Wednesday, February 13, 2019

Justice Kagan Brings the Heat in Dunn Dissent

Domineque Ray
Undated photo
Alabama Dep't of Corrections

Justice Kagan recently made waves for her impassioned dissent in the Court’s most recent death penalty decision. In Dunn v. Ray, the 5-4 majority vacated a stay of execution and allowed Alabama to execute Domineque Ray without the presence of his requested spiritual advisor, an imam. The majority opinion reads, in full:

The application to vacate the stay of execution of sentence of death entered by the United States Court of Appeals for the Eleventh Circuit on February 6, 2019, presented to JUSTICE THOMAS and by him referred to the Court, is granted.
On November 6, 2018, the State scheduled Domineque Ray’s execution date for February 7, 2019. Because Ray waited until January 28, 2019 to seek relief, we grant the State’s application to vacate the stay entered by the United States Court of Appeals for the Eleventh Circuit. See Gomez v. United States Dist. Court for Northern Dist. of Cal., 503 U. S. 653, 654 (1992) (per curiam) (“A court may consider the last-minute nature of an application to stay execution in deciding whether to grant equitable relief.”).

Unlike the sterile majority opinion, Justice Kagan’s dissent tells a powerful story:

Holman Correctional Facility, the Alabama prison where Domineque Ray will be executed tonight, regularly allows a Christian chaplain to be present in the execution chamber. But Ray is Muslim. And the prison refused his request to have an imam attend him in the last moments of his life.

Lethal injection chamber at Holman Correctional Facility
Photo courtesy of AP
Time” words cleverly and convincingly draw attention to the majority’s flawed opinion that Ray’s request to have an imam present was untimely:

The Alabama prison where Domineque Ray will be executed tonight . . . refused his request . . . . Yesterday, the Eleventh Circuit . . . stayed Ray’s execution . . . . Today, this Court reverses that decision . . . .

Justice Kagan also employs a series of rhetorical questions contrasted with short, clipped “answers” from the State to support her position that the State is attempting to push the execution through quickly:

Why couldn’t Ray’s imam receive whatever training in execution protocol the Christian chaplain received? The State has no answer. Why wouldn’t it be sufficient for the imam to pledge, under penalty of contempt, that he will not interfere with the State’s ability to perform the execution? The State doesn’t say.

Short transitions, such as but, and, and so (rather than nonetheless, additionally, therefore, etc.), advance Justice Kagan's story about why the majority’s opinion is factually and legally flawed and do so in a way that makes the argument even more compelling. And Justice Kagan’s final sentences (minus her respectful dissent) are commanding:

Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.

The “short-circuit” term is masterful—per Justice Kagan, the Court is literally shorting the Circuit an opportunity to hear a claim that it wanted to consider. And referring to the State’s “preferred” execution date underscores what Kagan sees as the flippancy with which the majority has made a decision of great constitutional magnitude.

Elbert P. Tuttle Courthouse
Eleventh Circuit Court of Appeals

Compare Justice Kagan’s cool, clean sentences with the type we’re used to reading in many opinions, and you’ll see why her writing is so, so good:

Justice Kagan
The Alternative

Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death.
In this case, the defendant has advanced a potentially meritorious contention that his religious rights will be violated if the State goes forward with its planned execution.

The Eleventh Circuit wanted to hear that claim in full.
The Eleventh Circuit granted the defendant’s petition for stay of his execution to fully consider his First Amendment Establishment Clause claim.

Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.
Nonetheless, this Court has prematurely and improperly taken that decision out of the Eleventh Circuit’s hands in favor of allowing the State to proceed to carry out Ray’s death sentence.

The death penalty remains—rightly so—one of the most hotly debated issues in American law. Justice Kagan’s opinion stokes that continuing fire.  

Friday, November 30, 2018

The Chief's Well-Written Weyerhaeuser Opinion

On November 27, 2018, Chief Justice Roberts issued the Court’s unanimous opinion in Weyerhaeuser v. United States Fish and Wildlife Service. Weyerhaeuser involves the Service’s designation of property in Louisiana as a “critical habitat” of the endangered dusky gopher frog. The problem, according to Weyerhaeuser, the owner of part of that property, is that no dusky gopher frogs have been observed on the site since 1965, and the current tree farm on the site has created a closed-canopy that Weyerhaeuser claims is inhospitable to the frog.

This case is particularly interesting to me because I teach and write on animal law. The opinion contains many classic Chief Justice Roberts techniques and is another example of why he is one of the two best writers on the Court.

The Description of the Dusky Gopher Frog

Chief Justice Roberts begins with a lengthy description of the dusky gopher frog:

The amphibian Rana sevosa is popularly known as the “dusky gopher frog”—“dusky” because of its dark coloring and “gopher” because it lives underground. The dusky gopher frog is about three inches long, with a large head, plump body, and short legs. Warts dot its back, and dark spots cover its entire body. It is noted for covering its eyes with its front legs when it feels threatened, peeking out periodically until danger passes. Less endearingly, it also secretes a bitter, milky substance to deter would-be diners.

The Chief is known for including this type of peripheral but interesting information in his writing and has been doing so since his time as an advocate.

As Greg Lipper (@theglipper) noted, these details add interest and encourage the reader to continue reading this “technical” opinion on statutory interpretation and reviewability of agency action. Chief Justice Roberts used the same technique when he represented Alaska in Alaska v. EPA, another technical but more complicated case involving statutory interpretation and reviewability.

And Jamie Santos (@Jamie_ASantos) is right too—including these types of details can be tricky, and Chief Justice Roberts does it very well. A brief with too many irrelevant details can come off as unfocused or campy, so this technique must be employed with great care.

A Description of “[H]ow [A]djectives [W]ork”

One issue in the case turns on the meaning of the phrase “critical habitat.” Chief Justice Roberts writes:

According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of an endangered species.

I love both this description and the unstuffiness of it. Many would be tempted to write “the way in which adjectives operate in the English language.” Chief Justice Roberts resists that temptation—“how adjectives work” is a wonderfully short description.

Avoiding First, Second, Third etc.

I don’t love the formulaic “first, second, third” argument markers, but they are better than nothing.* Jamie Santos noted recently, though, that replacing these markers can take writing to the next level. 

Chief Justice Roberts does this expertly in the Weyerhaeuser opinion.

There is, at the outset, reason to be skeptical of the Service's position. The few cases in which we have applied the § 701(a)(2) exception involved agency decisions that courts have traditionally regarded as unreviewable . . . .

Although the text meanders a bit, we recognized in Bennett v. Spear, 520 U.S. 154 (1997), that the provision describes a unified process for weighing the impact of designating an area as critical habitat. . . .

The use of the word “may” certainly confers discretion on the Secretary. That does not, however, segregate his discretionary decision . . . .

Section 4(b)(2) requires the Secretary to consider economic impact and relative benefits before deciding whether the exclude an area from critical habitat or to proceed with a designation….

Chief Justice Roberts’ explanation of the Court’s reasoning avoids the unimaginative “first, second, third” problem:

There is, at the outset, reason to be skeptical of the Service’s position. First, the few cases . . . .

Second, although the text meanders a bit . . . .

Third, the use of the “may” certainly confers discretion . . . .

Fourth, Section 4(b)(2) requires the Secretary to consider . . . .

While I don’t love the outcome from an animal law perspective, the opinion is interesting and the reasoning well-explained. There’s still hope for the dusky gopher frog, though—the Court remanded the case and directed CA5 to consider questions it did not answer regarding the definition of “habitat.” And even though the Court found the Service’s decision reviewable, that decision is subject to the permissive abuse of discretion standard.

*Avoid “firstly, secondly, thirdly” at all costs.

Wednesday, August 29, 2018

A Conversational Cert in the Style of Justice Kagan

As Ross Guberman and others have pointed out, conversational legal writing is becoming more and more popular. Justice Kagan is known for her conversational style—she’s said that she wants her opinions to “sound like” her and tries “very hard to make [them] understandable to a broad audience.”

I wondered if Justice Kagan’s writing style is starting to rub off on some of the advocates who appear before the Court. So I looked at a cert petition filed recently on behalf of Lamps Plus, Inc. by Andrew Pincus of Mayer Brown’s Supreme Court and Appellate practice group.

I can definitely see some of Justice Kagan’s conversational style in this cert petition, though the authors still lean heavily on formal language and sentence structure. But I like that advocates are at least attempting to move away from the stuffy formality that has plagued legal writing.

For example, “first,” “second,” etc. are helpful markers for the reader, but they get old, especially if used too many times in a document, and they aren’t words we generally use when speaking. 

So rather than choosing “first,” the Mayer Brown team uses “to begin with”:

To begin with, the canon is inapposite . . .

And then, instead of saying “regardless,” they start the next sentence with the less formal “in any event”:

In any event, the FAA forecloses the panel majority’s reliance on a state-law canon . . .

I also enjoy the colloquial [o]n the one hand and [o]n the other hand rather than the more formal “conversely,” “nevertheless,” or “however.”

And the Mayer Brown lawyers use other language that makes their cert petition more interesting, snappy, and readable:

As the concurring Justices put it . . . (not “stated,” “said,” or a similar word)

The panel majority’s opinion cannot be squared with (as opposed to “is inconsistent with”) the settled principles just discussed.

Indeed, class arbitration is a worst-of-both worlds hybrid of arbitration and litigation. (I probably would have gone with “best-of-both-worlds hybrid.”)

The panel majority next brushed aside (instead of eschewed) the multiple portions of the Agreement demonstrating the parties’ intent to engage in traditional, bilateral arbitration.

And the “remedy” provision says nothing about (rather than “does not speak to”) the availability of a class action . . .

The Mayer Brown cert petition still does contain many “lawyer” words (“moreover” seems to be a favorite), but it feels like a step in the right conversational direction.

The Supreme Court granted the petition and will consider whether the lower court erred in interpreting an arbitration agreement to authorize class arbitration in Lamps Plus v. Varela.

You can find the petition here and coverage of the case on SCOTUSblogOral argument is set for October 29, 2018.