Do Briefs Matter?

I suspect many lawyers have had the experience of briefing and arguing a case before an appellate court, and then receiving an opinion back from the court that seems like it was written for another case, with the court simply not engaging with the parties’ major arguments.  Although anecdotes along these lines abound, no rigorous studies are available to show us how common such judicial nonresponsiveness is.

Part of the problem is that researchers would have to read a large volume of briefs and opinions, and then painstakingly sort out exactly which arguments were addressed and how thoroughly.  Not only would the work be tedious and time-consuming, but it would also be subject to reliability concerns in light of the subjectivity in deciding whether and how satisfactorily a court has responded to an argument.

Chad Oldfather, Joseph Bockhorst, and Brian Dimmer ’09 think they have a solution to these difficulties: automated research that uses computers to compare a large number of briefs and opinions quickly and objectively.  They describe their project in a new paper on SSRN entitled “Judicial Inaction in Action? Toward a Measure of Judicial Responsiveness.”  

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Most Important United States Supreme Court Case in Refugee Law: I.N.S. v. Elias-Zacarias

[Editor’s note:  This is a sixth installment in the “what is the most important Supreme Court case in your subject area” series.]

One of my subject areas is refugee law. There are only a handful of Supreme Court decisions in the area, but instead of making the selection easier, the paucity of case law only made it harder to choose one case as the “most” important.  Because the Court has interpreted the Refugee Act relatively rarely, each of its decisions in the area has taken on even more significance than it might otherwise have had.  For instance, it is difficult to overstate the impact of the decision in Sale v. Haitian Centers Council, Inc., the repercussions of which still plague the international refugee law system, because the Court said that the United States could stop and return Haitians at sea, without verifying whether they were refugees, seemingly in direct conflict with the highest principle of international refugee law, “non-refoulement,” or, “non-returning,” of refugees. And what about the pair of cases, INS v. Stevic and INS v. Cardoza-Fonseca, which, prior to Sale, held that the Refugee Act  created two distinct categories of refugees, those whom the U.S. had promised not to return to their persecutors and those whom the U.S. could, in its discretion, allow to stay in the U.S. (a distinction generally not recognized by any of the other nations who signed the refugee treaties)?

In the end, of course, it’s impossible to identify a single case as most important. But I decided to write about INS v. Elias-Zacarias, 502 U.S. 478 (1992), because its holding, that an asylum applicant must provide direct or circumstantial evidence establishing the alleged persecutor’s motivations, has had such dramatic, and (I hope) unintentional impacts on refugee law and practice in the United States.  One could even argue that the extreme disparities in judges’ decisions in similar asylum cases stem, at least in part, from the near-impossibility of reliably applying Elias-Zacarias‘s demand for evidence of the persecutor’s motive, in the context of the record that can reasonably be developed in the vast majority of asylum cases.

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Iowa Vote Reflects Dissatisfaction With Both Gay Marriage and the Judiciary

In an earlier post, David Papke called attention to the defeat in a retention election of Iowa Supreme Court justices David Baker, Michael Streit, and Chief Justice Marsha Ternus.  It is clear that the three were removed from the court by the voters because of their support for the view that the Iowa Constitution implicitly guarantees the right of same-sex couples to marry.

Because a majority of Iowa voters disapproved of their performances on the bench, the terms of all three justices will expire on December 31.

I have been studying the 2010 Iowa election, which did indeed produce some interesting results.   The vote reflected, I would argue, not just hostility to gay marriage (which it certainly did) but also a growing hostility to the judiciary generally.

Judicial retention votes have been a regular feature of Iowa’s judicial system since 1962.  All judges are appointed by the governor, but every judge has to stand for an up-or-down approval  vote in the year after he or she is appointed and then every eighth year after that.  Anti-retention majorities have been extremely rare.  Before 2010, no Supreme Court justice had ever been removed through this process, and most lower-court judges where retained by very large majorities.

In 2010, Iowans were not inclined to throw out members of the judiciary as a whole, but the percentage of voters who expressed dissatisfactions with their own judges increased significantly.  Seventy-four state judges were subject to a retention vote this month, and 71 (all, save the three Supreme Court justices) were retained.  However, in these 71 “races” there was evidence of growing hostility to the judiciary generally.  Of the 71 retained judges, 13 received votes of approval from less than 60 percent of the electorate, with the lowest scoring judge retained by a margin of 55.09 percent to 44.91 percent.  At the other end of the spectrum, only 10 judges received over 70 percent of the votes for retention with the highest percentage being 74.17 percent.

In other words, in the judicial retention elections involving judges not on the Supreme Court, somewhere between 25.83 percent and 44.91 percent of voters expressed a preference that the judge not be retained.  On average, it appears that the anti-retention percentage for non-Supreme Court judges was approximately 35 percent of the electorate.   This figure represents a significant increase in hostility to the judiciary from 2006, when the anti-retention vote was 25.7 percent.  In fact, this represents an acceleration of an already existing trend toward increasing numbers of Iowa voters opposing the retention of existing judges.  In 1972, for example, only 15.6 percent of Iowa voters cast anti-retention ballots.

Whether this increase in anti-retention voting was primarily a consequence of dissatisfaction with the Supreme Court is difficult to say at this point.

In the Supreme Court retention voting, anti-retention voters counted for 54.2, 54.44, and 55.04 percent of those expressing an opinion on Justices Baker and Streit, and Chief Justice Ternus, respectively.  These totals exceeded the average anti-retention percentages by approximately 20 percent.  In terms of raw vote totals, the anti-retention votes exceeded the pro-retention votes by approximately 99,000 out of a total vote of 979,000.

The removal of Justices Baker, Streit, and Ternus leaves in place four justices on the Iowa Supreme Court who supported a constitutional right of gay marriage in Varnum v. Brien.  The three replacement justices, who will take office on January 1, will be appointed by Iowa’s newly elected Republican Governor Terry Branstad.  Branstad criticized the Varnum decision during his campaign, and he endorsed the idea that Iowa needs to adopt a new method of choosing state supreme court justices.  (Ironically, Chief Justice Marsha Ternus, one of the justices voted out on November 2, was appointed by Branstad during his earlier stint as Iowa’s governor.)

Although it has not been extensively noted outside of Iowa, the results of the 2010 gubernatorial and legislative elections may well pose an even greater threat to the continuation of the right of gay marriage in the Hawkeye state.

In the aftermath of the Iowa Supreme Court’s Varnum decision, Republican lawmakers in the state legislature attempted a number of maneuvers designed to undermine the decision or to change the way in which members of the state’s highest court were selected.   With Democrats controlling the governorship and both houses of the legislature by substantial margins, such efforts seemed doomed to failure.

However, that situation changed dramatically on November 2.  Not only did the Republicans gain control of both the governor and lieutenant governor positions, they also took control of the state House of Representatives, turning a 44-56 deficit into a 58-42 majority.   Democrats retained control of the state Senate, but their margin of control shrank from 32-18 to 27-23, as Republicans won 15 of 25 races, including 12 of 15 contested seats.  With the Lieutenant Governor Kim Reynolds capable of casting a tie-breaking vote, the support of just two Democrats in the Senate will be enough to secure the passage of Republican backed legislation.

Moreover, in 2012, a fourth member of the Varnum majority — Justice David Wiggins — will face a retention vote.  If he is removed, and Gov. Branstad appoints an anti-gay marriage replacement, a new majority will be in place by January 1, 2013, to overturn Varnum v. Brien and in doing so bring the marriage law of Iowa into line with that of other Midwestern states.

A detailed breakdown of the 2010 Iowa vote can be found on the website of the Iowa Secretary of State,   For totals in previous Iowa judicial retention elections, see Larry Aspin, “Judicial Retention Election Results, 1964-2006,” 90 Judicature 208, 209 (2007).

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