NEWS AND NOTES FROM THE APPELLATE WORLD

(Posted June 10, 2021) The Robes by the James don’t have any new published opinions today, so let’s take a look around and see what’s happening across the appellate landscape.

SCOTUS term winds down

While I don’t usually cover appellate issues arising on the incorrect side of the Potomac, things always get interesting up there as June unfolds. The end of June is the traditional end of the Supreme Court’s terms, and it always seems that the Court holds the major news-item decisions for late in the month. That makes it worth a look, even for folks who don’t have Virginia-related business up there.

In normal years, the Court clears its docket by the last day of June and heads into a summer recess. Last year, the justices entertained delayed oral arguments in May because of the courthouse’s closing during the pandemic. That led to the latest announcement of SCOTUS decisions in a given Term in recent memory, on July 9, 2020. These were the first July announcements from the Court since the 1980s.

True to form, the last decisions of that Term were hot-button cases: Trump v. Mazars USA and Trump v. Vance, on subpoenas for the former president’s financial records; and McGirt v. Oklahoma, in which the Court ruled that a vast section of that state, including part of the City of Tulsa, was sovereign turf for the Creek Indian Tribe. I commend to you Justice Gorsuch’s almost poetic opening to the McGirt majority opinion, which begins with, “On the far end of the Trail of Tears was a promise. …”

This year, one of the most interesting aspects of Courtwatching is the number of still-undecided appeals argued during OT20. The Court hands down one opinion this morning, leaving a whopping 21 still to be decided.

For most of the year, the Court announces opinions on scattered Mondays. Once June arrives, it customarily adds Thursday opinion days, rather than drop a front-end loaderful of opinions on a single day. And in the last week of the month, it sometimes adds a Wednesday opinion day.

I don’t know if the Court will again dip a toe into July’s waters, but if not, it has a lot of opinions to hand down in very few potential likely days. There are three Mondays and two Thursdays left in this month. If the Court decides to clear its docket on those days, we’re looking at four opinions per day, which is a whopper of an average. And yes, there are still some major-news-item cases left to be decided.

Some interesting essays

My appellate pal John Koehler has posted a non-appellate, but still interesting, essay on the labor-market dynamic. Perhaps it’s the Econ-major geek in me, but I found his views to be fascinating.

Elsewhere, Jay O’Keeffe posted several interesting essays on his site, De Novo, in May. Jay writes very well, and I always enjoy a venture to his site.

The latest on CAV expansion

As noted in this space recently, the General Assembly has some important summertime homework this year, as it’ll fill seven vacancies on the Court of Appeals of Virginia. The legislature reopened the application process some time ago because it felt that the previous window was too short and the applicant pool wasn’t exactly diverse. I haven’t heard any word as to when the Governor will call a special session to choose the new Robes, but it can’t drag out too long; the Court of Appeals will have a significantly increased workload starting in January, and those new judges will need time to get judge training and get up to speed on the court.

Lest we forget, there’s much more that has to happen before January 1 besides choosing judges. A committee even now is poring over the Rules of Court to determine what amendments will need to be made before the CAV’s jurisdiction expands. The Attorney General will hire 27 new lawyers – appellate lawyers, all! – to handle the anticipated uptick in merits appeals on the criminal side. The Indigent Defense Commission gets seven more appellate lawyers, too. I expect that both Chief Staff Attorneys – in the Supreme Court and the Court of Appeals – will add more staff, too. And even all of this says nothing about the private sector. John’s essay on the labor market is looking to be more topical than you might think.

Final SCV argument session of 20-21 term

If you blinked, you missed this week’s argument docket in the Supreme Court of Virginia. The justices entertained just ten appeals over two court days in the June session.

Unlike their colleagues in Washington, Virginia’s Robes don’t save their sexiest appeals for the end of June … but sometimes it works out that way. Two of this week’s ten were appeals about the statue of General Lee on Monument Avenue in Richmond. A circuit court had ruled that citizens, including those who live near the statue and at least one descendant of the original donor, couldn’t prevent the Commonwealth from removing the monument. Despite this ruling, the court enjoined the Commonwealth from proceeding with the removal pending an appeal.

This last part seems incongruous to me; if a court rules that a petitioner doesn’t make out a case for an injunction, but then orders the injunction anyway, what’s the basis for that order? I don’t know if the parties addressed that on appeal.

What I do know is that the justices allotted 70 minutes for oral argument in the two appeals, but the lawyers used only 30; 20 in the first appeal and 10 in the second. This was no doubt due in large part to an astonishing development: No member of the court asked a single question of any of the lawyers, in either appeal. Not a peep from the court.

Personally, I never enjoy delivering what I call the Easter Island argument, where I give a speech to silent, stone-faced justices. I want them to interrupt me, early and often, so I can find out what’s on their minds, and then address those concerns. This week’s advocates may have felt similarly frustrated, or they may just have been relieved that they were able to finish their arguments and get away from the lectern with all their limbs still attached to their torsos. (Oral arguments these days are much safer in this respect, because the justices can’t maim you when they’re only watching you on a computer screen.)

I normally stay out of the prognostication racket with undecided appeals, because it’s devilishly hard to make a good living by wagering on the outcome of these cases. Oh, you could generate a fair return by always betting on affirmance in criminal appeals, here and in the CAV; but you’d get such poor betting odds (because of the lopsided outcomes) that it would take you a long time to amass a substantial bankroll. Besides, I know of no one who makes book on SCV rulings.

Here, though, if I had to place a gentleman’s wager, I’d bet that the court will affirm. The issue here is whether one generation of Virginians can bind all future generations to do something that those future Virginians may find uncomfortable or even abhorrent. Yes, it looks like the Commonwealth entered into a contract in the Nineteenth Century to keep and honor the Lee statue. But this is a matter of compelled speech – compelled government speech, no less. Do modern Virginians have a say in this, to allow their Commonwealth’s public speech to reflect modern mores?

Let’s take an easy example to show why today’s Virginians have that right to decide for themselves. If you posit the opposite conclusion, that a contract is a contract and we just have to live with what our ancestors agreed to do, we can explore how far that principle goes. Hypothetically, suppose that instead of an equestrian statue, the Nineteenth Century Commonwealth accepted one that depicted a snarling overseer, holding a whip and standing menacingly over two cowering slaves. The engraved base of the monument contains the words, “To the Eternal Subjugation of the Negro.” Maybe the last word is less benign; you get the idea. In accepting the monument, those Nineteenth Century Virginians, acting through their government, contracted that the statue would stand, preserved, protected, and honored, for all time.

I’m not a Supreme Court insider and never have been, but I’m confident that it would take the modern court all of two and a half seconds to rule that a contract like that is repugnant to modern public policy. Such a statue would be gone in no time.

You may posit that the Lee statue isn’t like that; you may perceive that it’s an honorable depiction of one of Virginia’s most prominent native sons. But the point in this litigation – as contrasted with the entirely separate political debate over the statue’s fate – isn’t whether the monument is or isn’t tasteful, or whether Lee is or isn’t worth honoring. The issue is whether a contract like this is enforceable against modern mores, when the Commonwealth has moved on.

I expect the court to affirm, and to do it unanimously. The decision could come at any time; this may be one of those appeals where the court won’t wait until a Thursday.