Appellate Advocacy Blog

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

Sunday, August 29, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, August 29, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court struck a CDC moratorium on evictions during the pandemic. An earlier nationwide moratorium lapsed on July 31, prompting the CDC to impose its own moratorium. This CDC moratorium temporarily halted evictions in counties with “substantial and high levels” of virus transmissions. The Court’s decision allows evictions to resume. The decision held that the CDC lacks the authority to act without explicit congressional authorization and ruled that, “[i]f a federally imposed eviction moratorium is to continue, Congress must specifically authorize it.” See the per curium order and reports from the Associate Press, NPR, and The Washington Post.

  • The Supreme Court revived the previous administration’s “remain in Mexico” asylum policy, refusing to stay a ruling that banned the Biden administration’s attempt end the policy. The policy requires asylum seekers to remain in Mexico while they await hearings in the United States. The Court stated that the decision to end the policy appeared to be arbitrary and capricious. The decision leaves in place the lower court’s ban, which will be heard by an appeals court. See the order and reports from Reuters, The New York Times, APNews, and NPR.

Appellate Court Opinions and News

  • In a rehearing on the issue, the Second Circuit let stand a lower court’s refusal to grant an injunction against anti-abortion protestors, finding that the district court did not abuse its discretion. New York State sued 13 protestors arguing that protesters crowded women, made death threats against escorts, and blocked the path with posters, which violated the Freedom of Access to Clinic Entrances Act, New York State Clinic Access Act, and New York City's Access to Reproductive Health Care Facilities Act. The district decision rejected the injunction motion, finding that the state had not shown that it would face irreparable harm. The panel on rehearing did not rule on the merits because it found that the lower court did not abuse its "considerable discretion" in denying the injunction. See the order and reports from Reuters and Courthouse News.

  • The Ninth Circuit affirmed a lower court’s ruling that denied a motion for preliminary injunction by a landlord group attempting to stop Los Angeles from enforcing an eviction moratorium. The court determined that the group could not show a likelihood of success on the merits, finding that, “even if the eviction moratorium was a substantial impairment of contractual relations,” the city “fairly tied the moratorium to its stated goal of preventing displacement from homes” during a pandemic. See order and reports from Bloomberg and The California Globe.

  • The Fourth Circuit affirmed the death sentence for the gunman who killed nine members of a Black Charleston church in a racially motivated shooting. The court stated that “[n]o cold record or careful parsing . . . can capture the full horror of what [the shooter] did” and that “[h]is crimes qualify him for the harshest penalty that a just society can impose.” The court rejected the argument that the gunman should have been ruled incompetent. The gunman is the first person in the US to be sentenced to death for a federal hate crime. See the ruling and reports from NPR, The Washington Post, and USA Today.

Effective Appellate Advocacy

On September 2, the Ninth Circuit and the Federal Bar Association are sponsoring a free program featuring Judge Margaret McKeown.  Judge McKeown will discuss effective brief writing and oral argument. Find information here



August 29, 2021 in Appellate Advocacy, Appellate Practice, Federal Appeals Courts, Oral Argument, United States Supreme Court | Permalink | Comments (0)

What To Do When Faced With Adverse In-Circuit Precedent

In my last post, I reviewed arguments employed in three different Supreme Court briefs seeking reconsideration of three separate precedents. The arguments attempted there in favor of overruling precedent as unworkable are equally applicable to adverse in-circuit precedents.

In the federal circuits, however, the process usually requires two-steps: first, an argument before the usual three-judge panel; and, second, upon the granting of a petition, argument en banc. The double argument occurs because one panel cannot overrule a prior panel’s precedential holding.[1] In the Eleventh Circuit, this practice is known as the “prior panel precedent rule.”[2] Some state courts of appeal follow the same rule.[3] Yet, other states permit one panel to overrule an earlier one on the same issue, but advise that it is an authority that should be exercised reticently.[4]

The Fifth Circuit has dubbed the practice the “rule of orderliness,” which holds that “one panel of our court may not overturn another panel’s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.”[5] It also means that, “to the extent that a more recent case contradicts an older case, the newer language has no effect.”[6]

If an advocate is unable to distinguish the prior precedential holding, part of the argument before the initial panel must suggest the problematic decision is wrong and warrants rehearing en banc for purposes of reconsideration. A panel’s opinion, or even a judge’s dissent, that suggests the precedent was wrongly decided, even when those judges are obliged to follow it, provides a substantial boost to a petition for rehearing en banc.

Still, not every unfavorable in-circuit decision qualifies as controlling precedent. Even where a case is not otherwise distinguishable, it may be possible to characterize the prior decision’s problematic passage as obiter dicta. In those circumstances, the contrarian language “could have been deleted without seriously impairing the analytical foundations of the holding and being peripheral, may not have received the full and careful consideration of the court that uttered it.”[7] For example, if no party briefed and argued the point, the panel was deprived of arguments that might have caused it to avoid the issue or decide it differently. For that reason, there were no analytical foundations, and the dicta is not binding.[8]

State courts, too, hold that dicta is not binding. In California, for example, “dictum is a general argument or observation unnecessary to the decision which has no force as precedent.”[9] Instead, only the ratio decidendi, the “principle or rule which constitutes the ground of the decision,” serves as stare decisis.[10] Under that approach, a “decision is not authority for what is said in the opinion but only for the points actually involved and actually decided.”[11]

Recently, that same issue of what constituted stare decisis came up in the U.S. Supreme Court. In Ramos v. Louisiana,[12] the Court was asked to overrule cases that held the Sixth Amendment right to jury trial did not require a unanimous verdict to convict a defendant of a serious offense. Instead of overruling the earlier precedents, it abrogated them. The majority opinion by Justice Gorsuch denied that the earlier decisions constituted precedent because the result was the product of a fragmented Court. That characterization generated some controversy. Justice Kavanaugh, another member of the majority, vocally treated the prior decision as precedent, but precedent that deserved to be overruled. The dissenters insisted that adherence to stare decisis was necessary, even if they might have reached a different decision if the issue was first being presented.

The bottom line is that there are a variety of tools available to an advocate who finds an adverse precedent in the way of a favorable result. Understanding the concerns that a court has expressed and the rules it follows can provide a blueprint for building that case. And, sometimes, when you notice disagreement within the U.S. Supreme Court about what constitutes binding precedent, a door may open to some arguments a lower appellate court has not previously considered.

 

[1] See, e.g., United States v. Salazar, 987 F.3d 1248, 1254 (10th Cir. 2021).

[2] Smith v. GTE Corp., 236 F.3d 1292, 1300 n.8 (11th Cir. 2001).

[3] See, e.g., Nat'l Med. Imaging, LLC v. Lyon Fin. Servs., Inc., No. 3D20-730, 2020 WL 5228979, at *1 n.2 (Fla. 3d D.C.A. Sept. 2, 2020).

[4] See, e.g., Roberts v. Roberts, 2014 UT App 211, ¶ 44, 335 P.3d 378, 391.

[5] Jacobs v. Nat'l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008).

[6] Arnold v. U.S. Dep’t of Interior, 213 F.3d 193, 196 n.4 (5th Cir. 2000).

[7] Int’l Truck & Engine Corp. v. Bray, 372 F.3d 717, 721 (5th Cir. 2004) (internal quotation marks and citation omitted).

[8] Bruce v. Estelle, 536 F.2d 1051, 1059 n.5 (5th Cir. 1976), cert. denied, 429 U.S. 1053 (1977).

[9] United Steel Workers of America v. Bd. of Ed., 162 Cal.App.3d 823, 834 (1984).

[10] Bunch v. Coachella Valley Water Dist., 214 Cal.App.3d 203, 212 (1989).

[11] Childers v. Childers, 74 Cal.App.2d 56, 61  (1946) (emphasis in original).

[12] 140 S. Ct. 1390 (2020).

August 29, 2021 in Appellate Advocacy, Appellate Practice, Appellate Procedure, Federal Appeals Courts, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Thursday, August 19, 2021

The Next Supreme Court Justice: A Case for Greater Diversity

For the Supreme Court, the question of the summer has been whether Justice Stephen Breyer will retire or remain on the Court. Aware that both racial and gender diversity have been historically lacking on the Court, President Biden has promised to nominate an African-American woman if Justice Breyer leaves. Although racial and gender diversity are the most important and most visible considerations in having a diverse Court, President Biden should consider other matters of diversity as well in selecting a nominee.

Racial diversity is a top priority. Only two African-Americans have sat on the Supreme Court, and neither has been a woman. One Hispanic, Justice Sonya Sotomayor, has been a member of the Court. But no Asians or Native Americans have served on the Court.

Gender diversity also is an essential consideration. When asked how many women on the Court would be enough, Justice Ruth Bader Ginsburg famously answered "nine." Although the Court has as many women now as it ever has had at one time, only five women have been justices in the history of the Court. 

The more diverse the Court is the more it will reflect the diversity of the nation. This will benefit the Court by adding different perspectives and by increasing the bar's and the general public's faith in the Court. But the president should not stop at just racial and gender diversity. In addition to race and gender, he should consider other attributes of a prospective justice: experience, geography, education, and religion.

Experience. Recent appointments to the Supreme Court have overwhelmingly come from federal appellate courts (the only current justice not to have been a federal appellate judge is Justice Elena Kagan, who was the Solicitor General before her appointment). The last state court judge appointed to the Court was Justice Sandra Day O'Connor (also the first woman on the Court), who had been on the Arizona Court of Appeals (and also in the state legislature). While it has been said that a federal judge is someone who knows a Senator and a state judge is someone who knows a Governor, there obviously are differences between the two. That being said, many cases come to the Supreme Court directly from the highest court of a state. Having a justice who has worked in a state court system would be a plus.

And who says that Supreme Court justices need to already be judges anyway? It has been quite a while since the appointment of a practicing attorney or academic without judicial experience.

Although Justice Sotomayor was a federal prosecutor, there also generally has been a lack of justices with criminal law experience. How about the appointment of a Public Defender to bring a different perspective?

Geography. It was essential in the early years of the Court that there be geographical diversity because the justices were required to ride the circuits. In recent memory, though, the Court has been the domain primarily of justices who either were from the Northeast or worked there a considerable portion of their careers. When Justice Ginsburg and Justice Antonin Scalia were on the Court, there were four justices from New York City (at least each was from a different borough).

There are two Southerners by birth currently on the Court, Justice Clarence Thomas (Georgia) and Justice Amy Coney Barrett (Louisiana). This is the most representation the South has had on the Court in recent memory. And the appointment of Justice Neil Gorsuch to the Court added a justice originally from a mountain state (Colorado), giving the Court that added perspective.

Although it no longer is necessary to have justices from different regions in order to ride the circuits, the Court best reflects the nation when it reflects the nation's geographic diversity. Further, some matters that come before the Court are unique to certain areas of the country. A justice from one of these areas would be able to contribute knowledge and perspective that other justices may lack.

Education. When Justice Barrett joined the Court, the dominance of Ivy League law schools in producing Supreme Court justices was diminished ever so slightly. Justice Barrett graduated from the University of Notre Dame law school, leaving an even split of law school alma maters among the other justices between Harvard University and Yale University. But it has been many years since any member of the Court has been a graduate of a public university's law school. There certainly must be excellent jurists from top public law schools like the University of California, the University of Michigan, and the University of Virginia who could be nominated. While diversity in law schools attended may not make much difference in perspective, it could help in dispelling the notion that the Court is elitist or somehow out of touch with those who are not.

Religion. Prior to Justice Gorsuch joining the Court, it was composed of six Catholic justices and three Jewish justices. Justice Gorsuch became the first Protestant on the Court since Justice John Paul Stevens. The Court has never had a Muslim justice or any justice who did not identify as Christian or Jewish, nor at least recently has it had a justice that did not identify with some religion. While religious affiliation does not necessarily produce monolithic perspective among justices (see, for instance, Justice Thomas and Justice Sotomayor, both Catholic), diversity in this area would increase confidence in the Court's decisions related to religious matters.

  ***

In the end, perfect diversity is neither required nor achievable. After all, the Court is not a representative body. Even so, the standing of the Court in the eyes of a more and more diverse citizenry would increase if it better reflected this increasing diversity. And the Court itself would benefit from greater diversity of experience, geography, education, and religion as it deals with the difficult and complex issues that come before it.

Although Justice Breyer may not retire this year, a new justice will be nominated sooner or later. When that happens, the President should consider a variety of diversity matters in addition to race and gender.

August 19, 2021 in Appellate Advocacy, Appellate Justice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, August 15, 2021

Requesting Reconsideration of Precedent

In rapid succession, the Supreme Court recently received three briefs asking it to overturn different precedents. The one that got widespread national attention was Mississippi’s brief in the high-profile case being heard next term, Dobbs v. Jackson Women’s Health Org.,[1] which asks the Court to overturn Roe v. Wade.[2] Then, on the heels of that brief, a petition for certiorari asked the Court to overrule Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics.[3] Soon afterwards, Oklahoma filed a petition seeking reconsideration of the Court’s one-year-old, 5-4 ruling in McGirt v. Oklahoma.[4]

The unusual spate of requested nullifications of existing precedent plainly reflects a calculation that the Supreme Court’s new majority is less tied to stare decisis than their predecessors. Still, each brief makes an effort to provide grounds why stare decisis should not insulate the targeted decisions from reassessment. A review of the arguments against simply following precedent provides lessons for appellate counsel confronting an unavoidable but adverse controlling decision.

To be sure, the doctrine of stare decisis remains a “foundation stone of the rule of law” and the “preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”[5] The Court has deemed that following precedent “is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than it be settled right.”[6] Still, stare decisis is not an “inexorable command” or “‘mechanical formula.’”[7] In constitutional cases, stare decisis has less gravitational pull because “correction through legislative action is practically impossible.”[8]

 Dobbs presents the politically voluble issue of abortion, which has percolated for years, dominated national politics at times, and influenced Supreme Court appointments and confirmations. The potential impact of the issue in the political arena is inseparable from the legal arguments made, simply because the conversations in both playing fields have merged. That happenstance probably allows counsel to undertake a more opinionated and overtly political argument than might be prudent in other cases, particularly when some of the justices have expressed similarly strong opinions on the relevant jurisprudence.

In that vein, Mississippi’s brief asserts that both Roe and the subsequent decision in Planned Parenthood of S.E. Pa. v. Casey,[9] “are egregiously wrong” and lack any “basis in text, structure, history, or tradition, leading to a hopelessly unworkable” legal framework. The brief’s unworkability argument is not a traditional one, though. In most instances, unworkability focuses on why an adopted test or stance fails to resolve recurring problems or issues. It asserts that the lower courts do not apply it consistently so that application of the precedent produces inconsistent results.

Mississippi’s brief frames its unworkability argument in terms of the frustration that States experience when they seek to end or heavily regulate abortion, blaming the application of heightened scrutiny when, it claims, rational-basis analysis should apply. The argument reminds a reader of the “heckler’s veto” in First Amendment law, because it relies on the sustained objections of opponents as a basis for claiming that the Court should recede from precedent. In this instance, it asserts that Roe and Casey have not contributed to a settled state of the law because they tend to block laws that Mississippi favors. In this brief, unworkability appears only as an obligatory nod. Mississippi’s argument really depends on justices’ agreeing that abortion should not receive constitutional protection so that laws restricting it are reviewed by the most deferential form of scrutiny.

Egbert v. Boule[10] seeks the abandonment of an equally longstanding precedent, Bivens, but one that has had a lower public profile. Still, it boasts a vocal set of opponents in government and academia. Bivens and its progeny implied a direct cause of action under the Constitution for federal officer violations of the Fourth and Eighth Amendments, as well as due process.  Yet, more recently, the Court has taken a narrowing view of Bivens and even suggested that the current Court would not have reached the same decision as the Bivens Court about implying a cause of action.[11]

The petition’s unworkability argument emphasizes the Ninth Circuit’s more expansive view of Bivens in the case submitted for review to show that Bivens is irreconcilable with more recent precedent and therefore provides an uncertain basis for implying a constitutional cause of action that the lower courts cannot uniformly apply. Coming in the context of a lawsuit against a Border Patrol agent stationed near the Canadian border for First and Fourth Amendment violations, the petition claims “that judicially crafted Bivens actions could skew agents’ decision-making about whether and how to investigate suspicious activities in carrying out their important national-security mission.” Playing to the jurisprudential predilections of a majority of the Court, the petition asks that it “bring this important area into line with the Court’s modern jurisprudence respecting the separation of powers and recognizing Congress’ primacy in creating causes of action.”

Oklahoma’s petition in Oklahoma v. Bosse[12] attempts a rare, though not unheard of feat: the overruling of a fresh precedent. Only last year, in McGirt, the Supreme Court held a large swath of Oklahoma remained part of the Muscogee (Creek) Reservation and subject to federal, not state, criminal law jurisdiction under an 1885 statute. What makes the Bosse petition credible was the immediate impact that McGirt had on future criminal prosecutions in Oklahoma, even if the effect on past prosecutions was expected.

The Bosse petition asserts that McGirt was wrong and has already had disastrous consequences, sending thousands of crime victims on a mercurial adventure to “seek justice from federal and tribal prosecutors whose offices are not equipped to handle those demands.” At the same time, it tells the justices that public safety is endangered as “crimes are going uninvestigated and unprosecuted,” confirming the worst fears of the McGirt dissenters.

The overruling of a recent Supreme Court decision, as Oklahoma seeks in Bosse, is not unprecedented. One prominent example occurred in the Flag Salute Cases. In 1940, the Supreme Court decided Minersville Sch. Dist. v. Gobitis, holding that a school district did not violate the rights of several schoolchildren who were expelled because they had religious objections to participating in the school’s morning flag-salute ceremony. Those objections led to accusations that Jehovah’s Witnesses, the religion of the expelled schoolchildren, were unpatriotic, releasing a wave of terrorism against its followers. The intolerance generated by the decision caused three members of the Gobitis majority to re-think their position. When joined by new appointee, the formerly 8-1 decision turned around to uphold a right to object to pledging allegiance as a right of conscience in West Virginia Bd. of Ed. v. Barnette.[13]  Remarkably, the new decision also ended the terroristic attacks on the Witnesses. Still, Bosse may have a higher climb than Barnette had to swing a member of the majority to the other side.

Each of these briefs demonstrate three things when asking a Court to overrule prior precedent. First, know your audience. If a court has expressed misgivings about a precedent, that become fodder for your request to abandon stare decisis. Second, explain why the precedent fails to achieve the stability that stare decisis is supposed to bring about. Third, make the consequences of staying with precedent seem as dire and bleak as possible. There is no guarantee that checking these boxes will bring about your desired result, but their absence almost guarantees failure. Advocates, no doubt, will watch developments in these cases closely to see if they succeed.    

 

[1] No. 19-1392, Br. for Petitioners (S.Ct. Jul. 22, 2021).

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

[3] 403 U.S. 388 (1971).

[4] 140 S. Ct. 2452 (2020).

[5] Payne v. Tennessee, 501 U.S. 808, 827 (1991).

[6] Id. (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, J., dissenting)).

[7] Id. at 828 (quoting Helvering v. Hallock, 309 U.S. 106, 119 (1940)).

[8] Id. (quoting Burnet, 285 U.S. at 407 (Brandeis, J., dissenting)).

[9] 505 U.S. 833 (1992).

[10] 21-147, Pet. for Certiorari (S.Ct. Jul. 30, 2021).

[11] Ziglar v. Abbasi, 137 S. Ct. 1843, 1856 (2017).

[12] No. 21-186, Pet. for Certiorari (S.Ct. Aug. 6, 2021).

[13] 319 US 624 (1943).

August 15, 2021 in Appellate Advocacy, Appellate Practice, Current Affairs, United States Supreme Court | Permalink | Comments (0)

Sunday, August 1, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, August 1, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • High School SCOTUS blog founder, Anna Salvatore, moderated "Reporting on the Supreme Court" this week. The event, presented by The Daily Princetonian and the American Whig-Cliosophic Society, featured panelists Chris Geidner, MSNBC columnist and previous legal editor at BuzzFeed; David Lat, Founder of Original Jurisdiction and Above the Law; and Kimberly Robinson, Supreme Court correspondent for Bloomberg Law.

  • Reuters posted a review of the Supreme Court’s “shadow docket” this week. Find it here.

  • A July Gallup poll reports a 49% approval rating for the Supreme Court, which is the first time since 2017 that the rating has been below the majority level. See the Gallup New report.

 Appellate Court Opinions and News

  • The Ninth Circuit reversed and remanded a district court ruling that had upheld California’s school closure during the pandemic. In reversing, the court held that the closing of private schools violated parents’ Due Process rights to determine the forum of their children’s education and determined that the closure ruling should be held to strict scrutiny. The court held that the “right of parents to make decisions concerning the care, custody, and control of their children is a fundamental liberty interested protected by the Due Process Clause,” which includes the right to choose the “educational forum itself.” See the opinion and a report from the LA Times.

  • The Sixth Circuit ruled that the CDC had exceeded its authority when it temporarily halted evictions during the pandemic. The CDC’s order replaced and expanded Congress’s 120-day moratorium on rental properties that participated in federal assistance programs or that had federally backed loans. Now set to expire on July 31, the CDC’s order applied to all rental properties nationwide.  See the order and reports from ABA Journal, The Hill, and Reuters.

  • The Tenth Circuit rejected a wrongful death claim against a Colorado recreation company and ruled that the lower court properly applied Colorado law to determine that the decedent had waived liability against the company. The plaintiff argued that Texas law should apply since the decedent, a resident of Texas, signed the waiver while in Texas. The court reasoned: "If we applied Texas law because it is the state where [the decedent] signed the liability release, we would essentially allow the other forty-nine states to regulate a key industry within Colorado. Such an approach is impractical and illogical." See the decision and report in The Gazette.

  • The Ninth Circuit rejected a meat industry appeal that challenged California’s animal confinement standards as unconstitutional. California’s Proposition 12 (the “Farm Animal Confinement Initiative”) is a voter-approved law that regulates the production of veal, pork, and eggs sold in California; it forbids the sale of meat from animals not housed within its “stand-up-turn-around” requirement. The challenge argued that the regulation had the effect of controlling nationwide meat production standards, which violates the Extraterritoriality Doctrine of the Commerce Clause. The court rejected the argument, narrowly interpreting extraterritoriality as applying only to laws that dictate the prices of products. The court reasoned: “It is undisputed that Proposition 12 is neither a price-control nor price-affirmation statute, as it neither dictates the price of pork products nor ties the price of pork products sold in California to out-of-state prices.” See the decision and reports from Bloomberg Law and Courthouse News.

August 1, 2021 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Do Rhetorical Flourishes Have a Place in Judicial Opinions . . . or Appellate Briefs?

Judges have considerable freedom to write opinions as they like. They write for a broad audience. A judicial opinion speaks not just to the case’s lawyers and their clients, but to other judges, the legal academy, and perhaps, most importantly, the lay public. Even though most judicial opinions will not penetrate the public consciousness, the decision in a case should seek to demonstrate the elements we associate with thoughtful and considered judging. Still, in a world where social media champions the clever turn of phrase and even the burning insult, readers should not be surprised when judges adopt a vernacular not often associated with legal writing.

Some subject matters will not open the door to that type of accessible writing. Justice Elena Kagan once announced the opinion of the Court on a rather dry issue concerning the Anti-Injunction Act with: “If you understand anything I say here, you will likely be a lawyer, and you will have had your morning cup of coffee.” On the other hand, as an inveterate comic book superhero enthusiast, Kagan could not resist throwing in a gratuitous line in a patent infringement case involving “Spider-man”: “The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can)”[1] and citing an issue of the comic book as authority elsewhere in the opinion.[2]

Indeed, her late colleague, Justice Antonin Scalia, is remembered as much for his pointed barbs and colorful jargon as he is for his dedication to a form of originalism in interpreting the Constitution. For example, lamenting the much-criticized Establishment Clause test from Lemon v. Kurtzman,[3] Scalia memorably described its usage after a long period in hybernation as being “[l]ike some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, . . . frightening the little children and school attorneys of [defendant school district].”[4]

Yet, the same reasons that cause some of us to remember that opinion prompted University of Wisconsin law professor Nina Varsava to write that judicial writing that turns opinions into a “compelling and memorable narratives” ill serves the “integrity of the judicial role and the legitimacy of the adjudicative process” in a forthcoming law review article.[5] Professor Varsava recognizes that commentators love a lively and engaging style that seems to burnish the judicial reputations of those who write in a striking style all their own. Nonetheless, she advocates a more “even-keeled and restrained institutional style.” She rationalizes this plea by critiquing more stylistic writing as “ethically dubious” because it undermines a judge’s “most fundamental professional responsibilities.” To Professor Varsava, judicial opinions are not in the persuasion business, but instead serve a more pedagogical purpose. 

Tellingly, Professor Varsava disagrees with Justice Kagan, who has said that “[t]here’s no rule against fun in [opinions].” The professor argues that “perhaps there should be such a rule.” Indeed, Professor Varsava imagines that judges could be constrained by enforceable regulations in the form of “internal court rules, rules of judicial conduct, or even statutory requirements.”

However interesting Professor Varsava’s take on opinion-writing is, and there is great reason to believe that enforcing it through rules or statutes is a dog that won’t hunt, to use a phrase the professor would surely reject, does her plea for more balanced and straightforward writing hold any value for the appellate advocate?

Unlike a judicial opinion, a brief targets a very specific and limited audience: the panel of judges who will decide the case. In many instances, the panel of judges who will hear the case is often unknown until after briefing is complete and suggests a certain amount of caution. Rhetorical flourishes and witty allusions may make for good reading, but can also detract from the persuasiveness of an otherwise well-founded argument. It may well put off a judge who equates the infusion of colloquial speech into the brief as disrespectful or an attempt to lend cover to a weak case.

To be sure, unlike Professor Varsava’s view of judicial opinions, briefs are written to persuade. To hammer home a point and perhaps make it more memorable, an occasional flashy phrasing or telling metaphor can serve a highly useful purpose. Still, there are limits that lawyers must recognize in an exercise of professional judgment.

Even so, judicial rhetoric can provide some license for flights of fancy in briefs. A Brandeis, writing a judicial opinion, might usefully explain why irrational fears cannot justify the suppression of speech by stating that “[m]en feared witches and burnt women,”[6] but it is difficult to imagine how those words could have been made in a brief – except by quoting and citing the Brandeis opinion.

 

[1] Kimble v. Marvel Ent., LLC, 576 U.S. 446, 450 (2015) (emphasis added).

[2] Id. at 465 (“Cf. S. Lee and S. Ditko, Amazing Fantasy No. 15: “Spider–Man,” p. 13 (1962) (“[I]n this world, with great power there must also come—great responsibility”)).

[3] 403 U.S. 602 (1971).

[4] Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 398 (1993) (Scalia, J., concurring).

[5] Nina Varsava, Professional Irresponsibility and Judicial Opinions,  __ Hous. L. Rev. __ (forthcoming, 2021), available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3825848.

[6] Whitney v. California, 274 U.S. 357, 376  (1927) (Brandeis, J., concurring), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).

August 1, 2021 in Appellate Advocacy, Appellate Practice, Legal Writing, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Tuesday, July 27, 2021

Waiting for Warrants? Chief Justice Roberts’s conflicting opinions on the speed of warrant applications in Lange and McNeely.

    In his recent concurring opinion in Lange v. California, Chief Justice Roberts argued in favor of a robust version of a “hot pursuit” exception to the warrant requirement. His argument was motivated, in part, by a concern that officers would waste too much time if forced to obtain a warrant in those exigent circumstances. Interestingly, though, Roberts’s claims about the time-consuming nature of the warrant application process were contradicted by another opinion Roberts himself authored just eight years earlier in Missouri v. McNeely. The conflicting opinions are not just confusing. They generate conflicting incentives for police departments to invest in flexible and efficient procedures to approve warrants, threatening to undermine advancements that help preserve Fourth Amendment rights.

    In his Lange opinion, Roberts claimed that while a suspect flees into their home, “even the quickest warrant will be far too late.”[1] Roberts cited to an amicus brief submitted by the Los Angeles County Police Chiefs’ Association, which argued that “[a] ‘fast’ warrant application may be processed in an hour and a half if factors are favorable (e.g., it occurs during normal court hours, has strong supporting facts, receives quick responses from the magistrate or judge, etc.).”[2] The Association suggested that even more support is needed for an arrest warrant, such as evidence of a completed investigation, and that such warrants are rarely issued quickly absent compelling reasons.[3] In his opinion, Roberts went on to claim that “[e]ven electronic warrants may involve time-consuming formalities,” such as a written application or an in-person appearance.[4] Thus, Roberts argued that limitations on the hot pursuit branch of exigent circumstances would allow reckless suspects to freely elude warrantless capture.

    But Roberts’s views on the laboriousness of the warrant application process directly contradicted his own concurring opinion in 2013’s Missouri v. McNeely just eight years earlier. In McNeely, Roberts claimed that “police can often request warrants rather quickly these days,” including electronic warrant applications that were available in at least 30 states at the time.[5] Roberts specifically cited Utah’s e-warrant procedures, whereby “a police officer enters information into a system, the system notifies a prosecutor, and upon approval the officer forwards the information to a magistrate, who can electronically return a warrant to the officer. Judges have been known to issue warrants in as little as five minutes.”[6] Similarly, officers in Kansas can email warrant requests to judges and receive responses in less than 15 minutes.[7]

    Which Chief Justice Roberts was right? In truth, both. Neither opinion presented incorrect or inaccurate information. Roberts correctly described the common plight of officers in Los Angeles, while also accurately presenting the capabilities of e-warrant systems in Utah and Kansas. But his selective approach to the data in each presented conflicting images of uniform procedures and time frames for obtaining warrant across the country. As these opinions demonstrate, such uniformity does not exist across jurisdictions.

    Sweeping such disuniformity under the rug is particularly troubling. It disincentives jurisdictions from creating more efficient warrant application procedures. In McNeely, Roberts seemed to speak with approval about the evolution of e-warrants, suggesting that they may resolve many of the problems presented in emergency cases while still maintaining the neutral magisterial review of warrant applications that our Constitution typically requires. But in Lange, Roberts seemed to reward jurisdictions that have been slower to develop those kinds of warrant regimes. Roberts suggested that in such jurisdictions, perhaps obtaining a warrant to respond to a rapidly-evolving emergency is entirely unnecessary.

    Why, then, would jurisdictions continue to develop those efficient methods for warrant applications? Roberts’s suggestion removes one of the primary incentives to duplicate procedures like those in Utah and Kansas. Only if court decisions look upon those programs with favor and reward those jurisdictions for their efforts will policymakers continue to build such programs. Roberts’s flip-flop is thus a dangerous one for the future of e-warrant procedures. His earlier views provide a much greater incentive for the continued development of rapid warrant procedures that can resolve many Fourth Amendment issues in modern policing.

 

[1] Lange v. California, 594 U.S. __ (2021) (slip op. at 9) (Roberts, C.J., concurring).

[2] Brief of Los Angeles County Police Chiefs’ Association As Amicus Curiae in Support of the Judgment Below 24-25, Lange v. California, 594 U.S. __ (2021), https://www.supremecourt.gov/DocketPDF/20/ 20-18/166350/20210114161910913_40463%20pdf%20Ito%20br.pdf.

[3] Id. at 25.  

[4] Lange, slip op. at 9 (Roberts, C.J., concurring) (citing Colo Rev. State. § 16-3-303 (2020) and Mass. Gen. Laws, ch. 276, §2B (2019)).

[5] Missouri v. McNeely, 569 U.S. 141, 172 (2013) (Roberts, C.J., concurring).

[6] Id. at 172–73 (citations and quotations omitted).

[7] Id. at 173 (citations and quotations omitted).

July 27, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Appellate Procedure, Rhetoric, United States Supreme Court | Permalink | Comments (0)

Professionalism in Legal Writing – Dos & Don’ts, Part IV

Professionalism in Legal Writing – Dos & Don’ts, Part IV

The Supreme Court of Ohio, Commission on Professionalism, has published Professionalism Dos & Don’ts: Legal Writing.[1] Each Do and Don’t has several subpoints. Over the next few months, I plan to take a more in-depth look at some of these Dos and Don’ts and offer examples and suggestions for how appellate advocates can implement the Dos and avoid the Don’ts. This is the fourth post in the series.

Do adopt a clear and persuasive style:

  • Do put material facts in context.

The facts we select to include in a brief and how we present those facts are important. But which facts should we include, and which should we omit? We must include all legally relevant facts and background facts that are necessary to understand the legally relevant facts. But we also have to present the facts (both good and bad as I discussed in an earlier post) in a way that tells our client’s story effectively and persuasively. And sometimes that means including context or material that makes the story more interesting.

Take this example from a brief filed by now Chief Justice Roberts in State of Alaska v. EPA, No. 02-658:

The Red Dog Mine. For generations, Inupiat Eskimos hunting and fishing in the DeLong Mountains in Northwest Alaska had been aware of orange- and red-stained creek beds in which fish could not survive. In the 1960s, a bush pilot and part-time prospector by the name of Bob Baker noticed striking discolorations in the hills and creek beds of a wide valley in the western DeLongs. Unable to land his plane on the rocky tundra to investigate, Baker alerted the U.S. Geological Survey. Exploration of the area eventually led to the discovery of a wealth of zinc and lead deposits. Although Baker died before the significance of his observations became known, his faithful traveling companion—an Irish Setter who often flew shotgun—was immortalized by a geologist who dubbed the creek Baker had spotted “Red Dog” Creek. Mark Skok, Alaska’s Red Dog Mine: Beating the Odds, Minerals Today, at 8 (June 1991).[2]

The case was about the Clean Air Act, “best available control technology,” and permitting authorities. Adding details about a bush pilot and his dog was a way to make what most would view as a boring case a bit more interesting. And of course, the author tied these details into his argument, at least indirectly, later in the brief.

  • Do write in a professional and dignified manner.

Legal writing is professional writing and thus, we should write in a manner that recognizes the importance of our work as writers; and in a way that recognizes the importance of our primary audience—appellate judges. We shouldn’t write in a way that insults our opponents or the court. We must not include ad hominem attacks or sarcasm in our briefs. Attempts at humor should be avoided too—none of us are as funny as we think we are.

I know some (perhaps many) will disagree, but I think it’s ok to use contractions. They make our writing more conversational and less stilted, but not less professional. And start a sentence with and, but, or, or so now and then. Doing so has the same effect.

  • Do put citations at the end of a sentence.

We must cite the authorities we rely upon, and we must do so each time that we rely upon them. That’s simple enough. There is some debate, however, about whether citations should be placed in footnotes or the text. I think they should be placed in the text for two reasons. First, judges are used to seeing citations in the text not in footnotes and our job is to make the judge’s job easier. By doing something the judge doesn’t expect or isn’t accustomed to, we make their[3] job more difficult. Second, citations convey more information than just where to find an authority. Citations tell us the value of the authority, i.e., is it binding or persuasive, the age of the authority, etc. Of course, there are ways to convey that information and still use footnotes, but it is easier to just include the citation in the text.

  • Do use pinpoint citations when they would be helpful.

They’re always helpful.

 

[1] https://www.supremecourt.ohio.gov/Publications/AttySvcs/legalWriting.pdf

[2] https://www.findlawimages.com/efile/supreme/briefs/02-658/02-658.mer.pet.pdf

[3] Yes. I used “their” as a singular pronoun. That’s ok too. https://public.oed.com/blog/a-brief-history-of-singular-they/

July 27, 2021 in Appellate Advocacy, Appellate Practice, Legal Ethics, Legal Profession, Legal Writing, Rhetoric, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, July 23, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 23, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • Mississippi’s attorney general has asked the Supreme Court to overturn Roe v. Wade, calling it “egregiously wrong.” The Court will ear argument this fall on whether to allow Mississippi’s law that bans most abortions after 15 weeks. See the Brief for Petitioners and reports from The New York Times, The Wall Street Journal, Reuters, and Bloomberg News.

  • Adam Feldman wrote an analysis of the 2020-21 Supreme Court shadow docket; it was posted on The Juris Lab. Coined by Professor William Baude, the term “shadow docket” refers to the Court’s decisions made outside the regular docket and without oral argument. 

 Appellate Court Opinions and News

  • The DC Court of Appeals tossed a Constitutional challenge against Speaker Nancy Pelosi and a House resolution to create a proxy voting system to allow remote legislating during the pandemic. The court determined that it did not have jurisdiction to review rules and procedures of the House. The court agreed with the lower court decision that “the resolution and its implementation lie within the immunity for legislative acts conferred by the Constitution’s Speech and Debate Clause.” See the decision and reports from The Hill and The New York Times.

  • The Tenth Circuit upheld as constitutional a law that permits the revocation of the passport of a person who owes taxes. Thus, the court determined that international travel is not a fundamental right. This ruling is the first of its kind. See the decision and reports from Bloomberg Law and The Gazette (CO).

  • The US District Court for the Northern District of Indiana denied a petition to preliminarily enjoin an Indiana University Covid policy that requires all students and staff to be vaccinated, with exceptions for religious, ethical, or medical reasons. The policy requires those who are unvaccinated to take special precautions including wearing masks, taking additional Covid tests, and quarantining during an outbreak. The court weighed individual freedoms against public health concerns and found that the petitioners did not show they would suffer irreparable harm. The court held that “[t]he university is presenting the students with a difficult choice — get the vaccine or else apply for an exemption or deferral, transfer to a different school, or forego schools for the semester altogether. … But, this hard choice doesn't amount to coercion.” See the decision and reports from NPR, USA Today, and The Wall Street Journal.  

  • The Fourth Circuit has ruled that gun laws barring sales to those under 21 are unconstitutional because they restrict the rights of citizens. The court wrote: “Despite the weighty interest in reducing crime and violence, we refuse to relegate either the Second Amendment or 18-to-20-year-olds to a second-class status.” See the decision and reports from CNN, USA Today, and The Hill.

July 23, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, July 18, 2021

Does Oral Advocacy Advice from an Earlier Era Stand Up Today?

This month marks 80 years since Robert H. Jackson took the bench as a U.S. Supreme Court justice. Students of the Court remember him as one of the most elegant writers to grace the pages of U.S. Reports. Jackson also notably took a leave of absence from the Court to serve as chief prosecutor at the Nuremberg war crimes trial, an extracurricular activity that generated some controversy.

His service on the Court and at Nuremberg overshadows contemporary memory of his earlier service both as Attorney General and as Solicitor General. It was in the latter role, as an advocate before the Court on which he would eventually sit, that caused no less a luminary than Justice Louis Brandeis to suggest that Jackson should serve as Solicitor General for life.

Yet, despite such high praise, Jackson, at the time newly a justice, famously wrote a 1951 article on oral advocacy that expressed doubt about his effectiveness as an advocate.[1]  In it, he revealed that he composed three arguments each time he went before the bench. The first argument anticipated a well-planned presentation designed to hit all the critical points needed to prevail and was, of course, presented in an inexorably logical order. The second one did not match the care taken to construct the first one, because it was the argument actually made in court. Jackson described that argument as “interrupted, incoherent, disjointed, disappointing.” The third argument was the “utterly devastating argument that I thought of after going to bed that night.” In other words, the one he felt he should have made.

Even with his experience, Jackson was at a loss on how to avoid the disruption caused by justices “much given to interrogation.” Although the hot bench familiar to him was markedly cooler than that of today’s Supreme Court, a flurry of inquiries on topics outside the flow of his intended argument induced Jackson to adopt a categorical opposition to splitting an argument with a co-counsel.

He explained his position was a product of experience in a case where he was supposed to cover the statute in question while his co-counsel focused upon the regulatory scheme of the agency that employed him. When he rose to speak, the justices peppered him with questions about the regulations. He had not prepared that part of the case and had not anticipated that the case could turn on it. By the time his co-counsel took over, the Court had exhausted their interest in the regulations and now proceeded to ask about the statute. The planned presentation was rendered asunder.

Much of Jackson’s advice seems like an artifact of an earlier era. He repeatedly advises that the facts bear careful and scrupulous description and yet warns that a factual description that attempts to reargue findings of fact or a verdict will be met with “embarrassing judicial impatience.” He also suggests that an advocate should not assume that the panel is familiar with the statute at issue. Modern practice, in contrast, safely presumes that the judges have read the briefs, understand the facts, and the applicable statute, even if argument must focus on some aspect that determines the question presented. Jackson also warns that defeat can be snapped from the jaws of victory in rebuttal, suggesting that the “most experienced advocates make least use of the privilege.” That advice seems too uncompromising. While there are times that waiver of rebuttal makes good sense, experienced advocates often make productive use of that opportunity.

While some of Jackson’s advice appears dated and tied to a different era of oral advocacy, other points confirm that some things never change. Tying your argument to a judge’s extrajudicial writings or speeches, Jackson says, “is a matter of taste,” but usually “bad taste.” He denounces memorized orations, brief-reading, and rambling discourses as inappropriate.

Consistent with the most common advice an oral advocate receives, Jackson emphasizes comprehensive preparation. Knowing the facts, the cases, the context, and the flow of relevant doctrine is a given. Opening with a clear presentation of why the facts or law or a combination of the two inexorably lead to a favorable decision sets the stage for the questions that will likely follow. You want those questions to play to your strengths and to set the stage so that the bench poses difficult questions that exposes weaknesses in the contrary argument being made by an opponent.

Jackson also recognizes that questions from the bench may appear hostile to an advocate’s position. He warns against adopting that assumption, though, because the questions may seek to do nothing more than sharpen the advocate’s position.

A court of last resort will have a consistent group of judges over a significant period of time. Much like the U.S. Supreme Court of today, there may be some fissures that sharply divide the justices. Jackson acknowledges that this will often present a dilemma to an advocate. It apparently did to him. For that reason, he states plainly that he has no advice and suggests reliance on wit.

Jackson’s article amounts to something from a time capsule, undoubtedly presenting a thoughtful and practical introduction to oral advocacy as it was practiced at the highest levels of his day. And, while some aspects of oral advocacy remain the same, others have changed significantly. One thing has not. Jackson ends his article with a parable about three stone masons asked about what they were doing. The first responds that he is doing a job. A second explains that he is carving a pattern. The third indicates he is making a cathedral. He closes by saying that “it lifts up the judge’s heart when an advocate stands at the bar who knows he is building a Cathedral.” Successful advocacy forms the facts and law into a work of architecture. It did so then and does so now.

 

[1] Robert H. Jackson, Advocacy before the Supreme Court: Suggestions for Effective Case Presentations, 37 A.B.A J. 801 (1951).

July 18, 2021 in Appellate Advocacy, Appellate Practice, Oral Argument, United States Supreme Court | Permalink | Comments (0)

Friday, July 9, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 9, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

The Supreme Court ended the 2020-21 term last week. And with that came the many end-of-term wrap-ups and commentaries. Here are a few for your perusal:

Appellate Court Opinions and News

  • The Fifth Circuit ruled that Texas’s rule that requires attorneys to join the bar association violates the First Amendment. The court reasoned that, because “the Bar is engaged in non-germane activities,” compelling Texas attorneys to join and pay dues violates their First Amendment Rights. See the order and reports from the ABA Journal and the Times-Picayune

Jobs

The Office of the Federal Public Defender for the Eastern District of North Carolina is hiring an Appellate Assistant Federal Public Defender.  See the posting here.

Interesting Discussions

  • Tim Koval posted a discussion that he and Jeff Lewis had with Judge Robert Bacharach of the Tenth Circuit about using acronyms in brief writing. Spoiler: avoid them if you can.

  • Avi Wolfman-Arent  started a thread (and sub-thread) about the circumstances that led to the Supreme Court case where we find the oft-quoted First Amendment line about yelling fire in a crowded theater. 

July 9, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Friday, July 2, 2021

Appellate Advocacy Blog Weekly Roundup Friday, July 2

WeeklyRoundupGraphic

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

US Supreme Court News and Opinions:

It was a very busy final week of the term for the Supreme Court, with a number of orders and opinions released throughout the week.

On Monday, the Court rejected requests to review two cases concerning the ability of courts to intervene in disputes arising in religious settings, declining to resolve separation of church and state disputes.  More from Bloomberg.

Also on Monday, the Court declined to review a lower federal court decision that found a school violated the Constitutional rights of a transgender student when it imposed a policy banning him from using the boys' restroom. More from BuzzFeed.

Also on Monday, the Court struck down barriers to challenging governmental takings of property in federal court, ruling that the "exhaustion requirement" imposed before bringing suit in federal court only requires giving a state agency a chance to weigh in, rather than requiring following all of the agency's administrative procedures.  More from Bloomberg.

Also on Monday, the Court vacated an Eighth Circuit opinion and remanded a case involving assertions of excessive force by St. Louis police who restrained an inmate in an incident in which he died. The Court ruled that the appellate court deemed as "insignificant" facts that should have been given consideration in deciding whether to grant summary judgment on the excessive force claim, reviving the claim.  More from Courthouse News.

On Tuesday, the Court ruled against a group of noncitizens who had applied for "withholding" relief -- a remedy that involves an exception to the typical action of expeditiously again removing noncitizens who have been removed but are found back in the United States when there is risk of returning them to a country where they might face torture or persecution. More from Scotusblog.

Also on Tuesday, the Court ruled that states cannot stop developers from using the federal government's power of eminent domain to seize property for construction of a natural-gas pipeline through the state.  More from Scotusblog.

Also on Tuesday, the Court refused to lift the federal moratorium on evictions during the COVID-19 outbreak, leaving the ban in place until the end of July, as extended by the U.S. Centers for Disease Control and Prevention.  More from Bloomberg.

On Thursday, the Court upheld voting restrictions imposed by Arizona, limiting cases under the Voting Rights Act.  The ruling will make it more difficult to contest state-imposed election regulations.  More from Scotusblog.

Also on Thursday, the Court struck down a California requirement that charities and nonprofit organizations operating in the state disclose to the state attorney general's office the names and addresses of the organization's largest donors.  More from Scotusblog.

On Friday, the Court issued a summary reversal in the case of an Alabama death row inmate who had won habeas corpus relief in the lower court, upending the death row inmate's win.  More from Bloomberg.

In the ongoing discussion of whether Justice Breyer will or should consider retiring and allowing President Biden to name and seek confirmation of his replacement, Breyer's friend Kenneth Feinberg writes that Breyer is "at the top of his game" right now.  See the piece at Law.com.

Federal Appellate Court News and Opinions:

This week, the Tenth Circuit issued a ruling that mostly upheld Oklahoma's mandatory bar dues as Constitutional.  More from Law360.

Appellate Practice Tips and Pointers:

Appellate Twitter provided a couple of great threads this week, with appellate practitioners providing some great thoughts on effective advocacy.

Carl Cecere started a thread on Monday discussing the value of Introductions and Summaries in appellate briefs, an all-too-often overlooked opportunity for good advocacy.

Tobias Loss-Eaton started a thread on Thursday discussing the virtues of doing trial level work and trial level briefs, even if you aspire to some kind of "idealized" practice of high court appellate brief writing, because of the insight and development it can provide.

Appellate Jobs:

The Seventh Circuit is accepting applications for positions in the court's Office of Staff Law Clerks to begin in the fall of 2022.  Application information HERE.

July 2, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Federal Appeals Courts, Legal Writing, United States Supreme Court | Permalink | Comments (0)

Friday, June 25, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, June 25, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court sided with the student in the recent and much-anticipated First Amendment student speech case, finding that the school violated the student’s right to free speech when it punished her for a Snapchat post made while the student was off school grounds. The Court applied the traditional Tinker test and determined that this student’s speech was not disruptive. Although finding for the student, the decision preserved the right of school administers to police off-campus speech that meets the Tinker standard, that is, speech that “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The decision states, “[t]he school’s regulatory interests remain significant in some off-campus circumstances. … [including] serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices, including material maintained within school computers.”  See the order and a sampling of the many reports, including from The Wall Street Journal, USA Today, The Associated Press, NPR, and The New York Times.

  • The Supreme Court ruled that the Fourth Amendment does not permit the police to enter a home or grounds except in emergencies and that “hot pursuit” does not “trigger a categorical rule allowing home entry.” In this case, after a motorist failed to stop when officers attempted to pull him over, the officers followed the motorist into his garage and arrested him for driving under the influence. The motorist sued, arguing that the officers had violated his Fourth Amendment right to be free from unreasonable search and seizure.  The Court agreed, stating, “when the officer has time to get a warrant, he must do so – even though the misdemeanant fled.” The Court reaffirmed that entry without a warrant is permitted in circumstances of true emergency, stating “[o]n many occasions, the officer will have good reason to enter – to prevent imminent harms of violence, destruction of evidence, or escape from the home.”  See the order and reports in The Washington Post, The New York Times, and USA Today.

  • The Supreme Court ruled in favor of private landowners, striking a California regulation that permitted union organizers to recruit farm workers at their workplace.  The Court determined that the regulation amounted to a taking of private property because it allowed unions to invade the landowners’ property without compensating the property owner.  See the order and reports from The New York Times, The Associated Press, Reuters, and Bloomberg

  • This week, the Senate Judiciary Committee approved bills that would expand video coverage of federal court trials and other proceedings, including allowing the filming of Supreme Court argument for the first time. These bills are the first in over ten years aiming to expand live coverage of federal proceedings. See reports from Politico and Forbes.

Appellate Court Opinions and News

  • The Ninth Circuit stayed a recent lower court ruling that had struck California’s 30-year old ban on assault rifles. The judge striking the ban compared the AR-15 rifle to a Swiss Army Knife, calling it “good for both home and battle.” The Ninth Circuit’s short order stays the ruling pending other related cases challenging the assault weapons ban.  See the ruling and reports from CNN and The LA Times.

June 25, 2021 in Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, June 22, 2021

The Problem with the Invited Future Appeal in Justice Alito's Fulton v. Philadelphia Concurrence

    When Supreme Court Justices author concurring opinions, they offer signals to future litigants. Most commonly, the concurring Justice signals disagreement with, or limitations they would place upon, the majority’s reasoning. Some concurrences pose open questions to the bar that the Justice thinks a future litigant should answer, without providing any clear resolution themselves.[1] But a more troubling signal comes from concurrences like Justice Alito’s in last week’s Fulton v. Philadelphia.[2] Alito penned a 77-page blueprint for future litigants to argue that Employment Division v. Smith[3] should be overruled. Such “opinion-briefs” pose a future question and offer a detailed roadmap for future parties to resolve it, describing the specific arguments that the author would find persuasive when issuing a future ruling.[4] Opinion-briefs like Alito’s are more akin to persuasive advocacy than neutral resolution of a legal dispute.

    The trend of opinion briefs is troubling for three reasons. First, opinion-briefs create a rift between a legal system founded upon adversary procedure and the actual process of litigation in that system’s highest court. When Justices dictate both the direction and content of future litigation, they promote a top-down style of jurisprudence. Justices control the agenda and direction of legal change more with each passing term. For critics of judicial policymaking, such top-down jurisprudence initiated by opinion-briefs is a frightening prospect.

    Second, opinion-briefs undermine traditional notions of appellate jurisprudence, including stare decisis. Justices authoring opinion-briefs are no longer neutral arbiters of the future legal controversies they invite. Opinion-briefs disregard any sense of judicial humility; the opinion-brief’s author intimates that only she can divine the best legal arguments in support of a particular position, belittling any creative solutions of litigants. Opinion-briefs are frequently a first step in a Justice-led crusade to overrule long-standing precedent, offending notions of stare decisis inherent in appellate judging. This is a pattern that Justice Alito himself has followed in the past in campaigning to overturn Abood v. Detroit Board of Education.[5]

    Third, opinion-briefs like Alito’s contribute to the inefficiency of a Supreme Court that issues fewer and fewer opinions that have grown longer and longer. A less productive Court has less capacity to address pressing legal questions in need of resolution. The Court struggles to clearly resolve even the few legal controversies it does address when it issues fractured opinions that include lengthy concurrences inaccessible to the average American. And opinion-briefs preemptively set future dockets to the exclusion of other cases or controversies, just as Justice Alito’s opinion all but guarantees future litigation on the viability of Smith.

    No matter the merits of Justice Alito’s Fulton concurrence, it sets a bad precedent for the use of concurring opinions to dictate the precise direction of future litigation. On those grounds alone, it ought to be disfavored by Americans from all political perspectives.

 

[1] In past work, I have called this type of opinion a “soft invitation” for litigants to raise an issue in the future, with no promise of how the Justice might resolve that issue. See Michael Gentithes, Check the Invitation: The Trouble with Appeals Invited by Supreme Court Justices, 82 Mo. L. Rev. 339, 341 (2017).

[2] 593 U.S. __ (2021).

[3] 494 U.S. 872 (1990).

[4] See Gentithes, supra note 1, at 341.

[5] See Knox v. Service Employees International Union, Local 1000, 567 U.S. 298, 311 (2012); Harris v. Quinn, 573 U.S. 616, 633-38 (2014); Janus v. American Federation of State, County, and Municipal Employees, Council 31, 138 S. Ct. 2448, 2478-86 (2018); see also Michael Gentithes, Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis, 62 Wm. & Mary L. Rev. 83, 101-04 (2020).

June 22, 2021 in Appellate Advocacy, Appellate Court Reform, Appellate Practice, Appellate Procedure, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (0)

Sunday, June 20, 2021

Fulton v. City of Philadelphia: Chief Justice Roberts Issues Another Disappointing Decision

In Fulton v. City of Philadelphia, the United States Supreme Court confronted the question of whether the City of Philadelphia could deny a contract to a Catholic foster care agency (Catholic Social Services) because the agency refused to provide service to same-sex couples.[1] The city argued that the agency's policy violated the city’s anti-discrimination law, which prohibits discrimination based on, among other things sexual orientation.[2]

By way of background, in Employment Division v. Smith, the Court held that neutral laws of general applicability that incidentally burden religion do not violate the Free Exercise Clause of the First Amendment.[3] Writing on behalf of the majority, Justice Antonin Scalia relied in part on Reynolds v. United States to hold that the Free Exercise Clause does not permit religious organizations to receive exemptions from generally applicable laws.[4] Justice Scalia reasoned that to allow such exemptions “would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."[5] Justice Scalia held that religious exemptions could be granted only when an alleged violation of religious liberty was coupled with a violation of another constitutional right.[6] For example, in Wisconsin v. Yoder, the Court held that the parents of an Amish child were exempt from a generally applicable law requiring all children to attend public school until the age of sixteen because the law infringed on both the parents’ religious liberty and the fundamental right to direct the upbringing of their children.[7]

The Court’s decision in Smith has proved quite controversial, as some argue that it is inconsistent with the original purpose of the Free Exercise Clause.[8] And Smith has been implicated in recent disputes involving the balance between accommodating individuals’ religious beliefs and protecting citizens against discrimination.  For example, in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a cakeshop owner refused to design a custom wedding cake for a same-sex couple, arguing that doing so would violate his religious beliefs.[9] The State of Colorado argued that the cakeshop owner's refusal violated its generally applicable anti-discrimination law, which prohibited discrimination based on sexual orientation.[10]  The facts in Masterpiece Cakeshop arguably presented the Court with the issue of whether Smith should be overruled.

But the Court avoided the question.

Instead, it ruled on very narrow grounds, holding that the Colorado Civil Rights Commission had demonstrated hostility toward the cakeshop owner’s religion when addressing his claim.[11] As a result, Masterpiece Cakeshop resolved nothing. The decision provided no clarity or guidance to courts and citizens regarding the Free Exercise Clause. It was a missed opportunity.

Not surprisingly, three years later in Fulton, the same issue arose again when Philadelphia denied a contract to Catholic Social Services because it refused to offer services to same-sex couples. As in Masterpiece Cakeshop, the Court was faced with the question of whether Smith should be overruled.

Yet again, the Court avoided the question.

Instead, in an opinion by Chief Justice Roberts, the Court issued a very narrow decision in favor of Catholic Social Services, holding that Philadelphia’s anti-discrimination law was not generally applicable because the city retained the discretion to grant exemptions to the law.[12] This led to a narrow, unanimous ruling for Catholic Social Services. But again, the decision failed to resolve the underlying question of whether Smith should be overruled and avoided addressing how to balance an individual’s right to religious liberty against another individual’s right to be free from unlawful discrimination. The result is that one of the most sacrosanct constitutional rights – the free exercise of religion – is now marred in constitutional purgatory, with no clarification or guidance about the scope of this right and the limits on state power. 

Fulton was legal gymnastics at its finest. And politics at its worst.

Sadly, the decision in Fulton is yet another example of Chief Justice Roberts's disappointing jurisprudence.

To be clear, by all accounts Chief Justice Roberts is a brilliant and ethical jurist – and a great person. Roberts is deeply committed to preserving the Court’s institutional legitimacy and to avoiding the perception that politics and ideology motivate the Court’s decisions. To that end, Roberts strives to achieve consensus on the Court and avoid controversial 5-4 decisions. To reach consensus, Roberts seeks to decide each case on the narrowest ground possible, which often has the effect, as in Masterpiece Cakeshop and Fulton¸ of rarely addressing the fundamental constitutional issues that undergird many cases and, concomitantly, failing to clarify the law.

The ugly truth about this approach is that it causes precisely what Chief Justice Roberts hopes to avoid: it politicizes the Court, undermines its institutional legitimacy, and destabilizes the rule of law.  And it causes Roberts to become precisely what he disavows: a political actor.

As stated above, it is politics at its worst.

Unfortunately, even a cursory examination of Roberts’s jurisprudence in recent years reveals that his decisions often result from political calculations rather than principled constitutional considerations.

Indeed, Roberts’s decision in Fulton was eerily reminiscent of his decision in National Federation of Independent Investors v. Sebelius, where the primary issue confronting the Court was whether the Affordable Care Act violated the Commerce Clause.[13] Roberts agreed that the Act violated the Commerce Clause, yet after initially voting to invalidate the Act, Roberts reversed course and concluded that the Act was a proper exercise of Congress’s taxing power.[14] It was apparent that Roberts was trying to find a way – any way – to avoid issuing a decision that might compromise the Court’s legitimacy, lead to a divisive decision, and be perceived as political.

Yet, Roberts created precisely that result. The Court’s legitimacy was damaged because the decision was so obviously based on political calculations, not constitutional principles.

This is not the first time that Roberts has engaged in legal gymnastics that elevate politics over the rule of law and provide no clarity, guidance, stability, or predictability on important legal issues affecting civil rights and liberties. For example, in June Medical Services v. Russo, Roberts concurred in a decision that invalidated a Louisiana law requiring abortion providers to have hospital admitting privileges.[15] Roberts argued that, based on the Court’s decision in Whole Women’s Health v. Hellerstadt, where it invalidated a nearly identical law in Texas (although Roberts dissented), principles of stare decisis required him to invalidate the Louisiana law.

But Roberts’s jurisprudence shows that he has an on-again, off-again relationship with stare decisis.  In Janus v. American Federation of State, County, and Municipal Employees, Council 31, which addressed a union’s ability to collect fees from non-union members, Roberts joined the majority in overruling Abood v. Detroit Board of Education, which had been valid law for over forty years.[16] And in Citizens United v. FEC, Roberts joined a 5-4 majority that invalidated a federal law restricting independent expenditures from corporations; in so holding, the Court overruled Austin v. Michigan Chamber of Commerce, which held that restrictions on corporate speech did not violate the First Amendment.[17] Thus, Roberts’s reliance on stare decisis in June Medical Services was about as disingenuous and manipulative as it gets. Simply put, when a concern for institutional legitimacy triumphs over the rule of law, the result is an unprincipled jurisprudence that at its core is political.

If Chief Justice Roberts values the Court’s institutional legitimacy, he should prioritize the rule of law and base his decisions on reasonable interpretations of the Constitution. He should stop avoiding the real issues that are presented in each case. He should make decisions based on what he believes, not on how others may react to a particular decision. In doing so, Roberts would demonstrate that he is faithful to the Constitution and the rule of law, and that his decisions are based on principle, not politics.

To date, sadly, Chief Justice Roberts has become the Court’s most political actor. And the Court is unquestionably a political institution.

 

[1]  No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)

[2] See id.

[3] 494 U.S. 872 (1990).

[4] See id.

[5] Id.

[6] See id.

[7] 406 U.S. 205 (1972).

[8] See Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Petitioners, available at: 20200602142513866_19-123 CCJ tsac.pdf (supremecourt.gov)

[9] 138 S. Ct. 1719 (2018)

[10] See id.

[11] See id.

[12] No. 19-123, available at: 19-123 Fulton v. Philadelphia (06/17/2021) (supremecourt.gov)

[13] 567 U.S. 519 (2012).

[14] See id.

[15] 2020 WL 3492640 (2020)

[16]  138 S. Ct. 2448.

[17]  558 U.S. 310 (2010).

June 20, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Legal Profession, Religion, United States Supreme Court | Permalink | Comments (0)

Friday, June 11, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, June 11, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court ruled 5-4 that violent felonies committed recklessly, as opposed to intentionally or knowingly, do not count toward the “strikes” that would trigger the 15-year mandatory minimum sentence under the Federal Armed Career Criminals Act.  The Act requires the mandatory minimum for those convicted of firearms possession when they have been previously convicted of three violent felonies. The plurality opinion (one justice agreed on different grounds) determined that the Act excludes crimes committed recklessly, saying the words “against the person of another” requires purposeful conduct and “demands that the perpetrator direct his action at, or target, another individual.” See the order and reports from The New York Times, Bloomberg Law, and The Hill.

  • A few weeks ago, we flagged Johnson & Johnson’s cert petition appealing a $2.1 billion award to petitioners who claimed that J&J talcum powder products caused their cancer. This week, the Supreme Court denied cert. See articles in the Washington Post and The Wall Street Journal.

  • Last week, The New York Times’s Adam Liptak and Alicia Parlapiano reported on a survey from researchers at Harvard, Stanford, and the University of Texas looking at what the public thinks about this term’s major Supreme Court Cases.  Find the article here.

Appellate Court Opinions and News

  • The Eighth Circuit has affirmed a preliminary injunction blocking a Missouri abortion ban.  The law would have prohibited abortions after eight weeks or because the fetus has Down Syndrome. The ruling is based in the Supreme Court precedent that “[b]ans on pre-viability abortions are categorically unconstitutional.” The ruling recognizes that the law was a ban rather than a restriction: “Unlike a regulation, the Down syndrome provision does not set a condition that—upon compliance—makes the performance of a pre-viability abortion lawful, thus preserving the constitutional right to elect the procedure. Rather, it bans access to an abortion entirely,” See the order and reports from The Courthouse News, The Washington Times, and The Associated Press.

  • The well-loved and highly-respected Second Circuit Judge Robert A. Katzmann died this week. See the US Courts announcement, a New York Times tribute and a report, and a statement by U.S. Attorney General Merrick B. Garland.

June 11, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Saturday, June 5, 2021

Judicial Opinions & Pop Culture (or, are the Star Wars sequels "mediocre and schlocky")

Earlier this week I received an email from a student with this Ninth Circuit opinion attached. The subject of the email was "Judge Lee and Star Wars," and the student told me to look on page 26 at footnote 5. I was a bit puzzled at first, since the case was about class action settlements. But, when I got to page 26 it was all clear. Here is what Judge Lee wrote,

Under the settlement, ConAgra agreed to refrain from marketing Wesson Oil as “100% Natural.” That sounds great, except that ConAgra already abandoned that strategy in 2017 — two years before the parties hammered out their agreement — for reasons it claims were unrelated to this or any other litigation. Even worse, ConAgra’s promise not to 
use the phrase “100% Natural” on Wesson Oil appears meaningless because ConAgra no longer owns Wesson Oil. In reality, this promise is about as meaningful and enduring
as a proposal in the Final Rose ceremony on the Bachelor. Simply put, Richardson — the new owner of Wesson Oil — can resume using the “100% Natural” label at any time it
wishes, thereby depriving the class of any value theoretically afforded by the injunction. ConAgra thus essentially agreed not to do something over which it lacks the power to do. That is like George Lucas promising no more mediocre and schlocky Star Wars sequels shortly after selling the franchise to Disney. Such a promise would be illusory.5

Footnote 5. As evident by Disney’s production of The Last Jedi and The Rise of Skywalker.

I laughed out loud when I read the paragraph and footnote, but I also was not surprised, since I have known Judge Lee for many years, and he is definitely a fan of Star Wars (and apparently the Bachelor?). Judge Lee's Star Wars analogy has also made the news, especially in the movie and comic spheres, with one headline reading:

U.S. Ninth Circuit Court Declares THE LAST JEDI "Mediocre And Schlocky" In Recent Ruling

Although that headline might stretch the analogy a bit, it did get me thinking--should judges throw pop culture references into their judicial opinions? In my mind, the answer is certainly yes.

Before I defend pop culture references in judicial opinions, let me start with what I assume to be the critique--that it trivializes important disputes. The response is--like any other use of humor--there is certainly a time and a place for pop culture references. There are some cases where pop culture references could seem insensitive or overly trivial, but in other cases, they humanize the judiciary and raise awareness about our court system, which is why I think that they are great!

According to a 2020 survey, only 51% of Americans can name all three branches of government, with 23% unable to name any branch of government. Compare this to the 49% of adults who have seen The Empire Strikes Back. I couldn't find statistics for the number of people who can name the three movies in the original trilogy, but I think that you get my point.  Star Wars is a big business and very well known. If a pop culture reference to Star Wars gets people to think, albeit even briefly, about our federal court system, that reference is a plus in my book.

How common are pop culture references in judicial opinions?  I ran a few searches on Westlaw Edge to see what I could find.  Searching "Star Wars" in all cases brought up 403 hits. In glancing at the top 50 results, most of them have to do with copyright infringement--they aren't using pop culture to make an analogy.  Justice Kagan did make a Star Wars reference in her dissent in  Lockhart v. U.S., stating "Imagine a friend told you that she hoped to meet 'an actor, director, or producer involved with the new Star Wars movie.' You would know immediately that she wanted to meet an actor from the Star Wars cast—not an actor in, for example, the latest Zoolander. . . . Everyone understands that the modifying phrase—'involved with the new Star Wars movie,' . . . —applies to each term in the preceding list, not just the last." 577 US. 347, 362 (Kagan, J., dissenting).

A search for "Harry Potter" in all cases brought up 284 hits. I looked at the last 84 results, and I found some gems:

  • "Between Marshall's status as the only other person at the defense table and the fact that, by this time, Jenkins had twice previously been shown Marshall's face, Jenkins's in-court identification of Marshall was about as unexpected as the mention of Voldemort in a Harry Potter novel." Marshall v. Sec'y, Fla. Dep't of Corr., 828 F.3d 1277, 1293 (11th Cir. 2016)
  • "According to plaintiff, goodwill is a fleeting concept, here one instant and gone the next, depending upon a firm's current profit status—much like a Harry Potter wizard who disapparates in bad times and reappears in good." Deseret Mgmt. Corp. v. United States, 112 Fed. Cl. 438, 451 (2013)
  • "In a word, today's decision will not require even depositary banks to hire armies of employees to examine each check like something out of Harry Potter's Gringotts Wizarding Bank. It will require only a minimal level of reasonable care." HH Computer Sys., Inc. v. Pac. City Bank, 231 Cal. App. 4th 221, 240, 179 Cal. Rptr. 3d 689, 703 (2014)
  • "The effect is that the debtor's homestead is subject to the loss of its exemption because the snapshot taken upon filing catches the potential for movement not unlike a photograph from a Harry Potter novel captures the movement of the subjects in the photograph." In re Montemayor, 547 B.R. 684, 701 (Bankr. S.D. Tex. 2016)

So appellate judges--throw in those pop culture references!  Maybe, just maybe, it will increase awareness and interest in the judiciary.

June 5, 2021 in Current Affairs, Federal Appeals Courts, Film, Humor, Legal Writing, State Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Sunday, May 23, 2021

The Supreme Court, Abortion, and the Future of Roe v. Wade

Last week, the United States Supreme Court agreed to review the constitutionality of a Mississippi law that prohibits most abortions after fifteen weeks.[1] This case, Jackson Women's Health Organization v. Dobbs, represents yet another episode in the seemingly never-ending abortion saga. Simply put, a state enacts legislation striving to restrict the right to abortion and the Court renders a divisive decision, often by a 5-4 vote along ideological lines, that fails to resolve and clarify permanently the scope of the abortion right. The Court’s incremental, case-by-case jurisprudence has invited confusion and unpredictability into abortion jurisprudence and incentivized states to continue testing the viability of Roe v. Wade, which held that the judicially-created right to privacy under the Fourteenth Amendment encompassed a right to abortion.[2]

So, here we go again.

Another divisive abortion decision is likely and whatever the Court decides, its decision will likely be viewed as political and compromise the Court’s institutional legitimacy.

This constitutional mess can be traced to Roe v. Wade and Griswold v. Connecticut, in which the Court manipulated the Fourteenth Amendment’s Due Process Clause to create unenumerated rights that no reasonable reading of the text could support.[3] In Griswold, the Court held that the Due Process Clause, along with other provisions in the Bill of Rights, contained invisible “penumbras … formed by emanations from those guarantees that give them life and substance.”[4] Within these judicially-invented “penumbras,” the Court gave itself the power to discover unenumerated “rights” out of thin air, including the right to privacy, that could not possibly be found in or inferred from the text.  Relying in substantial part on Griswold, the Court in Roe held that the right to privacy encompassed the right to terminate a pregnancy.[5]

Regardless of one’s policy views on abortion, liberal and constitutional scholars largely agree that Roe was constitutionally indefensible. Harvard Law School Professor Laurence Tribe, for example, stated that “behind its own verbal smokescreen, the substantive judgment on which it [Roe] rests is nowhere to be found.”[6] The late Justice Ruth Bader Ginsburg described Roe as “heavy-handed judicial activism,” and Edward Lazarus, a former clerk to Justice Harry Blackmun (who drafted the majority opinion), stated that “as a matter of constitutional interpretation ... if you administer truth serum … [most scholars] will tell you it is constitutionally indefensible.”[7] These scholars are correct – Roe was one of the worst decisions of the twentieth century.

Importantly, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court had the opportunity to overturn Roe and return the abortion question to the states. Instead, the Court made the problem worse.[8] In a 5-4 decision, the Court upheld the “central holding” of Roe but overturned Roe’s trimester approach, which provided that, absent a compelling interest, states could not restrict a woman’s right to access abortion services during the first two trimesters, or pre-viability phase, which lasts approximately twenty-four weeks.[9] In the third trimester, the states had the authority to prohibit abortion except where necessary to protect the life or health of the mother.[10] In Planned Parenthood, however, the Court rejected the trimester approach; instead, the Court held that abortion restrictions during the pre-viability phase that imposed a “substantial burden” on the right to access abortion services were unconstitutional.[11]

Planned Parenthood was equally, if not more, constitutionally indefensible than Roe and it thrust the right to abortion into legal purgatory. After all, what precisely constitutes a “substantial burden” on the right to access abortion? And what criteria should be used to determine whether a burden is substantial? The Court had no answer.

But the states opposing abortion did.  Recognizing the ambiguity that Planned Parenthood created, these states have repeatedly enacted legislation that seeks to restrict abortion rights and thus rendered the scope of abortion rights unclear and uncertain. To make matters worse, the Court has evaluated these laws on a case-by-case basis and, in divisive and muddled opinions, failed to resolve the abortion question. Recently, for example, in Whole Women’s Health v. Hellerstadt and June Medical Services v. Russo, the Court invalidated – for good reason – laws requiring abortion providers to obtain hospital admitting privileges.[12]

The problem is that the Court, in these and other abortion decisions, has failed to definitively clarify the nature and scope of the abortion right, thus perpetuating a never-ending saga in which some states continue, in various ways, to eviscerate the abortion right. Instead of deciding each case narrowly – and based on an arguably subjective application of the undue burden standard – the Court should have either: (1) overturned Roe and returned the abortion issue to the states; or (2) held that women have an unfettered right to abortion before viability. Whatever one’s views on abortion, this would have resolved the constitutional question and precluded the seemingly never-ending litigation that Roe and its progeny have engendered. In short, Roe was a terrible decision and Planned Parenthood only compounded the constitutional damage that Roe inflicted. By way of analogy, when a person lies, the best course of action is to admit and own up to the lie rather than try to cover it up with additional lies. The Court’s abortion jurisprudence reflects the latter.

As such, the Court once again finds itself in a constitutional quagmire, the result of which will surely divide the country and risk compromising the Court’s institutional legitimacy. But the Court has no one but itself to blame. It created – and exacerbated – the constitutional fictions known as “penumbras” and substantive due process.  

Of course, one’s views on whether women should have a right to abortion are irrelevant. Most polls suggest that a majority of citizens support at least a limited right to abortion. And the reasons are understandable. But the abortion issue should have always been resolved by state legislatures, not nine unelected and life-tenured judges. The Court should have never involved itself in the abortion debate.

Ultimately, what should the Court do in Jackson Women's Health Organization? It should end this constitutional charade. In so doing, the Court should hold that, although Roe was constitutionally indefensible, it should not be overruled. For nearly fifty years, women have relied on Roe to make decisions, in conjunction with their health care providers, regarding whether to terminate a pregnancy. Put simply, Roe is entrenched in the public consciousness and stare decisis counsels in favor of reluctantly upholding Roe despite its obvious flaws. Furthermore, the Court should return to the trimester framework and hold that states may not restrict abortion access prior to viability.

That will end the inquiry and the uncertainty.

But don’t count on it. The most likely result will be a decision, engineered by Chief Justice John Roberts – who has become the Court’s most political actor – that confuses, rather than clarifies, abortion jurisprudence. That is the sad reality of the U.S. Supreme Court. Despite Chief Justice Roberts’s assertions to the contrary, the Court is unquestionably political.

Most importantly, in the future, the Court should hold that the penumbras upon which Griswold and Roe are predicated no longer exist. Had the Court adhered to an originalist framework, we would never be in this mess.

Hopefully, the Court will learn its lesson. There is ample reason, however, to be skeptical.

 

[1] Jackson Women's Health Organization v. Dobbs, No. 19-1392 (October Term, 2021).

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

[3] Id; 381 U.S. 479 (1965).

[4] Id. at 484.

[5] 410 U.S. 113.

[6] Timothy P. Carney, The Pervading Dishonesty of Roe v. Wade (Jan. 23, 2012), available at: The pervading dishonesty of Roe v. Wade | Washington Examiner

[7] Id.

[8] 505 U.S. 833 (1992).

[9] Id.

[10] Id.

[11] Id.

[12]  136 S. Ct. 2292 (2016); 2020 WL 3492640.

May 23, 2021 in Appellate Advocacy, Appellate Justice, Appellate Practice, Current Affairs, Federal Appeals Courts, Legal Profession, United States Supreme Court | Permalink | Comments (2)

Friday, May 21, 2021

Appellate Advocacy Blog Weekly Roundup Sunday, May 21, 2021

WeeklyRoundupGraphic

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

US Supreme Court Opinions and News

  • The Supreme Court has ruled that their April 2020 decision on non-unanimous jury verdicts is not retroactive. The April 2020 decision found that non-unanimous jury verdicts for serious crimes (whether federal or state) are unconstitutional. Then the court considered this case (which we wrote about here back in December 2020) asking whether the April decision should apply retroactively to prisoners in Louisiana and Oregon (the last remaining states to allow non-unanimous verdicts as of the April decision) convicted in the past by non-unanimous juries. The Court ruled that it should not, stating: “It is time — probably long past time — to make explicit what has become increasingly apparent to bench and bar over the last 32 years: New procedural rules do not apply retroactively on federal collateral review.” See the order and reports from The New York Times and The Associate Press.

  • The Supreme Court has agreed to hear an abortions case that many believe may test Roe v. Wade. The case challenges a Mississippi law that bans most abortions after 15 weeks. The Court accepted the appeal of the Fifth Circuit’s decision that the law could not survive Supreme Court precedent on abortion restrictions, saying that it would consider whether “all pre-viability prohibitions on elective abortions are unconstitutional.” The case should be heard in the Court’s next term, which begins in October.  Here is a sampling of the many recent reports: The New York Times, The Washington Post, The Los Angeles Times, The Associated Press, and Reuters.

  • This week, a reader flagged for us the petition for certiorari in Johnson & Johnson v. Ingham, No. 20-1223 (U.S., pending), and shared two pieces that discuss the case and its legal issues. Thanks, Abby! The Supreme Court will conference on the case this week. Johnson & Johnson (J&J) is appealing the $2.1 billion judgment on the claims of 22 plaintiffs who claimed J&J’s talc products contained asbestos and caused their ovarian cancers. Of particular import in the appeal is whether the lower court properly consolidated multiple plaintiffs into a single trial. For background, see pieces from Reuters and Bloomberg.  Both shared pieces question the legitimacy of consolidated trials and can be found here: Drug & Device Law and Justices Should Stand For Jury-Trial Fairness And Grant Writ Of Certiorari In J&J v. Ingham.

  • There’s a new podcast about the Supreme Court, “Divided Argument,” presented by law professors Dan Epps and Will Baude seems to be well-received; find the first three episodes here.

Appellate Court Opinions and News

  • The Ninth Circuit has rejected an appeal of the $25 million verdict against Bayer-owned Monsanto. This is the second appeal that the company has lost on a similar verdict and another appeal is pending. This case concerned the claim that the weedkiller Roundup caused the plaintiff’s cancer and considered whether the company should have included a warning on the product. The court rejected the company’s claim that conflicting federal and state laws on labeling prohibited it from including a warning. As Bayer faces many similar suits and because this ruling is a split from a decision from a US District Court in Georgia that sided with Monsanto (now pending in the Eleventh Circuit), some predict that Bayer will ask the Supreme Court to weigh in.  See the order and a report from The Courthouse News.

 

May 21, 2021 in Appellate Advocacy, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)

Tuesday, May 18, 2021

Mandates Matter

Mask-wearers-in-mill-valley-california

    We hear a lot about mandates these days. Politicians claim mandates when they eke out wins. Social media warriors fight over when masks should be worn. And state and federal officers joust over social distancing and mask mandates in public spaces. But if you are an appellate practitioner, one mandate you should definitely pay attention to is the one that actually ends your appeal.

    The judgment of the court does not end an appeal. The mandate does. The mandate terminates the jurisdiction of the case in the court of appeal and returns it to the district court (or, in rare cases, the Supreme Court) for action. Thus, even if a case is simply affirmed, the mandate must first issue before the district court can enter judgment. And if there is any additional action necessary, such as with a remand, the mandate will define exactly what actions can be taken (with certain exceptions, of course).

    Federal Rule of Appellate Procedure 41 provides that a mandate can either be a formal document entire in itself, or can simply be "a certified copy of the judgment, a copy of the court's opinion, if any, and any direction about costs." FRAP 41(a). Because it is the mandate that controls, close attention should be paid to the directions it contains.

    The mandate must issue 7 days after the time to file a petition for rehearing expires, or 7 days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. FRAP 41(b). It is important to note what does NOT extend the deadline for the mandate - motions for extensions of time to file petitions for rehearing, for instance, do not extend the deadline. Neither does the filing of a petition for writ of certiorari.

    In the case of either a motion to extend or the filing of a petition for writ of certiorari, a party can (and should) move the court to stay issuance of the mandate pending action. To stay issuance for filing of a petition for writ of certiorari, the party must show that the petition "would present a substantial question and that there is good cause for a stay." FRAP 41(d)(2)(A). If the request is denied by the court of appeals, it can be renewed in the Supreme Court under its Rule 23.

    If a stay is granted for a certiorari petition, it can only be for an initial maximum period of 90 days from entry of judgment, mirroring the time period for filing the petition. FRAP 41(d)(2). The stay can be extended on a showing of good cause, or upon notice that the deadline to file the petition has been extended or that the petition has actually been filed (in which case the stay is extended until the petition is disposed). FRAP 41(d)(2)(A),(B). If the Supreme Court denies the petition, the mandate immediately issues. FRAP 41(d)(2)(B)(4).

    Close attention should be paid to the interplay of the mandate and any supersedeas bond. Such bonds stay execution of any judgment and remain in effect until their terms are fulfilled. See FRCP 62(b). Some bonds may be written to end upon issuance of the mandate. Thus, even if an appeal is pending, if the mandate issues, collection could begin without the proper stay being requested.

(Image attribution: Mask-wearers in Mill Valley, Calif., 1918. (Photo by Raymond Coyne/Lucretia Little History Room, Mill Valley Public Library/Public domain.) Proving that there has always been someone with their nose sticking out.)

May 18, 2021 in Appellate Practice, Appellate Procedure, Federal Appeals Courts, United States Supreme Court | Permalink | Comments (0)