Friday, February 26, 2016

"Come at the King, You Best Not Miss"

Texas judges and justices seem to write some of the more entertaining judicial opinions. We've seen Justice Willett's Lion King concurrence and dissent in El-Ali v. State and Justice Lehrmann's citation to The Big Lebowski on prior restraint.

Now, we get Judge Newell of the Texas Court of Criminal Appeals quoting The Wire in the high-profile criminal case against former Texas governor Rick Perry. I wrote about the Perry case several years ago when Perry's legal team filed a motion to dismiss the charges and contrasted Perry's lack of power over the purse with the almost absolute power exercised by Caesar Augustus and Louis XIV.

The Court of Criminal Appeals recently dismissed the indictment against Perry. Judge Newell, in concurring, cited Omar Little, notorious robber of drug dealers on HBO's The Wire:

"Come at the king, you best not miss."

You can read the majority opinion here and Judge Newell's concurrence here.

Happy Friday!

Tuesday, February 16, 2016

In Memoriam: The Writing of Justice Scalia

Steve Petteway
Collection of  the Supreme Court
of the United States
As we all know, Justice Scalia passed away unexpectedly last weekend at the age of 79. Justice Scalia's ideologies and judicial philosophies made him a lightning rod for criticism, even in death. Those ideologies aside, most of us who study legal writing agree that Justice Scalia was one of the Court's best writers. Acerbic at times, yes. But always pointed, powerful, precise--just what we're looking for in good legal writing.  Especially in dissents, which Justice Scalia was famous for.

In remembering her friend, Justice Ginsberg said that Justice Scalia's dissents made her opinions "notably better" than the drafts she initially circulated.   

My favorite piece of advocacy (yes--advocacy) from Justice Scalia is his Atkins dissent, which includes four of the most powerful sentences I've ever read. The Atkins majority held that the 8th Amendment's prohibition again cruel and unusual punishment bars the execution of the mentally retarded (the Court's words). Justice Scalia turned the tables, advancing his opinion that Atkins' crime was the only thing cruel and unusual in the case:  

After spending the day drinking alcohol and smoking marijuana, petitioner Daryl Renard Atkins and a partner in crime drove to a convenience store, intending to rob a customer. Their victim was Eric Nesbitt, an airman from Langley Air Force Base, whom they abducted, drove to a nearby automated teller machine, and forced to withdraw $200. They then drove him to a deserted area, ignoring his pleas to leave him unharmed. According to the co-conspirator, whose testimony the jury evidently credited, Atkins ordered Nesbitt out of the vehicle and, after he had taken only a few steps, shot him one, two, three, four, five, six, seven, eight times in the thorax, chest, abdomen, arms, and legs. 

I'm also fond of Justice Scalia's "monster" critique of the Lemon test in his Lamb's Chapel dissent:

As to the Court's invocation of the Lemon test: like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weismanconspicuously avoided using the supposed "test," but also declined the invitation to repudiate it. Over the years, however, no fewer than five of the currently sitting Justices have, in their own opinions, personally driven pencils through the creature's heart (the author of today's opinion repeatedly), and a sixth has joined an opinion doing so....

The secret of the Lemon test's survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will....Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.  

As for one-liners, many have cited Justice Scalia's opening in Block, issued while he was a member of the D.C. Circuit, as his best

This case, involving legal requirements for the content and labeling of meat products such as frankfurters, affords a rare opportunity to explore simultaneously both parts of Bismarck's aphorism that "No man should see how laws or sausages are made."

In a 2013 interview, Justice Scalia told Jennifer Senior of New York Magazine that his favorite one-liner was the "wolf line" from his dissent in Morrison. The Morrison case involved a separation of powers question, and in his dissent, Justice Scalia wrote: 

That is what this suit is about. Power. The allocation of power among Congress, the President, and the courts in such fashion as to preserve the equilibrium the Constitution sought to establish—so that a gradual concentration of the several powers in the same department, can effectively be resisted. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep's clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis. But this wolf comes as a wolf.

In recent years, Justice Scalia gave us some fun phrases: argle-bargle (from Windsor), jiggery-pokery and pure applesauce (from Burwell), and judicial Putsch (from Obergefell). His use of language even inspired Slate to create Antonin Scalia's "Sick Burn" Generator. My insult?

One would think that Megan's arrogance is a genetic panopticon. Words no longer have meaning.

Apropos? Ironic? Maybe both, but also "pure" Scalia.

Friday, February 12, 2016

Justice Willett, Mufasa, and the Shadowy Place

The written opinions of Justice Willett of the Texas Supreme Court
Justice Don Willett
never disappoint--at least for fans of good legal writing. Justice Willett's writing style, devoid of the legalese that plagues so many judicial opinions, is crystal clear, and his opinions are conversational and interesting.

A few weeks ago, the Texas Supreme Court decided a high-profile case involving Texas cheerleaders' right to put Bible verses on the signs they hold up at sporting events. The Court didn't make any substantive rulings on the merits as the case was before the Court on a mootness issue, In his concurrence, Justice Willett evokes images from Disney's The Lion King to (gently) suggest to the litigants and the trial court that the Court needs clarification on the trial court's rulings before the case (presumably) comes back to the highest Texas Court on appeal again.

The concurrence is worthy of a read, even if you care nothing about the issues in the case. Justice Willett's writing draws the reader in, like a good novel you can't put down. I can't do it writing "justice," so I'll just quote some of my favorite parts and let you read it for yourself:

One of the more memorable scenes in The Lion King occurs as Mufasa and Simba sit high atop Pride Rock overlooking Mufasa’s kingdom. In this granddaddy of all father-son moments, Mufasa shows Simba the territory he will inherit as king: “A king’s time as ruler rises and falls like the sun. One day, Simba, the sun will set on my time here, and will rise with you as the new king.” Simba is awestruck: “And this will all be mine?” “Everything,” says Mufasa. “Everything the light touches,” murmurs Simba in wonder. But then Simba spots dimness in the distance and turns to Mufasa for an explanation: “What about that shadowy place?” Mufasa replies, “That’s beyond our borders. You must never go there, Simba.” 

In narrowly deciding that the school district’s policy change did not moot the controversy in this case, the Court today rightfully stays within the borders of its authority, and I concur in full. I write separately, however, to ask, “What about that shadowy place?”


Bottom line: We don’t know. What does the trial court’s order accomplish? What claims have been preserved? What claims have been waived? In our pitched adversarial system, it is not uncommon for litigants to talk past each other, and uncertainty pervades the parties’ briefs to this Court. But answers to these questions are critical for they speak to the fundamental free speech and free exercise rights enshrined in our Constitution. Because this is an interlocutory appeal, the Court appropriately does not address those core merits issues, rendering Mufasa’s admonition that Simba “never go there” inapposite for the moment. 

But if this case returns to the trial court, a future appellate court, including this one, may well be required to go there. My concern is that this case may return to the trial court for a final decision only to reappear on our docket with no clarity as to what this order achieves and what claims are actually live. If that situation arises, the parties and trial court would do well to confront the shadowy place in this litigation and clarify with precision the status of this order and the cheerleaders’ claims.

The case is Matthews v. Kountze Independent School District. You can find all opinions in the case here.

Happy Friday!