 21, 2023

US Supreme Court Opinions and News

The Supreme Court has finished releasing opinions for the 2022-23 term and, as usual, there are a number of Supreme Court term wrap-ups and commentaries on the term: The Heritage Foundation's Scholars and Scribes Review the Rulings, Adam Feldman’s Empirical SCOTUS, USAToday, NPR, and BloombergLaw.
And looking forward, the Court released the October 2023 oral argument calendar. Here are a couple of places to find the cases (and some commentary) on the docket for 2023-24: Oyez.org, SCOTUSBlog, and BloombergLaw.

State Court Opinions and News

The California Supreme Court rejected a 2022 Supreme Court ruling on a California Labor law. The Private Attorneys General Act (PAGA) allows employees to sue employers, individually or collectively, in the name of the state. The Supreme Court held that PAGA violated the rights of businesses where the contract requires workers to submit to individual arbitration rather than filing suit. The California Supreme Court rejected that interpretation, stating “the highest court of each State … remains the final arbiter of what is state law.” The California Supreme Court ruled that, even though the Act may require workers to arbitrate their own claims, PAGA also allows workers to join co-workers to sue on behalf of the state. See ruling and a report from the San Francisco Chronicle.
The Illinois Supreme Court upheld a law that eliminated cash bail, allowing a new system to begin. Illinois will become the first state in the U.S. to end cash bail for criminal defendants awaiting trial. Governor Pritzker supports the new law and the decision, saying ““We can now move forward with historic reform to ensure pretrial detainment is determined by the danger an individual poses to the community instead of by their ability to pay their way out of jail.” The challenge to the law argued that the changes were unconstitutional. But the Illinois Supreme Court ruled that “The Illinois Constitution of 1970 does not mandate that monetary bail is the only means to ensure criminal defendants appear for trials or the only means to protect the public. Our constitution creates a balance between the individual rights of defendants and the individual rights of crime victims.” See the order and reports from The Chicago Tribune, The New York Times, and The Wall Street Journal.

July 21, 2023 in State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, July 9, 2023

Reflections on the Originalism Debate

Admittedly, I was at a loss today about what topic to write about on this blog. But then I thought about the debate that I had with Robert Peck and Phillip Seaver-Hall regarding originalism. That debate was an example of how to engage in civil and respectful discourse.

1. We did not attack each other; we attacked each other’s ideas.

Not once did Robert, Phillip, or I attack each other. Rather, we challenged each other’s ideas and arguments, including regarding the cases upon which we relied to support different interpretive methods. Indeed, to promote a diverse and reasoned public discourse, you must separate the person from the argument, and the individual from the ideas. Otherwise, you cannot have a constructive debate and the marketplace of ideas becomes a fading memory rather than an enduring value.

2. You can disagree and still be professional and respectful.

At all times, the language that Robert, Phillip, and I used in presenting our arguments was respectful and professional. We did not use over-the-top language or strong adjectives to denigrate or demean each other’s position or person. Simply put, you can disagree with someone and still be friends. You can disagree and still value each other as professionals and people.

If anyone doubts that, talk to a couple that has been married for fifty years. Or remember that Justices Scalia and Ginsburg had a close and enduring friendship for years. And for good reason. Human beings are much more than their views on, among other things, constitutional interpretation, their vote for a presidential candidate, or their views on abortion. As Justice Scalia said when discussing his close friendship with Justice Ginsburg, “some very good people can have some very bad ideas.”[1]

3. We showed humility.

The debate was respectful and polite. And it was not about trying to force our views upon the readers, but about making an argument and letting the readers form their own conclusions. Robert said it perfectly: “Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said.” I suspect that some readers will agree with Robert and Phillip, and some will agree with me. That is a good thing.

Humility means, among other things, that you do not always believe that you are right. It means that you do not dismiss alternative perspectives. Rather, you listen to and learn from your opponents’ perspectives – and have the courage to admit when you are wrong. When people insist that they are right, something is usually very, very wrong.

Put differently, being an originalist does not make you a bad person; it does not mean that you support discrimination or inequality or are striving to advance a conservative agenda. Likewise, being a living constitutionalist (or embracing any alternative theory) does not make you a bad person either; it does not mean that you are relying solely on subjective values to advance a liberal agenda. Human beings are far more complex. Their ideas are far more nuanced. They come from different environments and thus have different worldviews. Respecting, rather than vilifying, those views is essential to a properly functioning democracy.

In academia today, this is often glaringly absent, and it is a shame. If diversity and inclusion mean anything, they mean welcoming and respecting different perspectives and allowing students to form their own conclusions rather than indoctrinating them into a particular worldview.

Ultimately, when asked how he dealt with colleagues with different ideas on constitutional interpretation, Justice Scalia replied, “if you can’t separate the two [the ideas from the person], you [have to] get another day job.”[2]

The same is true for law students, lawyers, professors, and, for that matter, everyone.

[1] 60 Minutes, Interview with Justice Scalia, available at: Justice Scalia On Life Part 1 - YouTube

[2] Id.

July 9, 2023 in Appellate Advocacy, Current Affairs, Law School, Legal Ethics, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, July 2, 2023

A Sur-Reply on Originalism

A Sur-Reply on Originalism

The debate on these pages teaches lessons about arguing appeals.

Most readers of this blog probably look for the practice tips and insights that are often discussed on this blog. Occasionally, though, contributors address more substantive content. Beyond the doctrinal discussions that the contributors believe inherently interesting, these debates provide practical lessons. The different approaches to argument and counterpoint also enable readers to assess the effectiveness of these different tactics.

Recently, three of us weighed in on the use of originalism as an interpretive methodology. We used support for our views from putative allies of the other side (e.g., Adam citing Justice Kagan and me citing James Madison and Justice Scalia), disputed whether examples used supported the claims made for them, employed rhetorical devices, suggested procedural flaws, and honed in on weaknesses in our opponents’ theory.

In his reply to the arguments that Phillip Seaver-Hall and I made, Professor Adam Lamparello, who started the debate, wrote a reply. I found his defense of his position too juicy to ignore.

A familiar debate tactic does not necessarily win the day when it assumes too much.

Adam starts with a truism – that it is easy to criticize and much harder to propose solutions, which is a standard debate tactic. He suggests that his critics have failed to propose an alternative to originalism and that undermines their stance. However, he assumes that the goal he seeks is either universally desired or achievable. While it is true that we generally agree that judges should not invent constitutional holdings as though a court were a rolling constitutional convention and instead show fidelity to text and principles, both Phillip and I argued that originalism does not produce the interpretative nirvana Adam seeks and is as prone to imprinting personal views on the Constitution as any other approach. I showed that the decisions he cited to show results different than a judge’s ideological predisposition did not qualify as originalist so that they did not support his point.

Moreover, I expressed my doubts that any methodology could cabin human preferences or biases and were instead subject to selective reliance on those historical artifacts that hit a responsive chord with our personal views. Even so, as the best we could do, I suggested that common-law methodologies were both constitutionally proper and useful, citing a 1992 book I wrote for West Publishing on the topic.

That methodology permits us to consider the text, the framers’ intent, the ratifiers’ understandings, our collective experience, and precedents to understand the wisdom of all who came before us, seeking to apply constitutional principles, and be a part of that cross-generational conversation of what free speech or due process means, anchored in the written words and underlying purposes of a constitution, as Chief Justice John Marshall said, “intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.”[1] That sentiment was cited and endorsed by the originalist decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] with the additional explanation that the Constitution’s fixed meaning still must be “appl[ied] to circumstances beyond those the Founders specifically anticipated.”[3]

Nor is a common-law methodology necessarily unbounded. Properly utilized, it employs generations of wisdom in applying law to controversies “to form a stable body of rules that not only determine immediate controversies but also guide future conduct,” as the late New York Chief Judge Judith Kaye explained.[4] She added, that to the extent it changes, it “grows incrementally, in restrained and principled fashion, to fit into a changing society.”[5]

That growth in sensible application, such as finding that schoolchildren do not shed their constitutional rights at the schoolhouse gate when public schools or the rights of children may never have been in the contemplation of those responsible for the First Amendment or even Fourteenth Amendment due process but still accords with our understanding of those rights throughout the ages. For me, this process seeks to remain faithful to the words and the document’s legitimacy as the written product of a democratic process, yet seeks to maintain its continued vitality by applying its commands and principles today to modern controversies not by whether those applications occurred at the time of ratification but with an understanding that that constitutional principles “have an iceberg quality, containing beneath their surface simplicity submerged complexities”[6] that may only be apparent when tested under a specific fact pattern.

Examples used must support the claim made.

Because he believes his debate opponents did not propose an alternative, Adam uses a straw man of “living constitutionalism,” to argue against it. Living constitutionalism is a loaded term, associated with the idea that the Constitution evolves to fit modern times and leaving judges with unbridled authority as though judges were solons employing their personal wisdom. He then works to knock down the legitimacy of “living constitutionalism.”

Treating Adam’s post as an argument against constitutional evolution through judicial decision, he uses a frequent tactic in arguments by showing how it produces bad results. Specifically, he attributes the decisions, unthinkable today, of Dred Scott v. Sandford,[7] and Korematsu v. United States,[8] to its use. He argues that both cases were policy decisions by a court not invested with policy authority, rather than interpretations of the Constitution as originally understood. I found that formulation curious because a reading of the two cases suggests that they were either originalist or textualist in nature.

In Dred Scott, Chief Justice Roger Taney wrote “[i]t is not the province of the court to decide the justice or injustice, of the laws” but to interpret the Constitution “according to its true intent and meaning when it was adopted.”[9] That sentence certainly sounds like the originalism Adam favors. Consistent with what the current Supreme Court has done to explore originalism, Taney concluded that black people “were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States,” because they were not considered citizens when the Constitution was adopted.[10] That sentence, fueling the decision, also sounds quite originalist. To overcome that position, we required a civil war and the adoption of the Thirteenth and Fourteenth Amendments.

His second example, Korematsu, might be deemed a textualist decision, rather than one based on “living constitutionalism.” The Court upheld the detestable internment of Japanese-Americans in that case, employing the same rationale it expressed a year earlier in upholding a wartime curfew applied to Japanese-Americans on the West Coast in Hirabayashi v. United States,[11] the Supreme Court reasoned that the

The Fifth Amendment contains no equal protection clause and it restrains only such discriminatory legislation by Congress as amounts to a denial of due process. … Distinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality. For that reason, legislative classification or discrimination based on race alone has often been held to be a denial of equal protection.[12]

The absence of an equal-protection declaration in the Fifth Amendment allowed the Court to treat the constitutional war powers as the proper focus of its analysis. That authority, which it thought would support a plenary curfew despite its burden on rights, would also supports a targeted curfew:

The adoption by Government, in the crisis of war and of threatened invasion, of measures for the public safety, based upon the recognition of facts and circumstances which indicate that a group of one national extraction may menace that safety more than others, is not wholly beyond the limits of the Constitution and is not to be condemned merely because in other and in most circumstances racial distinctions are irrelevant.[13]

Subsequently, in Korematsu, the Court echoed that explanation, stating that even though racial discrimination warrants “rigid scrutiny,” “[p]ressing public necessity may sometimes justify the existence of such restrictions; [even if,] racial antagonism never can.”[14] Once again, war necessity rather than racial discrimination, the Court believed, undergirded the abhorrent treatment of Japanese-Americans.

I’m hard-pressed to understand how originalism might have prevented this result. Originalism would not have read equal protection into the Fifth Amendment, nor would it have necessarily found applicable limits to Congress’s war powers. Certainly, when the Court soon afterwards read an equal protection strand into the Fifth Amendment, it did not engage in originalism to get there. It instead lodged it in the “American ideal of fairness” and precedent that established that equal protection for schoolchildren in the District of Columbia had to be protected just as the Court said for students in the States in the Fourteenth Amendment, was merely a “more explicit safeguard of prohibited unfairness than ‘due process of law,’” and, equally “unjustifiable” as a matter of due process.[15]

Conclusion

Adam initiated a fun debate, and I’m grateful to him for doing so and for the way in which it was conducted. We disagree, and we have our perspectives on what counts or doesn’t count. Readers now can reach their own conclusions, perhaps prompted to a perspective based on what we have said. And they can also judge for themselves how effective our different argument strategies were in the ways that we deployed them.

[1] McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819) (emphasis in orig.).

[2] 142 S. Ct. 2111 (2022).

[3] Id. at 2132.

[4] Judith S. Kaye, State Courts at the Dawn of A New Century: Common Law Courts Reading Statutes and Constitutions, 70 N.Y.U. L. Rev. 1, 5 (1995).

[5] Id.

[6] Flast v. Cohen, 392 U.S. 83, 94 (1968).

[7] 60 U.S. 393 (1857), superseded by U.S. Const. amend. XIV (1868).

[8] 323 U.S. 214 (1944), abrogated by Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[9] Dred Scott, 60 U.S. at 405.

[10] Id. at 407.

[11] 320 U.S. 81 (1943).

[12] Id. at 100 (citations omitted).

[13] Id. at 101.

[14] Korematsu, 323 U.S. at 216.

[15] Bolling v. Sharpe, 347 U.S. 497, 499 (1954).

July 2, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, June 25, 2023

"We Are All Originalists": A Response to Robert Peck and Phillip Seaver-Hall

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

This post responds to Robert Peck and Phillip Seaver-Hall, two contributors to this blog. Before I respond, I would like to thank Robert and Phillip for responding to my post, and for a great discussion on constitutional interpretation. I respect but disagree with their views, and below I provide a brief summary of why originalism, albeit imperfect, is the best method of constitutional interpretation.

1. Robert and Phillip provide no credible alternative to originalism.

It’s easy to criticize and problematize. Whether it is a theory of constitutional interpretation, the flaws of implicit bias theory, or the discrimination against conservatives in the legal academy, anyone can identify flaws.

It’s harder to propose solutions.

So, what is the alternative to originalism? What interpretive theory do you support, and why? And why is that theory superior to originalism, particularly in adhering to the Constitution’s text, promoting democratic participation, and ensuring that citizens, not unelected judges, have an equal voice in determining the rights and laws under which they will be governed? In my view, Robert and Phillip’s critiques offer no alternative theory, or at least not in any great detail.

Regardless, the primary alternative – living constitutionalism – would be the cure that is worse than the disease. To be clear, in their responses, Robert and Phillip did not explicitly support living constitutionalism (or some variation thereof) but their arguments suggest that they embrace an interpretive method that at least prioritizes or at least includes elements consistent with living constitutionalism (e.g., considering contemporary values and attitudes, and relying on a provision’s underlying purposes). For example, Phillip states, “[w]hile the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.” That sounds like living constitutionalism.

Living constitutionalism, which, broadly speaking, states that the Constitution’s meaning evolves over time based on contemporary societal attitudes and circumstances that the Founders could not foresee, sounds nice, but the devil is in the details. At its core, living constitutionalism is a license for arbitrariness and subjectivity. What living constitutionalism really means is that judges can reach almost any outcome they want and for whatever reason they want. In short, it allows judges to drown in a sea of subjectivity. And when you are at sea in constitutional law, the result is often nine unelected judges imposing their policy views on an entire nation, where the Constitution’s text and the Founders’ understanding of that text becomes an afterthought – or an inconvenience.

Furthermore, living constitutionalism does not always lead to the equitable results that its opponents believe, and it often involves manipulating or ignoring the Constitution. Let’s look at some of the decisions that “living constitutionalism” produces. To begin with, Dred Scott v. Sandford and Korematsu v. United States, decisions that reasonable (and hopefully even unreasonable) people would find abhorrent, were decisions that “living constitutionalism” produced.[2] As Justice Gorsuch explains, “each [decision] depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day.”[3]

And how can anyone forget the poster child for living constitutionalism – Griswold v. Connecticut – where the Court acknowledged implicitly that the Fourteenth Amendment’s text did not provide a basis to invalidate Connecticut’s law banning contraception.[4] Yet, the Court decided to ignore the text and, out of thin air, create invisible constitutional “penumbras” that emanate from the text like Linda Blair rose from her bed in The Exorcist, or like steam rises from a hot apple pie, and from which the Court – and only the Court – could identify unenumerated rights. As the Court traveled into these invisible penumbras to create a right to privacy, the Constitution, again, became an afterthought. To be clear, a prohibition on contraception is utterly ridiculous. But it was for the people of Connecticut to petition their legislators to change the law – or vote them out of office – not for the Court to intervene and invalidate a law by inventing “penumbras” that, despite how hard you look, are nowhere to be found in the Constitution.

After Griswold, and as living constitutionalism gained traction, it gave us Roe v. Wade, where the Court discovered, either in those penumbras or in the jungle room at Graceland, a right to abortion.[5] Likewise, in Roper v. Simmons, the justices suddenly discovered that it was unconstitutional to execute a minor.[6] Yet, in Washington v. Glucksberg, the Court decided that the Constitution did not protect the right to assisted suicide.[7] So, women can abort pregnancies, minors cannot be executed, and we cannot take our own lives when terminally ill. What in the Constitution gave the Court the right to decide these questions? Nothing. And it has created a mess of constitutional jurisprudence where the political affiliations of the justices, not the Constitution, sometimes determine the outcomes.

Living constitutionalism also fails to constrain judicial decision-making. For example, consider living constitutionalism in the Eighth Amendment context. Phillip states that the Eighth Amendment should prohibit punishments that the Founders would consider cruel and unusual and punishments that are inconsistent with evolving standards of decency. How, exactly, can one possibly define what punishment violates evolving standards of decency? What does that even mean? Imagine judges sitting in their chambers and contemplating, “Hmmm…does executing a child rapist violate evolving standards of decency?” What will guide that determination? Subjective values. And why should a justice on the Supreme Court have the right to impose those values on an entire nation? Your guess is as good as mine. Phillip provides one answer, stating, “one cannot determine what is "cruel" without engaging in a normative, moral analysis.” And that is the point – and the problem.

Likewise, in Kennedy v. Louisiana, the Court confronted the question of whether imposing the death penalty for raping a child under the age of twelve violated the Eighth Amendment. In a 5-4 decision, the Court answered in the affirmative, holding that executing a defendant for child rape was not consistent with “evolving standards of decency.”[8] Now, let’s assume that Robert, Phillip, and I had different views on whether imposing the death penalty for raping a child is consistent with “evolving standards of decency.”

Which view would be superior?

None of them.

After all, who am I to say that I know better than Robert or Phillip or have superior moral values such that I am more able to determine what violates evolving standards of decency?

Furthermore, I don’t think that citizens care what Robert, Phillip, or I think about this matter. I think they care about having the right to decide for themselves and have a voice in the democratic process. After all, this question, like the abortion question, depends largely on a person’s moral values. Thus, why should nine unelected and life-tenured judges decide this question, rather than the citizens of every state in this country? They shouldn’t. Living constitutionalism invites subjectivity, shows a lack of humility, and it enables morality to become the basis for judicial decision-making.

To be clear, I am pro-choice. I do not think that we should execute minors. I believe that laws against contraception are ridiculous. I support same-sex marriage. And I am neither conservative nor liberal. But, again, who cares what I think? Why should the Court be deciding these questions when the Constitution says nothing about them? As Chief Justice Roberts stated in Obergefell v. Hodges, “just who do we think we are?”[9]

Don’t be fooled. Advocates for living constitutionalism want the Court to reach outcomes that further their political agenda and thus reach what they believe are the “right” outcomes. But courts don’t exist to reach outcomes that you like, and if we base our view of the Court solely on whether the outcomes it reaches comport with our policy preferences – or what we perceive as the most just or moral outcome – then we are responsible for politicizing the Court and delegitimizing the rule of law.

Additionally, the process by which the Court makes decisions is critical to ensuring the Court’s legitimacy and ensuring that constitutional meaning does not change simply because its composition changes. Look no further than Dobbs v. Jackson Women’s Health, where the Court’s decision, although certainly defensible on originalist grounds, resulted, as a practical matter, from the fact that the Court’s composition had changed in a conservative direction.[10] So, for advocates of living constitutionalism, I am curious how they would feel about Amy Coney Barrett, Samuel Alito, and Clarence Thomas basing their decisions on subjective values. That is why living constitutionalism fails – it politicizes the judiciary. And it is why the text, and the Founders original understanding of what the text means, it vital to ensuring that judges do not venture into a sea of subjectivity (or any sea, for that matter), and that policy changes occur democratically.

Living constitutionalism is also elitist. You can often spot living constitutionalists from a mile away. It assumes that judges know better than the average citizen about what the ‘right’ outcome is in a particular case. That’s the point: living constitutionalism is about achieving an outcome that a small and elite group of justices prefer, and to reach those outcomes, they need to visit those invisible penumbras or create fictional doctrines like substantive due process. Judges don’t know better, and they don’t deserve that power.

At bottom, living constitutionalism assumes that, in the “heady days of the here and now,” the justices somehow know better, or are more enlightened, than their former colleagues, policymakers, or citizens.[11] It also assumes that, since contemporary society is more advanced and all-knowing in these heady days of the here and now, the results will always produce progressive, or more equitable, results. But who is to say (outside of obvious examples), what is progressive or regressive, and who is to say that living constitutionalism cannot result in what liberals would consider bad or regressive outcomes? If you doubt that, look no further than Dred Scott and Korematsu. And if you think that judges are more knowledgeable than they were a century ago, think again. Read Citizens United v. FEC, McCutcheon v. FEC, or Shelby County v. Holder, and you will see that the justices of today are no better or worse than the judges of yesterday.

Living constitutionalism also predicates constitutional meaning in substantial part on the purpose of a constitutional provision. But how can one know or define what the purpose of a provision is? And what if there are multiple or conflicting purposes? If so, how should these purposes be quantified, and which purpose should govern? Additionally, at which level of generality do you define a purpose because the broader the purpose, the less constrained the judge. For example, if a judge determines that the purpose of a constitutional provision is to protect “bodily autonomy,” or “liberty” then we are all in a lot of trouble. After all, what does “liberty” mean, and what principles exist to determine what “liberty” requires, and when restrictions on liberty violate the Constitution? For example, Justice Anthony Kennedy stated that “the Constitution promises liberty to all within its reach?”[12] What does that mean? It means nothing – and it gives judges the power to do anything they want in the name of “liberty.” As Justice Scalia stated, “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.”[13]

Indeed, consider the “sweet mystery of life” passage, where the Court stated, “at the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life?”[14] If that’s true, why is the Court defining liberty (and autonomy) for everyone in cases such as Roe, yet holding in Washington v. Glucksberg that the right to “define one’s own concept of existence” does not include a right to assisted suicide, and in Dobbs, reversing Roe? Because the composition of the Court, not the Constitution, changed, and because its jurisprudence had strayed so far from the text that subjectivity and morality was the primary driving force underlying those decisions.

Living constitutionalism is nice when most of the justices align with your political views, but it’s not so nice when they do not. Think about Roe and Dobbs: in Roe, the Court discovered in the Constitution (or its “penumbras”) a right to terminate a pregnancy but then, nearly fifty years later in Dobbs, suddenly determined that the Constitution didn’t protect a right to abortion. What exactly changed in the “heady days of the here and now?” The fact that Justices Brett Kavanaugh, Amy Coney Barrett, and Neil Gorsuch were on the Court.

This is not, of course, to say that originalism is perfect, or that judges don’t use originalism to reach outcomes that coincide with their policy predilections. And to the extent that bad judges use originalism to further a conservative agenda – which some do – they are equally blameworthy. As stated above, the Court is not here to reach outcomes that you like – and no one who believes in democratic self-governance should believe that nine unelected and life-tenured justices know more than anyone else about the “mysteries of human life.” Again, as Chief Justice Roberts stated, “just who do we think we are?”[15]

Importantly, however, can’t the same criticism be made against originalism, namely, that it advances the political preferences of conservative justices? Of course. But that, as stated above, is a product of bad judging, not of originalism itself. And originalists often reach outcomes that do not coincide with their policy preferences. Consider, for example, Justice Scalia’s Fourth Amendment and Confrontation Clause jurisprudence. Is that ‘conservative’? Is it a conservative result to decide that the First Amendment protects the burning of the American flag, a decision in which Scalia joined the majority but stated in an interview that he would outlaw it if he were a legislator? No. In other words, Justice Scalia’s political views didn’t always or even often dictate his judicial philosophy. The same is true for Justice Gorsuch, who stated as follows:

In my own judicial career, I’ve written many originalist rulings with so-called “liberal” results. Like United States v. Carloss, where I ruled that the police violated a criminal defendant’s Fourth Amendment rights by entering the curtilage of his home without a warrant despite four conspicuously posted no trespassing signs. Or Sessions v. Dimaya, where I ruled that an immigrant couldn’t constitutionally be punished according to a law so vague that judges were forced to give it content by fiat. Or Carpenter v. United States, where I explained that simply giving your property to another doesn’t necessarily mean you lose all your Fourth Amendment rights in it.[16]

Ultimately, if the process of decision-making results from creating invisible “penumbras,” to reach predetermined outcomes, then judging is no different from legislating. And that should trouble people of any political persuasion.

Indeed, for a “living constitutionalist” who lives, rents, or leases space in Griswold’s penumbras, believes in the fairy tale called “substantive due process,” and thinks that liberty encompasses the “right to define one’s own concept of existence ... and of the mystery of human life,” what constrains their decision-making?[17] Surely, it can’t be the text. Surely, it can’t be history and tradition. Certainly, it can’t be precedent, since stare decisis is akin to the toxic, on-again, off-again relationship that you pursue only when convenient. And most certainly, it cannot be “purpose,” as the purpose of a constitutional provision can be divined at any level of generality that allows you to do whatever you want, whenever you want, and for whatever reason you want.

Put simply, politics and policy preferences have no place in the Supreme Court. Living constitutionalism, however, puts those preferences at the forefront rather than in the rear-view mirror.

2. Constitutional ambiguity, Clinton v. New York, and deference.

What should the Court do when it confronts constitutional ambiguity? How should originalists and living constitutionalists address this problem? Robert and Phillip provide no satisfactory answer. But it appears that they would not object to the Court intervening to decide questions where the Constitution’s text is ambiguous. I do object. In such instances, the Court should defer to the coordinate branches and the democratic process.

Many scholars will, of course, cite Marbury v. Madison, a case that did not do nearly as much as living constitutionalists might claim, to support the proposition that the Court has the right and duty to clarify constitutional ambiguity.[18] Marbury stands for the proposition that the judiciary has the power to say, “what the law is,” although it’s difficult to know what that statement exactly means. Regardless, does Marbury say that the Court has the power to say what the law should be, and even if it did, is there a legitimate justification for intervening in constitutional disputes when the text is ambiguous and reasonable people could arrive at different conclusions? No.

In such circumstances, the Court should do nothing. The Court’s decision in Clinton v. New York is among the best and rarely discussed examples of where the Court intervened when the Constitution was ambiguous, and when it should have deferred to the coordinate branches.[19] In Clinton, Congress passed the Line-Item Veto Act of 1996, which, among other things, gave the president the right to veto specific provisions in spending bills. The bill was passed by both houses of Congress and, after its constitutionality was challenged, the issue before the Court was whether the legislation violated the Presentment Clause.[20] Now, the text of the Presentment Clause is sufficiently broad that reasonable persons could differ on whether it rendered the Act unconstitutional. Thus, why did the Court intervene and, in a 6-3 decision, invalidate legislation that would have likely reduced wasteful government spending? I have no idea. The same was true in District of Columbia v. Heller, where the Court invalidated a law in the District of Columbia requiring, among other things, that certain guns be unloaded and disassembled in the home.[21] The Second Amendment did not clearly answer the question of whether the law was constitutional. As such, the Court – and its originalists – should have deferred to the District of Columbia’s lawmakers.

Put simply, if reasonable people can interpret a constitutional provision differently, why should nine unelected justices decide that question for an entire nation? Again, your guess is as good as mine.

Now, Phillip claims that this approach suggests that I support “a shockingly limited perception of the proper role of the judiciary,” that’s “entirely atextual” and that I am inventing “constitutional rules out of thin air.” I do support a more limited judicial role, but I don’t find it shocking. Where does the text support Phillip’s approach? I respectfully suggest that, as the commentator below argues, living constitutionalism is entirely inconsistent with what the Founders expected:

America’s contemporary understanding of judicial power is inconsistent with the argument put forward by Hamilton and Madison in The Federalist. Although The Federalist affirms the power of judicial review—and hence the role of the judiciary as a check on the other branches—it does not present this as the most important function of the courts. Moreover, The Federalist does not support the vast implications of judicial review as including a power to decide the great moral issues of the times and to adjust the Constitution to trends in public opinion. Finally, The Federalist lends no aid to the belief that the Supreme Court is the ultimate interpreter of constitutional meaning, unanswerable for its interpretations to any authority but itself.[22]

Indeed, the view that courts should be the final or primary arbiters of constitutional meaning, particularly concerning moral questions, reflects the desire to use the Court to advance a political agenda:

Although the courts have always held a key place in our constitutional system, this very lofty conception of their authority has largely arisen over the past several decades. The rise of this view can be traced in part to the influence of modern liberalism, which has used the courts as instruments of social and political change and has accordingly had to bolster the authority of the judiciary.[23]

This passage, among many others, doesn’t support the argument that I am inventing constitutional rules out of thin air. If I wanted to do that, I could have entered Griswold’s penumbras with nothing but my moral compass to guide the way. Ultimately, since the outcomes for which living constitutionalists advocate “are not clearly required by the text of the Constitution—or, in the case of affirmative action, may even be in tension with it—the Left has had to argue for a more free-wheeling kind of judicial review.”[24] A “free-wheeling kind of judicial review” is precisely what Griswold and Roe embrace, and reflect what is antithetical to a country committed to democracy. As Professor Holloway explains:

The Federalist’s account of the judicial power is more consistent with the dignity of the American people as the country’s sovereign because it ensures that, although their will can be checked by courts defending the clear and settled meaning of the Constitution, it cannot be subordinated to the will of judges who make the Constitution mean what they want it to mean in order to secure outcomes that they regard as just.[25]

Importantly, when the Court gets involved in deciding disputes where the Constitution is ambiguous (and living constitutionalists and originalists are equally to blame) it often harms democratic participation and efforts to improve democratic governance. For example, in Citizens United v. FEC and McCutcheon v. FEC, the Court invalidated limits on independent expenditures by groups, including corporations, and individuals that Congress passed to, among other things, reduce the undue influence of money in elections.[26] Why? As the Court held in Austin v. Michigan Chamber of Commerce, the First Amendment could arguably be interpreted to allow such limitations.[27] At the very least, alternative interpretations of the First Amendment were possible. As such, the Court should have deferred to the coordinate branches.

Likewise, in National Federation of Independent Investors v. Sebelius, did the Affordable Care Act’s individual mandate (and its other provisions) violate the Commerce Clause?[28] Again, who knows. The Court should have never intervened, and Chief Justice Roberts likely upheld the mandate, at least in part, because he didn’t want the Court to be perceived as invalidating a statute that did not clearly violate a constitutional provision. The problem is that, in Shelby County v. Holder, Roberts wrote a majority opinion that overturned portions of the Voting Rights Act that the Senate had re-authorized by a 99-0 vote.[29] Why?

What does all of this have to do with originalism? In other words, between originalism and living constitutionalism, which theory is better when the Court is faced with constitutional ambiguity?

Originalism.

Although originalism is not perfect and cannot answer every constitutional question, and although there are certainly bad judges who use originalism to reach specific outcomes, it requires judges to at least try to identify what the Founders intended the words to mean, and to base their decisions on a reasonable interpretation of the text. That reduces the influence of subjective values on judicial decision-making. If you disagree, look no further than Griswold’s penumbras, the “sweet mystery of life” passage, and “substantive” due process – all of which can be attributed to living constitutionalism – and which allow the Court to create unenumerated rights that have nothing to do with the Constitution.

The less power the courts have, the better. Originalism lends support to the basic proposition that citizens should stop looking to the Court to impose policy on an entire nation. Change occurs through the legislative process.

Erwin Chemerinsky, who is among the most influential legal scholars in the country (and a wonderful person), recently wrote an outstanding book titled: Originalism: Worse than Nothing. The Dangerous Fallacy of Originalism.[30] For the reasons stated above, living constitutionalism, not originalism, is worse than nothing because, at bottom, living constitutionalism is nothing.[31]

After all, there is a reason why, as Justice Kagan stated, “we are all originalists.”[32]

[2] See Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[3] Id.

[4] 381 U.S. 479 (1965).

[5] 410 U.S. 113 (1973)

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

[7] 521 U.S. 702 (1997).

[8] 554 U.S. 407 (2008).

[9] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[10] 597 U.S. , 2022 WL 2276808.

[11] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[12] Id.

[13] Id. (Scalia, J., dissenting).

[14] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[15] Obergefell v. Hodges, 576 U.S. 644 (2015) (Roberts, C.J., dissenting).

[16] See Neil Gorsuch, Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[17] Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

[18] 5 U.S. 137 (1803).

[19] 524 U.S. 417 (1998).

[20] Id.

[21] 554 U.S. 570 (2008).

[22] Carson Holloway, Against Judicial Supremacy: The Founders and the Limits on the Courts (January 25, 2019), available at: Against Judicial Supremacy: The Founders and the Limits on the Courts | The Heritage Foundation

[23] Id.

[24] Id.

[25] Id.

[26] 558 U.S. 310 (2010); 572 U.S. 185 (2014).

[27] 494 U.S. 652 (1990).

[28] 567 U.S. 519 (2012).

[29] 570 U.S. 529 (2013).

[30] Yale University Pres, 2022.

[31] See Adam Carrington, Erwin Chemerinsky’s Weak Critique of Originalism (September 18, 2022), available at: Erwin Chemerinsky’s Weak Critique of Originalism - The American Spectator | USA News and Politics.

[32] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com) (emphasis added).

June 25, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, United States Supreme Court | Permalink | Comments (1)

Friday, June 23, 2023

Appellate Advocacy Blog Weekly Roundup Friday, June 23, 2023

US Supreme Court Opinions and News

The Supreme Court ruled 8-to-1 that the states challenging the Biden administration’s immigration enforcement guidelines lacked standing to sue. Texas and Louisiana had sued to block guidelines that set priorities for which unauthorized immigrants should be arrested, focusing on “national security, public safety, and border security.” The ruling did not comment on the merit, finding only on the matter of standing, writing: “The states have brought an extraordinarily unusual lawsuit. … They want a federal court to order the executive branch to alter its arrest policies so as to make more arrests. Federal courts have not traditionally entertained that kind of lawsuit; indeed, the states cite no precedent for a lawsuit like this.” See ruling and a report from The New York Times.
In a ruling considered a victory for Native American Rights, the Supreme Court upheld a law that gives preference to Native families in adoptions of Native American children. A non-Native couple challenged the law arguing that it violated equal protection principles because it permits child placement to be decided based on race. The majority dismissed the equal protection argument, basing the ruling instead on Congress’s authority to make law about Native American tribes: “Our cases leave little doubt that Congress’s power in this field is muscular, superseding both tribal and state authority.” See the decision and reports from The New York Times, The Los Angeles Times, The Wall Street Journal, and USA Today.
The New York Times’ Adam Liptak wrote a piece this month called “Tracking Major Supreme Court Cases in 2023” that identifies and discusses both decided and expected cases of note for this term, including cases on race and voting maps, tribal rights, environmental protection, affirmative action, elections, and student loans (to name a few). The piece identifies the voting breakdown and holding (or the issue, for undecided cases) as well as statistics about public opinion for each issue. And John Fritz at USA Today wrote about some of the cases that might be on the horizon for the Court’s next term.

Appellate Court Opinions and News

The Second Circuit rejected a challenge to a New York “buffer zone” law for abortion clinics. The law prohibits a person who is within a 100-foot area around a reproductive health facility from getting within eight feet of another for the purpose of “oral protest, education, or counseling.” The petitioner argued that the law violates her right to free speech. Relying on the 2000 Supreme Court ruling in Hill v. Colorado, the court held that the law did not violate the First Amendment because the law is not a regulation on speech but "a regulation of the places where some speech may occur." See ruling and a report in Reuters.

June 23, 2023 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (1)

Tuesday, June 20, 2023

Originalism's Frailties: A Reply to Professor Lamparello

By Philip Seaver-Hall

Last week, Professor Lamparello argued on this blog that "originalism, although not perfect, is the best method of constitutional interpretation." I'm skeptical.

Admittedly, in the vacuum of political theory, originalism has a certain elegance and persuasive force. The Framers created a system of separated powers, originalists reason. Congress makes law; the judiciary merely interprets it. Any interpretive theory that permits unelected judges to change the meaning of a law is dangerous and anti-democratic. Thus, to curtail judicial legislation, originalists say that judges should endeavor to discover and preserve the meaning the Constitution's words bore at the time of ratification. After all, the law is the law, until lawfully changed under Article V.

I happily concede these points. (What serious constitutional lawyer would dare disagree with these basic principles of political science?) But they're not the whole story.

In this essay, I hope to show why a rigid, singular focus on original public meaning is a shortsighted way of interpreting many of the Constitution's provisions. In Part I, I discuss serious reasons to doubt the idea that the Framers actually believed in originalism as an interpretive theory. In Part II, I dissect Professor Lamparello's "ideal approach" to constitutional interpretation, highlighting its practical shortcomings and its lack of textual or historical support. And in Part III, I interrogate Professor Lamparello’s claim that originalism most effectively constrains judges.

I. Originalists bear the burden of proving that originalism was, in fact, the original intent of the Framers. But on that score, there is serious reason for doubt.

Originalism's focus on the Framers' intent raises a threshold question: did the Framers actually believe in originalism? Whether viewed through the lens of "New Originalism" (which eschews extratextual sources, focusing only on the original public meaning of the document's text) or "Traditional Originalism" (which focuses on the drafters' subjective intent), there are serious reasons to doubt that the Framers would have actually endorsed the theory.

A. The Constitution's text, structure, and purpose all cast doubt on the idea that the Framers would have preferred originalist judges.

In interpreting the Constitution, we must start with its text.[1] To be sure, the text is frequently clear and free from ambiguity--nobody could seriously argue, for example, that Article I allows a state to elect three senators[2]--and when the text is clear, the inquiry ceases. But the text also contains many provisions with broad, normative language. Take, for example, the Constitution's guarantee of "equal protection of the laws,"[3] its prohibition of "cruel and unusual punishments,"[4] or its clause forbidding "unreasonable searches and seizures."[5] It's no coincidence that many of these nebulous, normative words are found within the Constitution's substantive guarantees.

Why would the Framers purposefully choose such ambiguous, value-based language? First, it was politically savvy, since it provided a way to quell the local concerns that presumably would have arisen during the states' ratification debates. But more importantly, the Framers wanted their document to have staying power. This is expressly confirmed by the Constitution's Preamble--which, originalists should agree, is a proper source of clarification in the face of textual ambiguity[6]--where it states that one of the Constitution's core purposes is "to secure the Blessings of Liberty to ourselves and our Posterity."[7]

Let's pause here to nip a possible misapprehension in the bud. Readers may presume I'm arguing for a Constitution whose fundamental meaning changes over time. Not so. The meaning of the Constitution's words doesn't change; I do not argue, for example, that "equal protection" should be redefined to sanction unequal insecurity. But, as mentioned, the Constitution frequently uses ambiguous, normative language. While the meaning of the words shouldn't change, our societal conception of what fits within those words--i.e., what those words tell judges they should be looking for--can grow.[8] That's a key difference.

Consider, for example, the Fourteenth Amendment's Equal Protection Clause. Few historians would argue that the Equal Protection Clause was intended to apply to women; conventional wisdom holds that the Reconstruction Amendments were principally aimed at combating racial prejudice against Black citizens.[9] Indeed, in 1868, no state had an operative women's suffrage law,[10] and coverture still held a grip on American gender relations.[11] And yet, the Amendment's words are plain: no State may "deny to any person within its jurisdiction the equal protection of the laws." While women might not have been considered "persons" deserving of "equal protection" in 1868, our attitudes and prejudices on that front have changed. For that reason, the Supreme Court correctly held in Reed v. Reed[12] that the Equal Protection Clause applies to women. Critically, the meaning of the Equal Protection Clause didn't change; the Court did not hold, for example, that the Clause no longer applied to Black citizens. Our understanding of what the Equal Protection Clause tells us to look for, however, evolved.

Would an originalist, focused solely on the ratifying generation's understanding of the Fourteenth Amendment's text, reach the Reed Court's conclusion? I have my doubts.

Eighth Amendment jurisprudence provides a contrary example—one where the Court has wrongly changed the standard. The Eighth Amendment forbids "cruel and unusual punishments."[13] But one cannot determine what is "cruel" without engaging in a normative, moral analysis.[14] For this reason, the U.S. Supreme Court has correctly concluded that a punishment is unconstitutionally cruel if it is considered cruel in light of the "evolving standards of decency that mark the progress of a maturing society."[15] But, critically, the Court has also held—wrongly, I contend—that the Eighth Amendment does not draw any meaning from “the standards that prevailed . . . when the Bill of Rights was adopted[.]”[16]

The more proper reading of the Cruel and Unusual Punishments Clause would hold that it prohibits both (1) punishments that would have been considered cruel and unusual in the founding era and (2) punishments that are cruel and unusual under our maturing society’s evolving standards of decency. Had the Court not discarded history, this "evolving standards of decency" test wouldn’t have changed the meaning of the phrase "cruel and unusual" at all; it would have given full effect to the phrase by recognizing that it’s both descriptive and normative.

Undeniably, originalists make many good points. But too often, by refusing to look past the "original public meaning" of a constitutional provision, originalists unduly constrict (and therefore change) the Constitution's normative language. In doing so, originalists commit the same sin they swear to disavow.

B. The historical record, too, casts doubt on the idea that the Framers would have approved of originalism.

Originalists insist that New Originalism was actually the authoritative American method of legal interpretation until the mid-twentieth century, when Chief Justice Earl Warren took the bench.[17] But here again, history renders that claim dubious.

Take, for example, William Blackstone, who most scholars consider the authoritative expositor of the common law. Justice Scalia has famously called Blackstone a "thoroughgoing originalist."[18] Yet, in his Commentaries on the Law of England, Blackstone said that "the fairest and most rational method to interpret the will of the legislator, is by exploring his intentions at the time when the law made, by signs the most natural and probable. And these signs are either the words, the context, the subject matter, the effects and consequence, or the spirit and reason of the law."[19] Blackstone also said that "the most universal and effectual way of discovering the true meaning of a law, when the words are dubious, is by considering the reason and spirit of it; or the cause which moved the legislator to enact it."[20] That's hardly the stuff of modern-day originalism.

Consider, also, Chief Justice Marshall. In Cohens v. Virginia,[21] Marshall asked rhetorically whether "the spirit of the constitution" would justify Virginia's exempting itself from the federal constitution.[22] And in McCulloch v. Maryland,[23] Marshall said that "all means which are . . . not prohibited, but consistent with the letter and spirit of the constitution, are constitutional."[24] Admittedly, Marshall also argued--as I do--that although "the spirit of an instrument, especially a constitution, is to be respected not less than its letter . . . the spirit is to be collected chiefly from its words."[25] But the fact remains: Marshall was far from the rigid originalist many claim.

Thomas Jefferson provides another example. Concededly, Jefferson was in Paris during the summer of 1787, so his views on the Constitution cannot be considered controlling. But, as a leading figure of the founding generation, and James Madison's friend and mentor, his insight into the Constitution is undeniably relevant. Jefferson wrote this to Samuel Kercheval in 1816:

Some men look at Constitutions with sanctimonious reverence, & deem them, like the ark of the covenant, too sacred to be touched. they ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment. I knew that age well: I belonged to it, and labored with it. it deserved well of it’s country. it was very like the present, but without the experience of the present: and 40. years of experience in government is worth a century of book-reading: and this they would say themselves, were they to rise from the dead. I am certainly not an advocate for frequent & untried changes in laws and constitutions . . . but I know also that laws and institutions must go hand in hand with the progress of the human mind . . . we might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.[26]

All this is not to say that contrary evidence tending to support originalism can't be found. It certainly can. But that's precisely the point: the historical record from the Founding generation is hardly as one-sided as originalists claim.

II. Professor Lamparello's "ideal" conception of originalism requires revising the constitutional text he claims to venerate.

Most of Professor Lamparello's essay presents garden-variety originalist arguments. But one downright surprising argument comes near the end, where he says that whenever a law is challenged under a constitutional provision reasonably susceptible of two or more interpretations--for example, the "cruel and unusual punishments" clause--"the ideal approach would be for the Court to defer to the coordinate branches" and uphold the law's constitutionality.

That argument reflects a shockingly limited perception of the proper role of the judiciary--one that's entirely atextual. The drafters easily could have written, for example, that "no act of Congress may be struck down as violative of the provisions of this Constitution, unless the act's unconstitutionality be clear and free from doubt." But, as Hamilton pointed out in The Federalist No. 78, the drafters said no such thing:

If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.[27]

For someone so concerned about judicial legislation, it is certainly odd for Professor Lamparello to invent constitutional rules out of thin air. And for someone so focused on the original public meaning of the Constitution, it is equally odd to advocate for an interpretive theory that faces such directly countervailing historical evidence.

Professor Lamparello's theory is also impractical and ahistorical. James Madison, the Father of the Constitution, pitched the Bill of Rights as a document that would make judges "guardians" of individual rights, just like Hamilton did in the passage excerpted above.[28] But if judges could only strike down a law when no reasonable person could defend the law's constitutionality, then how could the judiciary effectively guard citizens' rights in the ordinary case? After all, in what case can't one think of reasonable, good-faith arguments on both sides of a constitutional issue? If the Framers actually intended the judiciary to defer to the political branches whenever presented with two plausible, competing arguments, then why include these constitutional prescriptions in the first place? Wouldn't it be easier to simply say nothing and let the states legislate as they see fit?

III. Originalism, while theoretically attractive, does a poor job of constraining judges.

Originalism hails itself as the best way to constrain judges. Critics have long questioned that claim, too.

To see why, consider District of Columbia v. Heller.[29] In Heller, both the majority and dissenting opinions cited historical evidence supporting their constitutional interpretation of the Second Amendment. Fourth Circuit Judge J. Harvie Wilkinson III has argued that, given the murky historical record in Heller, the Court should have stayed its hand and declined to strike down the District of Columbia's handgun prohibition.[30] And as Judge Posner has noted, Judge Wilkinson's argument finds support from an unlikely source: Justice Scalia's treatise on legal interpretation.[31] In the Foreword of Justice Scalia's treatise, Judge Easterbrook says this:

Words don't have intrinsic meanings; the significance of an expression depends on how the interpretive community alive at the time of the text's adoption understood those words. The older the text, the more distant that interpretive community from our own. At some point the difference becomes so great that the meaning is no longer recoverable reliably. . . . [When that happens, the courts should] declare that meaning has been lost, so that the living political community must choose.[32]

This is a version of the judicial-restraint principle for which Professor Lamparello, Justice Scalia, and other originalists advocate. In Heller, Justice Scalia's reading of the Second Amendment's history was likely erroneous.[33] But even if the history is mixed, that should have led Justice Scalia to conclude that the relevant meaning had been "lost to the passage of time" and to entrust the answer to the living political community.[34] The "living political community" in Heller was the District of Columbia legislature. But, far from exercising the democratic "deference" Professor Lamparello advocates, the Court struck down the District of Columbia's gun-ownership prohibition.

And historical questions plagued more than just the Heller majority's holding. In a dictum, the Court explained the contours of the right it recognized:

[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[35]

As Professor Reva Siegel has persuasively argued, there is little historical evidence supporting this passage, and it actually contradicts the Second Amendment's textually enunciated purposes.[36] "In these passages," Professor Siegel concludes, "Justice Scalia seems to apply something other than an original 'public understanding' analysis."[37]

United States v. Eichman[38] provides another example of how originalism fails to constrain judges. In Eichman, Justice Scalia voted to strike down a federal statute outlawing the burning of the American flag.[39] To Scalia's credit, it was a vote against his political predilections. But it was certainly an odd ruling for an originalist. The governing constitutional provision--"Congress shall make no law . . . abridging the freedom of speech"[40]--says nothing about non-verbal forms of protest. And the eighteenth-century conception of the speech right was much narrower than our modern understanding. According to Blackstone, at common law, freedom of speech only forbade prior restraints on speech; it did not prohibit after-the-fact punishment of speech determined to be blasphemous, obscene, or seditious.[41] Thus, a First Amendment that bans prohibitions on flag burning is decidedly unoriginalist.

Apparently anticipating the objection raised in this Part, Professor Lamparello preemptively defends his position by arguing that "in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se." Is the truth so conveniently simple? Can we really shrug off as "bad judging" the remarkable methodological elasticity of originalism's leading champion? Or is it possible that the problem lies deeper below the surface?

* * *

To be sure, no theory of constitutional interpretation is perfect. But the manifold problems with originalism--too many to detail exhaustively in this short essay—lead me to question whether, as Professor Lamparello insists, originalism is the best we can do.

[1] See, e.g., District of Columbia v. Heller, 554 U.S. 570, 576 (2008).

[2] See U.S. Const. art. I, § 3, cl. 1.

[3] U.S. Const. amend. XIV, § 1.

[4] U.S. Const. amend. VIII.

[5] U.S. Const. amend. IV.

[6] See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 217 (1st ed. 2012) (hereinafter “Scalia & Garner, Reading Law) (approving of interpretive canon providing that “[a] preamble . . . is a permissible indicator of meaning”).

[7] U.S. Const. pmbl. (emphasis added).

[8] See also Furman v. Ga., 408 U.S. 238, 382 (1972) (reasoning that “[t]he standard itself remains the same, but its applicability must change as the basic mores of society change”).

[9] See, e.g., Slaughter-House Cases, 83 U.S. 36, 81 (1873).

[10] Women’s Suffrage in the U.S. by State, https://tag.rutgers.edu/wp-content/uploads/2014/05/suffrage-by-state.pdf (last visited June 20, 2023).

[11] Encyclopedia Britannica, Coverture, https://www.britannica.com/topic/coverture (noting that “[c]overture was disassembled in the United States through legislation at the state level beginning in Mississippi in 1839 and continuing into the 1880s”).

[12] 404 U.S. 71 (1971).

[13] U.S. Const. amend. VIII.

[14] Kennedy v. La., 554 U.S. 407, 419 (2008) (quoting Furman, 408 U.S. at 382).

[15] Trop v. Dulles, 356 U.S. 86, 101 (1958).

[16] Atkins v. Va., 536 U.S. 304, 311 (2002).

[17] Richard A. Posner, The Incoherence of Antonin Scalia, New Republic (Aug. 24, 2012), https://newrepublic.com/article/106441/scalia-garner-reading-the-law-textual-originalism (hereinafter “Posner, Incoherence”).

[18] Id.

[19] Id.

[20] Id.

[21] 19 U.S. 264 (1821).

[22] Id. at 383.

[23] 17 U.S. 316 (1819).

[24] Id. at 421 (emphasis added).

[25] Sturges v. Crowninshield, 17 U.S. 122, 202 (1819).

[26] Jefferson Quotes & Family Letters, https://tjrs.monticello.org/letter/1384 (last visited June 20, 2023).

[27] The Federalist No. 78 (Alexander Hamilton).

[28] The Bill of Rights: Its History & Significance, http://law2.umkc.edu/faculty/projects/ftrials/conlaw/billofrightsintro.html (last visited June 20, 2023).

[29] 554 U.S. 570 (2008).

[30] Posner, Incoherence.

[31] Id.

[32] Scalia & Garner, Reading Law at xxv.

[33] Posner, Incoherence (noting that “most professional historians reject the historical analysis in Scalia’s opinion”).

[34] Scalia & Garner, Reading Law at xxv.

[35] Heller, 554 U.S. at 626-27.

[36] See generally Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 Harv. L. Rev. 191 (2008).

[37] Id. at 200.

[38] 496 U.S. 310 (1990).

[39] Id. at 312.

[40] U.S. Const. amend. I.

[41] Posner, Incoherence.

June 20, 2023 in Appellate Advocacy, Appellate Court Reform, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Law School, Legal Ethics, Legal Profession, Religion, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Court opinions are more than soundbites

By Lance Caughfield

Like many of you, I read the Supreme Court’s recent decision in National Pork Producers Council v. Ross, 143 S. Ct. 1142 (2023) very carefully. Not just because the dormant commerce clause is cool, but because the various opinions offer an interesting insight into how the justices are aligning and thinking on different issues.

One comment in the majority opinion stood out to me as being particularly important. The Petitioners (and some courts) had read the language of prior Supreme Court cases very closely, and concluded that they had created an “almost per se rule” that a state law, neutral on its face, violates the dormant commerce clause “if the ‘practical effect’ of the law is to control” out-of-state prices. Ross, 143 S.Ct. at 1155 (quoting Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573, 583 (1986)).

The language of those cases was properly quoted by the Petitioners. However, Justice Gorsuch reminded us that “[T]he language of an opinion is not always to be parsed as though we were dealing with language of a statute.” Id. (quoting Reiter v. Sonotone Corp., 442 U.S. 330, 341 (1979)). Instead, he continued, our courts decide “cases and controversies,” and their opinions must be read with a careful eye towards context. Id.

This distinction was aptly summarized by the Ninth Circuit a few years ago: “Stare decisis is the policy of the court to stand by precedent . . . . [T]he word ‘decisis’ . . . means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not ‘to stand by or keep to what was said.’” In re Osborne, 76 F.3d 306, 309 (9th Cir. 1996). Using this principle, the court was able to determine an issue when there were prior cases with directly conflicting language, by looking at what those cases did.

So, we are supposed to read opinions like opinions – they apply the law to specific cases, and all we can conclude is that in that particular case, the law has a given result. The rest is Socratic – we move the goalpost a bit, analyze the legal principles under changed facts, and argue that these facts should have a result favorable to our client under the stated principles, while our opponent tests that reasoning, and the court tries to find the best answer.

Why, then, do we focus so much on quotes and soundbites? Well, for one thing, it is easier. But that is too simple of an answer.

There are actually several reasons why we are susceptible to soundbites. See Judith M. Stinson, Why Dicta Becomes Holding and Why it Matters, 76 Brook. L. Rev. 219 (2010). As Professor Stinson suggests, electronic research means we focus in on specific words and phrases in our research, which then supports their usage in our reasoning. The rise of the use of law clerks may also impact the court’s focus on words. Changes to citation rules encourage soundbites and quotes. And our culture is increasingly a “meme” based culture, relying on quick soundbites to convey ideas.

Whatever got us here, Ross is a good reminder that finding that right quote doesn’t mean you’ve found the right law. We have to parse through, carefully, what the courts have done in a particular situation, not just the words they have used.

This isn’t a job AI (currently) can do. AI will find (or generate) the soundbite, but it can easily miss the holding. It takes a lawyer to reason through the facts and suggest how they should apply in a given case or controversy. If you just rely on soundbites, you might miss the decisis for the dicta.

(image credit: Honoré Daumier, A travers les ateliers, 1862).

June 20, 2023 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Sunday, June 18, 2023

Originalism, Not What It’s Cracked Up to Be

The quest for an interpretative construct that would produce principled decisions in construing the Constitution is an impossible dream, a chimera presuming that there lies a single best answer. The search for a singular approach that answers all questions seeks to implement what Justice Brandeis once described as the appropriate approach to the judicial enterprise: “we must be ever on our guard, lest we erect our prejudices into legal principles.”[1] Those engaged in the debate about various schools of interpretation latch onto one or another theory and often claim that it, above all others, reads the Constitution correctly. Yet, in the end, no theory can prevent us from imbuing our constitutional constructions with the biases and the limitations on knowledge that draw us to a particular result, just as history’s meaning is read differently throughout the ages.

Last week, a colleague on this blog claimed that originalism provided the best approach to interpreting the Constitution. In his post, Adam Lamparello argues that “originalism, although not perfect, is the best method of constitutional interpretation.” This dubious proposition operates under the assumption that the Framers shared a consistent view of what the Constitution meant, even when applied to situations they never could have imagined. And it erroneously presumes that the Framers’ collective views are knowable and, if consulted, leads to valid conclusions capable of avoiding either judicial adventurism or the reading of modern values into the Constitution. Experience teaches otherwise.

Originalism is no less outcome-oriented than any other theory of construction.

The “originalist” decision in New York State Rifle & Pistol Ass’n, Inc. v. Bruen,[2] like its building-block predecessor, District of Columbia v. Heller,[3] demonstrates that originalism does nothing more to prevent results-driven decision-making than the approach taken by the Queen of Hearts in Alice-in-Wonderland when she demands “Sentence first–verdict afterward.”[4] Bruen’s author, Justice Thomas, had long taken the position that judicial decisions had erroneously treated the Second Amendment as a “second-class right.”[5] When presented with an opportunity to make his view the law of the land, he wrote an opinion that carefully chose only favorable historical sources that supported his result, while rejecting the value of other available choices that would have confounded the decision. History, however, is messy and rarely as one-sided as Bruen makes it out to be.

In dissent, Justice Breyer called out the problem, noting, “[a]t best, the numerous justifications that the Court finds for rejecting historical evidence give judges ample tools to pick their friends out of history’s crowd. At worst, they create a one-way ratchet that will disqualify virtually any ‘representative historical analogue,’” producing only one favored result.[6]

Justice Scalia’s revisionist view of the Second Amendment, which he justified as originalist, set the stage for Bruen 14 years earlier in Heller when the Court held that the right to bear arms was an individual right unconnected to the introductory phrase, “a well regulated Militia.”[7] Conservative Fourth Circuit Judge J. Harvie Wilkinson criticized Heller for pressing a “political agenda in the courts.”[8] Most tellingly, Judge Wilkinson added, “While Heller can be hailed as a triumph of originalism, it can just as easily be seen as the opposite--an exposé of original intent as a theory no less subject to judicial subjectivity and endless argumentation as any other.”[9]

In fact, Justice Scalia, the leading advocate of originalism in his day, professed that he was a “faint-hearted originalist,” unwilling to go where originalism might take him if the result was absurd, so he would not uphold flogging as a punishment[10] or racial segregation.[11] In an interview with NPR, he jocularly explained his deviations from originalism as simply because he is “not a nut.”[12] As one of the grand apostles of originalism, Justice Scalia’s faintheartedness runs counter to the idea that originalism limits judicial discretion that relies on modern sensibilities.

The examples chosen fail to support the purpose behind originalism.

Professor Lamparello argues that originalism must cabin judicial choice because it has shown itself to cause conservative justices to reach “liberal” results. His examples do not support his thesis. He cites Texas v. Johnson,[13] which he notes had “Justice Scalia in the majority.” Johnson, though, was written by Justice Brennan and held that burning an American flag as a protest could not be punished for the crime of “desecration of a venerated object” consistently with the First Amendment’s protections. The decidedly non-originalist opinion was joined in full by Justice Scalia, who did not write separately to proffer an originalist rationale. The decision thus says nothing about originalism and everything about modern understandings about free speech.

Professor Lamparello’s second example is an odd choice, Justice Scalia’s much-criticized opinion in Employment Div. v. Smith,[14] a case that hardly represents a “liberal” result. The dissenters were the Court’s most liberal members, Justices Blackmun, Brennan, and Marshall. Smith reduced the constitutional protection afforded to religious practices in the context of members of the Native American Church and their use of peyote as a sacrament. Moreover, there is nothing originalist in Justice Scalia’s reasoning. It consists entirely of distinguishing modern precedents in a manner that Justice O’Connor found “dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.”[15]

His final example, Bostock v. Clayton Cnty.,[16] also fails for multiple reasons. First, rather than be an example of constitutional construction, Bostock interpreted a statute, Title VII. Justice Scalia was not an originalist when it came to statutes. He refused to consider congressional debates or legislative history, relying instead on statutory text,[17] which is the same approach that Justice Gorsuch took in writing Bostock. An originalist would have cared what the drafters of Title VII meant; the majority in Bostock did not care. The dissenters cared, though. Justice Alito’s dissent accused the majority of legislating from the bench and inventing a meaning to the word “sex” to include sexual orientation” that was unimagined in 1964 when the law passed.[18] In colorful language, Justice Alito called the opinion a “pirate ship” that “sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[19] Thus, Bostock provides no support for Professor Lamparello’s thesis.

Nor does the absence of direct language on various issues mean that the Constitution has nothing to say about them. For example, the phrase “separation of powers” appears nowhere in the Constitution. Nor does the authority to establish a national bank. Yet, even in the founding period, both were understood to flow from constitutional principles.

There is a compelling case that the framers disfavored originalism.

Justice Robert Jackson put forth a standard critique of originalism when he wrote that “[j]ust what our forefathers did envision, or would have envisioned had they foreseen modern conditions, must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharoah.”[20] That is perhaps why Professor Ronald Dworkin said that “there is no such thing as the intention of the Framers waiting to be discovered, even in principle. There is only some such thing waiting to be invented.”[21]

Frequently, originalists seek the views of James Madison, as the most important of the framers. In a revealing joke about the Father of the Constitution’s hallowed status, Justice Alito chided Justice Scalia for questions seeking an originalist answer during oral argument in Brown v. Entertainment Merchants Ass’n.[22] Rephrasing his colleague’s question, Justice Alito said, “what Justice Scalia is asking is what did James Madison think about video games. . . . Did he enjoy them?”[23]

If Madison’s views help define originalism, it is significant that he disfavored singular reliance on that approach. During the congressional debate over the Jay Treaty, members of Congress sought to resolve their differing views on a relevant constitutional question by turning to Madison, who was then serving in that body. He found the inquiry “a matter of some surprise.”[24] He told his colleagues that he could neither reconstruct his “own ideas at that period, [nor] . . . the intention of the whole body; many members of which, too, had probably never entered into the discussions of the subject.”[25] Where delegates had strong views, Madison said they were often in disagreement, but willing to accept language susceptible of different results when debates took place in the future. For that reason, he concluded by telling his colleagues that “whatever veneration might be entertained for the body of men who formed our Constitution, the sense of that body could never be regarded as the oracular guide in expounding the Constitution.”[26]

Given that Madison kept the best notes on the debates at the Constitutional Convention, which could have shed light on interpreting the Constitution in its earliest days, but withheld publication until after all the other framers had passed away,[27] and that Madison rejected any idea that the framers’ views should be deemed authoritative, a strong case can be made that the intent of the framers was that their views should not be controlling.

Instead, as Chief Justice Taft observed, those who wrote the Constitution “were born and brought up in the atmosphere of the common law, and thought and spoke in its vocabulary.”[28] They celebrated jurists like Lord Coke, who some four centuries after it was first promulgated, re-read Magna Carta as a source of rights that later appealed to the American colonies.[29] The framers understood the wisdom of his common-law approach to interpretation, which allowed them to stand on the shoulders of all those who came before them, enjoying and for posterity to stand on their own shoulders, thereby enjoying the benefits of a surfeit of views.[30] Inevitably, whatever lessons may be drawn from originalism, or any other interpretative methodology, we read the past, as we read precedents, through the lens of what we know and understand today. No canon of construction can overcome that built-in, even as we strive to achieve Brandeis’s admonition against reading our prejudices into legal principles.

[1] New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis, J., dissenting).

[2] 142 S. Ct. 2111 (2022).

[3] 554 U.S. 570 (2008).

[4] Lewis Carroll, Alice in Wonderland, ch. XII, https://www.gutenberg.org/files/11/11-h/11-h.htm#chap12.

[5] See Friedman v. City of Highland Park, 577 U.S. 1039, 136 S. Ct. 447, 450 (2015) (Mem.) (Thomas, J., dissenting from denial of cert.).

[6] Bruen, 142 S. Ct. at 2180 (Breyer, J., dissenting).

[7] U.S. Const. amend. II.

[8] J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 254 (2009).

[9] Id. at 256.

[10] Antonin Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 864 (1989).

[11] For a description of why Justice Scalia’s explanation of why Brown v. Board of Education was correctly decided on originalist grounds lacks the originalist rigor he often championed and, in reality, was a product of modern sensibilities, see Ronald Turner, A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board of Education, 60 UCLA L. Rev. Discourse 170 (2014).

[12] Nina Totenberg, “Justice Scalia, the Great Dissenter, Opens Up,” (Apr. 28, 2008), https://www.npr.org/2008/04/28/89986017/justice-scalia-the-great-dissenter-opens-up.

[13] 491 U.S. 397 (1989).

[14] 494 U.S. 872 (1990).

[15] Id. at 891 (O’Connor, J., concurring).

[16] 140 S. Ct. 1731 (2020).

[17] Antonin Scalia, A Matter of Interpretation 29-30 (1997).

[18] Id. at 1755 (Alito, J., dissenting).

[19] Id. at 1755-56 (Alito, J., dissenting).

[20] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 634 (1952).

[21] Ronald Dworkin, A Matter of Principle 39 (1985).

[22] 564 U.S. 768 (2011).

[23] Oral Argument Transcript, Brown v. Entertainment Merchants Ass’n, No. 08-1448 https://www.oyez.org/cases/2010/08-1448.

[24] 5 Annals of Cong. 775 (Apr. 6, 1796).

[25] Id.

[26] Id. at 776.

[27] James Madison, Notes of Debates in the Federal Convention of 1787 viii-ix ((1984 reprint).

[28] Ex Parte Grossman, 267 U.S. 87, 109 (1925).

[29] Coke was “widely recognized by the American colonists ‘as the greatest authority of his time on the laws of England.’” Payton v. New York, 445 U.S. 573, 594 (1980). See also Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 29 (1991) (Scalia, J., concurring) (recognizing Coke’s unrivaled influence on American constitution writers).

[30] See Robert S. Peck, The Bill of Rights and the Politics of Interpretation 183-203.(1992).

June 18, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, June 11, 2023

The Supreme Court and Originalism

[1] Kagan: 'We Are All Originalists' - The BLT: The Blog of Legal Times (typepad.com)

Justice Elena Kagan once stated, when referring to the justices on the Court, that “we are all originalists.”[1] She is right. Originalism, which has many variations, is the predominant interpretive theory in American constitutional law – and for good reason.

Below are a few reasons why originalism, although not perfect, is the best method of constitutional interpretation.

1. Originalism focuses on process, not outcomes.

Originalism, when properly applied, ensures the integrity of the judicial decision-making process, and eschews a focus on whether the outcome of a decision is politically or personally desirable. This is not to say, of course, that judges should never consider outcomes, or the consequences of their rulings when deciding a case (and when the text reasonably supports such outcomes). It is to say, however, that judges should not base decisions on whether the outcome is consistent with their subjective values or policy predilections. As Justice Neil Gorsuch stated:

Of course, some suggest that originalism leads to bad results because the results inevitably happen to be politically conservative results. Rubbish. Originalism is a theory focused on process, not on substance. It is not “Conservative” with a big C focused on politics. It is conservative in the small c sense that it seeks to conserve the meaning of the Constitution as it was written. The fact is, a good originalist judge will not hesitate to preserve, protect, and defend the Constitution’s original meaning, regardless of contemporary political consequences.[2]

Furthermore, as Justice Gorsuch noted, even if “originalism does lead to a result you happen to dislike in this or that case,” that should not matter because “[t]he “judicial Power” of Article III of the Constitution isn’t a promise of all good things.”[3]

2. Originalism leads to conservative and liberal results because the focus is primarily on the legitimacy of the decision-making process, not on reaching outcomes that reflect the justices’ subjective values.

When originalism is properly applied, it leads to conservative and liberal results because the justices are focused on interpreting the text, not reaching outcomes that comport with their policy preferences. As Justice Gorsuch explained:

Justice Gorsuch is exactly right. In Texas v. Johnson, for example, the Court, with Justice Scalia in the majority, held that the First Amendment protected the right to burn the American flag.[5] In Employment Division v. Smith, Justice Scalia held that generally applicable laws that only incidentally affect religious practices did not violate the Free Exercise Clause.[6] In Bostock v. Clayton County, Justice Gorsuch, an originalist, held that Title VII protects gay and transgendered employees from discrimination.[7]

And Justice Scalia's Fourth Amendment and Confrontation Clause jurisprudence shows that originalists reach outcomes that most living constitutionalists -- and liberals -- would support. Thus, originalism cannot be categorized as simply a tool for a conservative majority to implement a political agenda.

3. Originalism focuses on the Constitution’s words and what the Founders understood those words to mean, not on vague formulations about a provision’s underlying purposes.

When interpreting a constitutional provision, originalists focus on the words – and what the Founders understood those words to mean – not the purposes of a constitutional provision.[8] And for good reason.

Determining the intent or purpose of a constitutional provision can be difficult, and even where it is ascertainable, it may not guide judges to an outcome that reflects a reasonable interpretation of the text. After all, a constitutional provision can have more than one purpose. How is a judge to quantify these purposes and decide which purpose should have priority over another? And at what level of generality – or specificity – do you define that purpose? Moreover, how should an alleged purpose be applied in a specific case, and given how broadly a purpose can be interpreted, how can it be applied without involving a judge’s subjective values? Put differently, a focus on a provision’s underlying purposes can unmoor judges from the Constitution’s text and, as Justice Scalia emphasized, leave them “at sea” where nothing but their personal values guide the way.[9] That is a prescription for judging of the most politicized and untenable kind.

Lest there be any doubt, recall the “sweet mystery of life” passage where the majority in Planned Parenthood v. Casey stated, “[a]t the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.”[10] That passage is precisely what living constitutionalism, which states that the Constitution’s meaning changes over time, produces: a lot of nothing – except maybe those invisible penumbras that the Court, in Griswold v. Connecticut, invented out of thin air, and from which it created unenumerated constitutional rights.[11]

4. Originalism constrains judges and promotes democratic governance.

Courts should protect vigorously the express and implied rights enunciated in the Constitution. For example, the Sixth Amendment right to counsel can certainly be interpreted to include the right to effective assistance of counsel. But courts should not invent rights out of thin air that have no grounding in a reasonable interpretation of the text and that remove important social and political issues from the democratic process. Originalism is the best way to prevent this type of judicial overreach.

Think about it: where in the Constitution is there a right to abortion?[12] Where in the Constitution does it say that a state cannot authorize the death penalty for child rape?[13] Where in the Fourteenth Amendment’s Due Process Clause, which protects citizens from being deprived of life, liberty, or property without due process of law, is there a substantive right to privacy (or any substantive rights whatsoever)?[14] Where in the Constitution does it say that a person under the age of eighteen cannot be sentenced to death for murder or sentenced to life imprisonment?[15] Where in the Constitution does it say that, when you provide personal information to third parties, you surrender all privacy rights in that information?[16] Where in the Constitution does it say that you do not have a right to assisted suicide, or suicide generally?[17] And what about the right to polygamy? Can that be found somewhere in the Constitution?

No.

And where are the rights that the Court recognized in Griswold and in Roe located in the Constitution?

Nowhere.

That’s why when the Court answers these questions, it is acting arbitrarily and basing its decisions on little more than the justices’ subjective values. Why, though, do the justices’ values or policy preferences matter more than every American citizen? And why should nine unelected and life-tenured justices be inventing rights for an entire nation? As Justice Scalia argued, “[i]f the constitution is not an ordinary law but rather this empty bottle into which each generation is going to pour the liquid that it desires, why should the bottle be filled by nine unelected judges?”[18] After all, when deciding whether a punishment is “cruel and unusual,” why should citizens trust nine unelected justices to determine what punishments are consistent with “evolving standards of decency that mark the progress of a maturing society?”[19] And what does that even mean?[20]

When judges have this kind of power, democracy is truly in danger. Of course, many will agree with the outcomes that the Court reached in these and other cases. But that is not the point. What should trouble citizens of every political persuasion is that the process by which these outcomes were reached had nothing to do with the Constitution. Instead, they originated from those invisible “penumbras” that Griswold invented and that any legitimate constitutional would find illegitimate. That, in a nutshell, is the problem with living constitutionalism. It allows judges to do whatever they want for whatever reason they want.

To be sure, decisions such as Roe, Kennedy, and Roper did not result from a principled interpretation of the Constitution. They happened because, at the time, the political affiliations of the justices were more liberal than conservative. And while many celebrated those decisions, they failed to consider that what the Court gives, it can take away whenever it wants. Indeed, the moment that you embrace living constitutionalism as a basis to create unenumerated rights, those rights are contingent on the whims of the justices and the justices’ respective political affiliations at a given moment in time. Lest there be any doubt, look no further than Dobbs v. Jackson Women’s Health, where the Court overturned Roe and other precedents, suddenly discovering that the Constitution does not protect a right to abortion.[21] The only reason the Court overturned Roe was because there were more conservative justices on the Court. It was not because the Court suddenly gained new insight into constitutional meaning. Rather, it demonstrated that the foundation for constitutional rights is more political than principled.

This reduces constitutional meaning to little more than what the justices think it means – based on their political affiliations and subjective values – and with no regard to what you think it should mean. It is difficult to imagine fundamental rights with a more flimsy and arbitrary foundation. Simply put, the creation of unenumerated rights should occur through the legislature, not the courts, and the people, not nine unelected and life-tenured justices, should identify the unenumerated rights to which all citizens in a particular state are entitled.

5. When judges have unchecked power or rely on their subjective values to reach decisions, it often leads to unjust outcomes.

Living constitutionalism, which states that the meaning of the Constitution changes over time, can lead to terribly unjust outcomes. As Justice Gorsuch states:

Virtually the entire anticanon of constitutional law we look back upon today with regret came about when judges chose to follow their own impulses rather than follow the Constitution’s original meaning. Look, for example, at Dred Scott and Korematsu. Neither can be defended as correct in light of the Constitution’s original meaning; each depended on serious judicial invention by judges who misguidedly thought they were providing a “good” answer to a pressing social problem of the day. A majority in Korematsu, unmoored from originalist principles, upheld the executive internment without trial of American citizens of Japanese descent despite our Constitution’s express guarantees of due process and equal protection of the laws. A majority in Dred Scott, also disregarding originalist principles, held that Congress had no power to outlaw slavery in the Territories, even though the Constitution clearly gave Congress the power to make laws governing the Territories. In both cases, judges sought to pursue policy ends they thought vital. Theirs was a living and evolving Constitution.[22]

Indeed, “as Korematsu and Dred Scott illustrate, the pursuit of political ends through judicial means will often and ironically bring about a far worse result than anticipated—a sort of constitutional karma.”[23] The Court’s decision in Dobbs is a testament to this fact.

Furthermore, consider that those who support living constitutionalism so conveniently happen – in nearly every case – to be liberal. Why is that? Because they want the Court to reach outcomes that they believe are morally correct, and they want to politicize and use the Court to make policies that properly belong to the legislative process. To be sure, when was the last time that you encountered a liberal professor who was an originalist?

6. Originalism is best suited to deal with constitutional ambiguity.

A significant problem when interpreting the Constitution is the fact that some provisions in the Bill of Rights contained broad language that is subject to reasonably different interpretations. For example, the Eight Amendment prohibits “cruel and unusual” punishment, and the Fourth Amendment prevents law enforcement from conducting unreasonable searches and seizures.

In the face of this ambiguity, the ideal approach would be for the Court to defer to the coordinate branches when reasonable people could disagree regarding a law’s constitutionality. For example, in Clinton v. New York, the Constitution’s Presentment Clause did not clearly support the conclusion that the line-item veto was unconstitutional.[24] Thus, why did the Court invalidate a law that was designed to reduce wasteful government spending? And in Citizens United v. FEC, the First Amendment’s text certainly did not answer the question of whether Congress’s law limiting independent expenditures was permissible.[25] Thus, why did the Court, including several originalists, invalidate a law that sought to reduce undue influence in the political process? That’s a great question.

In short, the answer to ambiguity is not living constitutionalism. It is deference. And when the Court does decide cases where a provision is ambiguous, originalism is the best, although certainly not perfect, approach because, at the very least, originalists will attempt to discern what the Founders understood the words to mean rather than basing decisions on subjective values.

***

Originalism is not perfect, and in some circumstances, judges do rely on originalism to reach outcomes that coincide with their policy preferences. However, that reflects bad judging, not problems with originalism per se. And in the final analysis, originalism, when applied faithfully, limits judicial power and respects constitutional constraints on that power.

Ultimately, as Justice Scalia stated, “[y]ou either adopt originalism or essentially you say to your judges, ‘Come govern us.’”[26] Put differently, the Constitution does not give courts the authority to “change meaning from age to age to comport with whatever the zeitgeist thinks appropriate.”[27] And when scholars base their opinion of the Court – or of interpretive methods – on whether they agree with a decision, they are politicizing the Court and contributing to the delegitimization of the judiciary.

[2] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[3] Id.

[4] Id.

[5] 491 U.S. 397 (1989)

[6] 494 U.S. 872 (1990)

[7] 590 U.S. , 140 S. Ct. 1731 (2020). Additionally, originalism can and does support invalidating bans on interracial and same-sex marriage.

[8] See Pete Williams, Scalia: Judges Should Interpret Words, Not Intent (Aug. 22, 2012), available at: Scalia: Judges should interpret words, not intent (nbcnews.com)

[9] U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009), available at:

U.S. Supreme Court Justices Antonin Scalia & Stephen Breyer Conversation on the Constitution (2009) - YouTube

[10] 505 U.S. 833(1992).

[11] 381 U.S. 479 (1965).

[12] See Roe v. Wade, 410 U.S. 113 (1973).

[13] See Kennedy v. Louisiana, 554 U.S. 407 (2008).

[14] See Griswold v. Connecticut, 381 U.S. 479 (1965); U.S. Const., Amend XIV.

[15] See Roper v. Simmons, 543 U.S. 551 (2005).

[16] Smith v. Maryland, 442 U.S. 735 (1979).

[17] Washington v. Glucksberg, 521 U.S. 702 (1997).

[18] Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com

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

[20] This is not to say that the Court’s decisions in Griswold, Roe, and Roper did not reach good outcomes. The problem is that it took making bad constitutional law to reach those outcomes.

[21] 597 U.S. , 2022 WL 2276808 (June 24, 2022).

[22] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[23] Joe Sohm, Neil Gorsuch: Why Originalism is the Best Approach to the Constitution (Sept. 6, 2019), available at: Why Originalism Is the Best Approach to the Constitution | Time

[24] 524 U.S. 417 (1998).

[25] 558 U.S. 310 (2010).

[26] Dennis Vandal, Supreme Court Justice Antonin Scalia Rejects Idea of ‘Living Constitutionalism,” (Dec. 10, 2012), available at: Supreme Court Justice Antonin Scalia rejects idea of 'Living Constitution' - nj.com

[27] Id.

June 11, 2023 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Law School, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, June 4, 2023

Supreme Court Rules Purely Legal Issues from Summary Judgment Remain Available for Appeal

Federal law limits appeals to “final decisions of the district courts.” 28 U.S.C. § 1291. The limitation on reviewing final dispositions presupposes that an appeal of a final judgment “brings up all antecedent issues,” In re Kilgus, 811 F.2d 1112, 1115 (7th Cir. 1987), including all interlocutory orders. Kurowski v. Krajewski, 848 F.2d 767, 772 (7th Cir. 1988).

Even so, the circuits were split over whether purely legal claims denied at summary judgment were reviewable on appeal after a jury trial even though the claims were not reasserted in a post-trial motion. With last week’s unanimous decision by the Supreme Court in Dupree v. Younger, No. 22-210, there is no requirement that the claims be reasserted.

In the case, Respondent Kevin Younger sued a Maryland correctional officer for permanent injuries he suffered from three guards allegedly under orders to attack him while in pretrial detention. The complaint accused Petitioner Neil Dupree of issuing the order.

Dupree moved for summary judgment, arguing that Younger was obliged to exhaust administrative remedies before suing. The district court denied the motion because the state prison system had concluded an internal investigation of the assault. Besides, the guards were convicted of the assault.

Dupree did not present evidence on his exhaustion defense at trial. The jury found Dupree and his codefendants liable and awarded $700,000 in compensatory damages. Dupree did seek a post-verdict renewed motion for judgment as a matter of law. When he appealed based on the failure-to-exhaust issue, the Fourth Circuit dismissed his appeal based on its own precedent that requires preservation of summary-judgment issues through a post-trial motion.

The Supreme Court’s decision by Justice Amy Coney Barrett held that no post-trial motion is necessary to preserve the issue for appeal if summary judgment was based on a purely legal ruling because those decisions are not superseded by subsequent case developments. The Court distinguished summary judgment based on the sufficiency of the evidence, because the record becomes further developed at trial. Moreover, an appellate court derives no benefit from presenting the legal issue to the district court a second time after trial because it cannot be expected that something at trial would have changed the court’s mind on an issue for which facts are immaterial.

In vacating and remanding the case to the Fourth Circuit, the Supreme Court left it to the lower court to determine whether administrative exhaustion is a fact-dependent issue and thus eligible for appeal without preservation.

The decision has clear practical importance, helping practitioners know whether the absence of post-trial motions dooms an appeal. The battle over whether the summary-judgment concerned a legal issue without evidentiary predicates now begins.

June 4, 2023 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, May 21, 2023

When Is a Judge Unfit, and What Can be Done About It?