Great Use of Pictures in an Appellate Brief

The issue in Foster v. Chatman, currently in the briefing stages in front of SCOTUS,  is whether prosecutors in a capital case violated Batson by intentionally striking black jurors on the basis of race. Not only did prosecutors strike all four black jurors from the panel while claiming facially race-neutral reasons that would apply equally to unstricken white jurors, but the defendant later uncovered documentary evidence that prosecutors had conspired to strike all the black jurors.

To highlight that latter point, the Petitioner's brief copy-and-pastes photos of the prosecutors' damning work product into its Statement of the Case section. Pet. Br. 15-16. The effect is terrific: the photos display jury selection worksheets in which the black jurors' names are highlighted and marked with a "B"; juror questionnaires on which prosecutors circled the word "BLACK" that jurors had filled into the race category; and another document on which prosecutors labeled black jurors "B#1," "B#2," etc.

As the Petitioner's brief amply demonstrates, when the pictorial evidence supports your position that strongly, you should include it within the body of your brief.

The Chief Justice’s Obergefell Dissent and His View of the ‘Judicial Role’

     Obergefell is now in the books, and same-sex marriage is the law of the land. In this post, I lay out a few of my thoughts, not on Justice Kennedy’s majority opinion, but on the lead dissent in the case, written by Chief Justice Roberts.

First, the dissent is classically the Chief’s, representing the sort of concern for the Court’s legacy and role that we would rightly expect from a Chief Justice. For instance:

• “Those who founded our country would not recognize the majority’s conception of the judicial role.” (Op. at 25);
• “When decisions are reached through democratic means, some people will inevitably be disappointed with the results. But those whose views do not prevail at least know that they have had their say, and accordingly are—in the tradition of our political culture—reconciled to the result of a fair and honest debate.” (Op. at 26); and
• “[A] Justice’s commission does not confer any special moral, philosophical, or social insight sufficient to justify imposing those perceptions on fellow citizens under the pretense of ‘due process.’” (Op. at 22).

Second, compared to the Chief’s dissent in Windsor, his Obergefell dissent takes a decidedly different approach to dissenting opinions. Whereas in Windsor the Chief attempted to argue that the majority opinion did not resolve future questions about gay marriage (it was Justice Scalia’s dissent that forecast the demise of anti-same-sex marriage laws), in Obergefell he has taken the opposite approach, arguing that the majority’s opinion paves the way for “plural marriage.” The Chief writes:

•   “One immediate question invited by the majority’s position is whether States may retain the definition of marriage as a union of two people.” (Op. at 20);
•   “It is striking how much of the majority’s reasoning would apply with equal force to the claim of a fundamental right to plural marriage.” (Id.); and
•   “Although the majority randomly inserts the adjective “two” in various places, it offers no reason at all why the two-person element of the core definition of marriage may be preserved while the man-woman element may not.” (Id.).

The Chief ultimately suggests that there may be “relevant differences that compel different legal analysis.” (Op. at 21). But he makes no attempt to say what those differences may be, and indeed, the tenor of his opinion suggests he thinks Obergefell removes the bulwarks that would otherwise prevent some 500,000 polyamorous American families (id.) from enjoying the due process right to marriage the majority establishes.

Third, the Chief observes, correctly I think, that there is a difference, for equal protection purposes, between the right to the title of “marriage” and the rights to the benefits marriage has traditionally conveyed upon its members. The challenged laws in Obergefell were not laws that deprived same-sex couples of the many benefits of marriage (spousal hospital visitation; adoption; trusts & estates; tax incentives), but merely deprived them of the right to “marriage.” A law depriving same-sex couples of tax benefits presents a far greater equal protection concern than a law that tells same-sex couples only that they are not entitled to call themselves “married.” As the Chief says, “[t]he equal protection analysis might be different, in my view, if we were confronted with a more focused challenge to the denial of certain tangible benefits.” (Op. at 24).

That thought mirrors one I’ve had: that the same-sex marriage movement has done a masterful job of eliminating the term “civil union” from our national discourse. A state providing for same-sex civil unions—so long as those unions conveyed all the same benefits as marriage, while withholding only its title—would present a much closer equal protection challenge, and might even survive such a challenge. But by pretending that there was but one choice (marriage or non-marriage), the challengers teed up a challenge that really was never there. That is, it presented the Court with a false choice between rights or no rights. But that choice needn’t have been made.

While the “psychic harm” or stigma of not being permitted to “marry,” despite the fact that a couple enjoys all the traditional benefits of marriage, may nonetheless offend the equal protection clause, that is far from clear. That issue probably should have been decided. 

Presidential Comments About Pending SCOTUS Decisions

At VC, Professor Adler has a useful post discussing a forthcoming study reporting that President Obama has commented on pending SCOTUS decisions with more frequency and more depth than previous presidents. I agree with Adler that the President's practice is a poor one, since it lends the impression that the Court is not a neutral body and is subject to external influence. Adler distinguishes, as would I, between comments made during deliberations (inappropriate) and comments made before argument and during the briefing (appropriate). 

I would add that the reason for this President's increased rhetoric concerning pending cases is not likely merely the fact that he was a U.Chicago law professor, but also because the Supreme Court has now heard three cases threatening the President's signature legislative achievement: Obamacare. 

We all remember the first go-round, where the Court voted 5-4 to uphold the individual mandate on tax grounds. Then, there was rampant speculation--apparently confirmed from within the Court itself--that the Chief Justice had changed his conference vote, where he had initially sided with the dissenters to strike down the law. That was around the time the President began ma

Then there the RFRA challenge brought by the private, religious employers. And now Obamacare is again in serious jeopardy with this year's challenge to the federal subsidy provisions. 

The President campaigned vigorously in the press and public to get the law passed; to promote the law and the use of the healthcare exchanges; and later to defend the law from challenges in the Court. So far as I am aware, other presidents have not faced similar efforts by litigants to strike down their signature legislative accomplishments while the president was in office. 

Kansas Governor OK's Remarkable Invasion Of Judicial Branch

In an apparent act of retaliation against the Kansas Supreme Court for striking down an earlier law dealing with education, the Kansas legislature and Governor Sam Brownback have passed and signed a law funding the judicial branch but simultaneously threatening to defund the branch if it strikes down the funding law. And there is reason to think the courts might: The law purports to vest the authority to select chief district judges in the State's district judges themselves, not in the Kansas Supreme Court. The State constitution gives the supreme court "general administrative authority over all courts in this state."

According to NYT, critics of the law accuse the governor of attempting "to stack the district courts with judges who may be more favorable to his policies."

A threat to defund the entire judicial branch sounds like an unrealistic threat to me, but it's there nonetheless. 

Coalition for the Protection of Marriage Accuses 9th Circuit of "Panel-Packing"

In a cert petition filed on April 9, the anti-same-sex marriage group Coalition for the Protection of Marriage accuses the Ninth Circuit of "panel-packing" in order to tip the scales in favor of challengers of Nevada's prohibition on the recognition of same-sex marriage. The coalition defines "panel-packing" as "assigning a case to a three-judge panel of particular judges with the intent of influencing the outcome." Pet. at 27. 

Here are the facts the Coalition alleges to substantiate its panel-packing challenge (Pet. at 29):

From January 1, 2010, to October 13, 2014, the Ninth Circuit had assigned to merits panels eleven cases involving the intersection of federal constitutional rights and sexual orientation law (the “Relevant Cases”), as were listed and described in a table included among the exhibits to the Petition (Dkt. No. 274-2 at 6-10). Judge Berzon was on five of those panels. Dkt. No. 274-2 at p. 6. Judge Reinhardt had the next highest number, with four panel assignments. Id. With two, Judges Schroeder, Thomas, and Alarcón are the only other judges with more than one assignment. Id. Seventeen judges, including District Judge Bennett, received one assignment. Id. Eighteen of the judges with active status during any part of the relevant time period received none. 

A serious statistical discrepancy indeed! 

(Because it will no doubt need saying, the previous line was uttered sarcastically. The Coalition does cite,however, a statistician who claims the odds of these panel make-ups is 441-to-1. See Pet. App. at 191a.)

The Coalition goes on to argue that "Careful statistical analysis indicates a high likelihood that the number of Relevant cases assigned to Judges Reinhardt and Berzon, including this and the Hawaii and Idaho marriage cases (which the petition treated as one for these purposes), did not result from a neutral judge assignment process." (Pet. at 29). It also cites the wisdom of the "reasonable person," who simply wouldn't believe that gay-marriage friendly judges could have been so fortunate to find themselves on 5 panels hearing gay-marriage cases (Pet. at 31):

The appearance of unfairness is not a close question here. Even without the aid of professional statisticians, a reasonable person will immediately sense that something is amiss when one judge out of more than thirty is assigned over a four and one-half year period to five of a circuit’s eleven Relevant Cases involving a particular issue, and when both that Judge and another Judge with respect to whom assignment disparities also exist, are assigned to the most momentous of those cases, here involving same-sex marriage. That sense will deepen on realizing that eighteen of the judges with active status during any part of the relevant time period were assigned to none of the eleven Relevant Cases. That sense will deepen even further because of the appearance, arising from widely shared public perceptions, that Judges Reinhardt and Berzon’s presence on the panel favored one side over the other.

It's not the first time the Coalition has raised this argument. It did so in its petition for rehearing en banc back in 2014. Chief Judge Kozinski, for his part, has denied that any type of panel-packing occurred, as did the Ninth Circuit's top administrator. 

Remarkably, the Coalition fails to cite to a recent law review article by respected professors Adam Chilton (Chicago) and Marin Levy (Duke), Challenging the Randomness of Panel Assignments in the Federal Courts of Appeals. The article was quite math-y and involved graphs. In short, it was well beyond my ken. But I ferreted out one of the relevant conclusions: "there is evidence that the ideological balance of panels is non-random in four circuits: the D.C. Circuit, the Second Circuit, the Eight Circuit, and the Ninth Circuit." At 31. 

Either way, the Coalition's position here sounds like sour grapes.

An Entertaining Kagan Footnote On "Acre-Foot of Water"

In today's decision Kansas v. Nebraska, the Court resolved a water rights dispute. I enjoyed footnote two of the opinion. You can just imagine Kagan reading this paragraph aloud:

"An acre-foot of water is pretty much what it sounds like. If you took an acre of land and covered it evenly with water one foot deep, you would have an acre-foot of water." 

REBLOG: Steven Klepper On Fourth Circuit "Soft Precedent"

Here's a great blog post from Steven Klepper, the editor of Maryland Appellate Blog. Klepper discusses the various reasons underlying the Fourth Circuit's unusual practice of designating lengthy, divided opinions as "unpublished." His conclusion? The court designates some divided opinions as unpublished to avoid creating binding precedent in the circuit, thus giving other panels an opportunity to differ on the same issue without having to go en banc.