Justice Kagan gave a fairly candid interview at the Ninth Circuit Judicial Conference on July 25. She touched on a code of conduct, separate opinions, collegiality, reading dissents from the bench, Chevron, and more. Pretty good stuff.

https://www.c-span.org/video/?537234-1/justice-elena-kagan-speaks-us-court-appeals-ninth-circuit-conference

Following up our last post, President Biden discussed his proposed SCOTUS reforms in an op-ed in the Washington Post today–basically, term limits, a code of conduct with an enforcement mechanism, and a constitutional amendment abolishing presidential immunity. The administration released a fact sheet on the proposals.

For what it’s worth, term limits and an enforceable code of conduct seem like no-brainers? I liked the proposal to promote all the federal Circuit Judges to Associate Justices, but I guess that was never going anywhere.

From today’s story in the Post:

President Biden is finalizing plans to endorse major changes to the Supreme Court in the coming weeks, including proposals for legislation to establish term limits for the justices and an enforceable ethics code, according to two people briefed on the plans.

He is also weighing whether to call for a constitutional amendment to eliminate broad immunity for presidents and other constitutional officeholders, the people said, speaking on the condition of anonymity to discuss private deliberations.

The Post also reports that President Biden has been speaking with Laurence Tribe about court reform at least since Trump v. United States came down.

Adam Unikowsky has a fascinating Substack article about running SCOTUS briefs through Claude 3 (h/t Tyler Cowen at Marginal Revolution). Here’s a taste:

. . . I decided to do a little more empirical testing of AI’s legal ability. Specifically, I downloaded the briefs in every Supreme Court merits case that has been decided so far this Term, inputted them into Claude 3 Opus (the best version of Claude), and then asked a few follow-up questions. (Although I used Claude for this exercise, one would likely get similar results with GPT-4.)

The results were otherworldly. Claude is fully capable of acting as a Supreme Court Justice right now. When used as a law clerk, Claude is easily as insightful and accurate as human clerks, while towering over humans in efficiency.

Let’s start with the easiest thing I asked Claude to do: adjudicate Supreme Court cases. Claude consistently decides cases correctly. When it gets the case “wrong”—meaning, decides it differently from how the Supreme Court decided it—its disposition is invariably reasonable…

Of the 37 merits cases decided so far this Term, Claude decided 27 in the same way the Supreme Court did. In the other 10 (such as Campos-Chaves), I frequently was more persuaded by Claude’s analysis than the Supreme Court’s. A few of the cases Claude got “wrong” were not Claude’s fault, such as DeVillier v. Texas, in which the Court issued a narrow remand without deciding the question presented.

Way more at the link.

This is min-blowing. A few thoughts.

First, Adam Unikowsky is smarter than I am.

Second, I’ve run similar conversations with ChatGPT about live cases in my state-court appellate practice (most recently using 4o). I’m not going to dump the results here for reasons that should be obvious. But generally speaking, I was less ready to swap out an associate or clerk for the AI. Now, the cases in Adam’s SCOTUS dataset are going to be more thoroughly briefed than your run-of-the-mill state court appeal. They are also going to deal with legal questions at a greater level of abstraction than an appeal to an intermediate appellate court. All that said, with my questions, the AI would sometimes deliver results that could look facially plausible to someone who was unfamiliar with the case, but might not persuade someone who’d been working in the weeds. If you’ve played with Lexis AI, it’s a similar feeling: The output is legitimately amazing, but a real live associate would deliver better work product today. I have zero confidence that this will still be true in six months, at least with the ChatGPT opinions (who knows how long it takes Lexis to evolve). And, of course, the associate would take orders of magnitude longer and cost the client vastly more money.

Third, is it possible that Claude is a better lawyer than ChatGPT?

Fourth, I have not unleashed ChatGPT on an expert opinion, but that sounds legit fascinating. As would using the AI to outline a cross-examination based on the opinion and a bunch of old transcripts.

At the VTLA’s annual meeting earlier this month, Kyle McNew moderated an appellate panel featuring Justice Mann and Judges Malveaux and Ortiz. High-level takeaways:

• Letting Judge Ortiz respond to a moderator opens the door for some quality shithousing. This probably only works with a quick moderator like Kyle, but more bar associations should try it.
• Judge Malveaux explained that in the CAV, a substantive motion will be decided by the same panel that ultimately hears your case. That makes sense, but I was never clear how motions practice works.
• Judge Ortiz said that the amount of time between the end of briefing and oral argument varies by region, but it is typically somewhere between 90 and 150 (or even 180) days.
• Justice Mann dropped a few gems. First, he said that if courts don’t want to get reversed, they shouldn’t do wonky things. So if you get a wonky opinion from the CAV, ask for a writ. Fair enough. But a few minutes later, he recommended that lawyers arguing before SCOVA pick up a copy of Blackstone’s Commentaries on the Law’s of England and nurture a familiarity with English Common Law. Showing up at SCOVA without Blackstone, he said, would be like showing up in trial court without the rules of evidence. This comment alone moved the Overton window for wonkiness in Virginia court. Pray for the CAV.

The Court of Appeals of Virginia recently handed down its opinion in Tatusko v. Commonwealth, 79 Va. App. 721 (2024). It’s a reckless-driving case where the defendant was clocked doing 103 in a 60 mph zone. Tatusko doesn’t strike me as especially interesting on the merits; many of the issues raised were discretionary rulings, and none of them really move me.

But here’s the thing: The case had 18 assignments of error. Eighteen! Is it even possible to get that many important things wrong in a speeding case?*

Judging from Tatusko, no. It is not. More important for our appellate purposes, though, the CAV was super impressed with the volume of assignments of error. Here’s the first paragraph of the opinion:

Appellate courts have sometimes lamented that “the number of claims raised in an appeal is usually in inverse proportion to their merit.” Commonwealth v. Ellis, 534 Pa. 176, 626 A.2d 1137, 1140 (Pa. 1993). As Judge Kethledge observed, “When a party comes to us with nine grounds for reversing the [trial] court, that usually means there are none.” Fifth Third Mortg. Co. v. Chi. Title Ins., 692 F.3d 507, 509 (6th Cir. 2012). Those predictions have been borne out here. Konradt Tatusko assigns 18 errors to his reckless-driving conviction. Finding that none has merit, we affirm the judgment below.

(More cases should cite Kethledge opinions.) The CAV also offered this advice to practitioners:

“While criminal defendants often believe that the best way to pursue their appeals is by raising the greatest number of issues, actually, the opposite is true: selecting the few most important issues succinctly stated presents the greatest likelihood of success.” Ellis, 626 A.2d at 1140. We recognize that criminal defendants may sometimes insist that their lawyers raise as many arguments as possible, including arguments that, even though not frivolous, have virtually no chance of succeeding. But as we have noted, “‘[w]hile “the accused has the ultimate authority” to decide whether to “take an appeal,” the choice of . . . arguments to make within that appeal belongs to appellate counsel.'” Hammer v. Commonwealth, 74 Va. App. 225, 242, 867 S.E.2d 505 (2022) (quoting Garza v. Idaho, 139 S. Ct. 738, 746, 203 L. Ed. 2d 77 (2019)). “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal.” Id. (quoting Jones v. Barnes, 463 U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1987)).

Anyway, recommended throughout. If you only read one reckless-driving case this year, this should be it.

*Assuming, of course, that you are working in good faith. If you are the sort of evil mastermind judge who inhabits law-school thought experiments, then of course you can get more than 18 things wrong as you work to defeat the cause of justice. But if you are just a normal judge trying to do the right thing–you know, the sort of jurists Court of Appeals judges deal with in real life–I’m not sure you can miss the boat this badly.

Jesse Wegman has an editorial in The New York Times about the challenges of teaching constitutional law in the current environment. This should give you a flavor of the proceedings:

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.

Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. “While I was working on my syllabus for this course, I literally burst into tears,” she told me. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”

At least she’s still trying. Larry Kramer, a widely-respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court’s divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller’s majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result.

Professor Kramer was the dean of Stanford law school at the time, but after the Heller ruling, he told me recently, “I couldn’t stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis.” First-year law students, he felt, “should be taught by someone who still believed in what the court did.”

It’s interesting, I guess, but it would have been far more compelling if Wegman had checked in with some of the smart originalists (e.g., William Baude, Lawrence Solum) to get their take. They teach Con Law too! And we’re layering it on a little thick. It’s tough to take those sob stories seriously when literally thousands of qualified people would happily swap jobs with these professors.

UPDATE: The smart originalists have thoughts! William Baude posted an essay at Reason, basically cribbing from a paper he wrote, Teaching Constitutional Law in a Crisis of Legitimacy. You should definitely read the whole paper–it’s barely eight pages long, and characteristically insightful throughout. But if you want the top-line takeaway, here’s what Baude would have told Jesse Wegman:

There is a perception that there is something different, something more challenging, about teaching constitutional law today because the Supreme Court has been doing so many things, so quickly, that are so hard to justify.

This perception is wrong. You have always been teaching law in a time of a crisis of judicial legitimacy. The Supreme Court has never been the same thing as the Constitution. It has never been infallible at interpreting the Constitution. It has long been engaging in awe-inspiring power grabs. Dobbs, Bruen, and Bush v. Gore have nothing on Cooper v. Aaron, Miranda v. Arizona, Baker v. Carr and Reynolds v. Sims, Gideon v. Wainwright, The School Prayer Cases, The School Busing Cases, Roe v. Wade and Planned Parenthood v. Casey, Boumediene v. Bush, and Obergefell v. Hodges. If you were asking yourself just two years ago how we can still teach our students about constitutional law . . . then you have not been teaching them very well until now.

In sum, the Court has always been making questionable calls in high-profile cases, likely for a mix of political reasons and genuine differences of opinion about the nature of the Constitution. What has really changed is not that the Court is newly imperial, or newly lawless, or newly political. What has changed is that many more folks inside the Ivory Tower have noticed, and no longer see their values and ways of thinking represented as often by the Court. That reflects a change in what the Court thinks the law is, to be sure. But it does not reflect a change in whether the Court is doing law.

. . . .

I am not naïve enough to think that the solution to the legitimacy crisis will arrive anytime soon, and indeed I can’t guarantee that anybody who needs to hear these admonitions will listen to them. But at least listen when I say this: There are lots of people, and even lots of law students, outside the bubble. And they can hear you.

Josh Chafetz also has a thoughtful thread on this that’s worth reading.

I am an introvert and a try-hard. This makes me a lot of fun at parties. (Just kidding I never get invited to parties.) It also means that I encounter most of the words I see in print as opposed to real life. So I’m not always 100% sure about how they are supposed to sound. And then sometimes I look words up, only to learn that while I may not know how these words are supposed to sound, they are definitely not supposed to sound like that.

With all that in mind, here is a list of words that I am afraid to say at oral argument because I don’t want to sound like a cretin:

• Amicus. A-MEE-kus, a-MI-kus, and AM-uh-kus can all work, depending on who you ask. So, you are guaranteed to draw at least judge who thinks you’re saying it wrong.
• Bona fides: Only a short-fingered vulgarian would make this rhyme with sides. But if we get fancy, my four years of high-school Latin makes me want to say bona FEE-days. Even if I could push past that, my four years of high-school lunch makes me think bona FIE-deez is just a setup to bona FIE-deez nutz, which is altogether unacceptable.
• Certiorari. At this point in the decline of Western civilization I think we can all agree to say “cert.”
• Daubert. Sounds lowbrow, but it’s pronounced dow-bert.. Except that every CA4 panel in a Daubert case will have a district judge siting by designation who will insist on Frenchifying it. So you can’t win.
• Err: Garner insists that it rhymes “purr.” Merriam-Webster says I can pronounce it “air,” but Garner says that I can’t.
• Gravamen: Gra-VAY-men? No, that can’t be right. And the plural is gravamina? Pass.
• Heytens. I just have a weird mental block on pronouncing Judge Heytens’s last name. “Your Honor” will work at court–and I haven’t argued in from of him yet anyway–but I’m certain that I’m going to blow this one at a CLE or bar event.
• Ideologue. Eye-dee-a-log. But I always want to say id-dee-a-log.
• Primer. The short informative book is a PRIMM-er, while the first coat of paint is a PRIME-er.
• Voir dire. It’s a trap, Tex.