Federal judges and lawyers heard about the cascade of recent developments in legal interpretation during a three-day conference in Colorado Springs, with a heavy focus on the U.S. Supreme Court’s sharp turn toward more conservative outcomes on major cultural issues.
Attendees at the U.S. Court of Appeals for the 10th Circuit’s Bench & Bar Conference heard directly last week from two members of the nation’s highest court, Chief Justice John G. Roberts Jr. and Justice Neil M. Gorsuch, during the first such legal gathering since the onset of the pandemic.
Although both men received friendly and non-combative lines of questioning from current judges on the 10th Circuit, Roberts volunteered his view that the justices’ decisions in controversial cases should have no bearing on the Supreme Court’s legitimacy.
“You don’t want public opinion to be the guide of what the appropriate decision is,” Roberts told an audience at The Broadmoor resort on Friday night. Gorsuch echoed a similar theme the prior day when, responding to the unprecedented leak of a draft opinion that POLITICO published in May, he called “improper efforts to influence judicial decision-making” a threat.
The remarks ignited a firestorm, with some commentators believing Roberts misrepresented the nature of critiques about the Supreme Court — which range from the composition of the court itself to the members’ willingness to overrule longstanding precedents.
The conference for the 10th Circuit, which hears federal appeals at its courthouse in Denver arising from Colorado, Oklahoma, Utah, Kansas, New Mexico and Wyoming, brought together judges and attorneys to discuss the key legal shifts and speak candidly with each other about court operations. Judges Allison H. Eid of Colorado and Joel M. Carson III of New Mexico, both appointees of Donald Trump, organized the biennial gathering.
Here are a few of the major subjects discussed at the conference.
Debate over pro-Christian ‘movement’ at high court
Although speakers at the conference did not openly call into question the legitimacy of the Supreme Court, several panelists noted the rapid reversals on such topics as abortion and religious exercise the conservative-majority court has imposed in its prior term, plus the decline in public confidence.
“With the new court, we have had a number of radical developments — and I say that in the sense of extreme change — with a number of precedents,” observed 10th Circuit Senior Judge Carlos F. Lucero of Colorado.
John Yoo, a law professor at the University of California, Berkeley, indicated the high court, more so than in the past, is looking to history and the Founding period to resolve 21st century disputes. He cautioned that lower court judges will be the ones seeking out the logical boundaries of that method.
“I think all of you are the ones who are gonna have to do it first. You’re going to have to take these new principles the court is developing from an originalist perspective and apply them to new facts,” said Yoo, a former official in the George W. Bush administration who authored the “torture memos” legitimizing the use of torture on suspected terrorists.
Professor Jonathan Turley of The George Washington University Law School indicated he had little concern for Supreme Court justices voting to overrule their own precedents on constitutional questions. He also called it “grossly unfair” to suggest the justices act with a political mindset.
“We disregard precedent at great risk because it is the common sense of the ages,” countered Lucero, who moderated the panel. “Not by one jurist or two jurists but by hundreds of jurists.”
With the prior Supreme Court term resulting in the expansion of state aid to religious schools and the endorsement of prayer by public school employees at school events, University of Texas law Professor Elizabeth Sepper warned the agendas of conservative Christian groups that bring legal challenges before the nation’s highest court are increasingly gaining favor.
“I think we’re seeing preferentialism for religion,” Sepper said. “There clearly is a massive and — when I say well-funded, I mean to the tune of billions of dollars — Christian fundamentalist movement. Their aims are not to get accommodations that we would see minority groups get. It’s not about accommodation. It’s domination.”
She raised the case of 303 Creative v. Elenis, a 10th Circuit decision the Supreme Court has agreed to hear this term, which implicates whether states may bind artists to comply with anti-discrimination laws. The pro-Christian legal group Alliance Defending Freedom is handling the court challenge to Colorado’s LGBTQ protection law.
In response to a question, the panelists agreed Colorado’s state constitutional prohibition on public aid to religious schools would likely be struck down if challenged under the Supreme Court’s new precedent.
Escalating use of injunctions
Judges issue injunctions to direct defendants to act or refrain from acting in ways that implicate a plaintiff’s rights. But beginning with the George W. Bush administration and escalating through subsequent presidencies, there was an increase in nationwide injunctions, in which judges blocked the federal government from implementing certain policies across the whole country.
Prominent examples in recent years included a federal judge in Washington blocking the Trump administration’s ban on immigrants from designated Muslim-majority countries and a judge in Florida enjoining the Biden administration from mandating masks for air travel.
“I don’t think one judge, whether they’re a district judge, circuit judge or a Supreme Court justice, should have the ability to rule on these matters for all time and decide them for everyone,” said Gregg Costa, an Obama appointee to the Texas-centered Fifth Circuit who recently stepped down as a judge there.
Costa and the other panelists agreed the need to have uniformity in the law weighed in favor of nationwide injunctions, as well as dissuading overly-aggressive regulation by governmental agencies that affects a wide swath of potential plaintiffs — who are perhaps unable to bring lawsuits on their own.
But Professor Samuel L. Bray of Notre Dame Law School, a critic of nationwide injunctions, added that while uniform application of federal law “is something we get in our legal system in the long run, we don’t try to get it right away.”
As a result of the increase in nationwide injunctions, a plaintiff need only convince one trial judge to issue such an order, despite multiple other judges or even higher-level circuit courts finding them to be without merit. The upshot is presidential administrations are increasingly likely to have their initiatives blocked in court.
“It really is an issue impacting everyone in terms of political viewpoints, frustrating the objectives of different administrations,” said U.S. District Court Judge Holly L. Teeter of Kansas, who moderated the panel.
“The one tilt it has: It’s anti-federal government,” Costa added.
Costa suggested the use of three-judge panels to decide cases where a nationwide injunction is requested, an arrangement that used to govern challenges to the constitutionality of laws. He said that government officials, especially in Texas, will strategically file cases in areas where only a single favorable judge may hold court, increasing the likelihood of an injunction.
Bray suggested that in the near term, judges could simply restrain themselves from placing a nationwide blockade on policies from their positions on trial or circuit courts.
“If judges won’t issue them, then they won’t happen,” he said.
Media and the Supreme Court
Broadcasting the substance of Supreme Court opinions on a few minutes’ notice — and in competition with social media takes — has put traditional media outlets in a tough spot, journalists who cover the Supreme Court told the conference.
“A lot of us who are in the news business try as best we can to give a balanced and truthful account,” said David Savage of The Los Angeles Times. “Increasingly, we don’t have that kind of luxury anymore to be thoughtful and informed.”
Henry Olsen, an opinion columnist for The Washington Post, cautioned the legitimacy of the Supreme Court will likely continue to be a subject of media debate as long as the justices handle politically-sensitive topics, and are seen as political actors.
The current nature of politics, combined with mischaracterizations or incomplete characterizations of the court’s work, added Jan Crawford of CBS News, has contributed to the public’s increasing dissatisfaction with the Supreme Court.
“It presents a serious problem not only to media but to our institutions. It’s a grave threat to our democracy,” she said.
‘Make my life easier’
While speaking to attorneys about handling complex litigation in the trial courts, U.S. District Court Judges Daniel D. Domenico and Regina M. Rodriguez, both of Colorado, provided insight into how to be on best terms with the judge overseeing a case.
“Nothing frustrates me more and is a way to lose credibility with me than when I see lawyers in their filing or their arguments losing sight of their client’s best interest and make something about winning a point over the other attorney,” Domenico said. “The best way to represent your client is to help me understand the case and make my life easier.”
Rodriguez, who is now in her second year on the bench, echoed that a judge’s job is to “bring order to the chaos,” and a lawyer who has a plan for his or her case and is willing to cooperate will gain credibility with the court.
“I need somebody to be an honest broker to help sort through this,” she said.
The two judges also agreed that, in contrast to the appellate courts, oral arguments are not generally helpful in the trial court. Domenico said he is not comfortable deciding issues based solely on what lawyers tell him on their feet, and prefers to look at the written filings.
Domenico and Rodriguez also acknowledged the district court for Colorado is considering new requirements for litigants appealing the decisions of magistrate judges, who often get a first crack at the legal analysis of a case, to the lifetime-appointed district judges.
“With the number of motions we are getting and the filings we are getting,” Rodriguez explained, “it’s challenging because I think people feel they have to file (an appeal) for whatever reason. But not all of them are grounded.”
Interpreting tribal law
In relatively short time, the Supreme Court has clarified the criminal jurisdiction of Oklahoma over roughly one-third of its land mass in cases involving American Indians. By a 5-4 decision in 2020, the court ruled in McGirt v. Oklahoma that the area in question, including Tulsa, remained “Indian country” because Congress never disestablished tribal boundaries.
As a result, only the federal government or tribes had jurisdiction over certain criminal cases involving an American Indian.
The federal judiciary quickly requested additional judges to handle the increase in caseloads. But this year, in Oklahoma v. Castro-Huerta, the court scaled back its directive by finding Oklahoma actually retained its jurisdiction to prosecute non-tribal defendants who commit crimes against American Indian victims. The majority concluded Oklahoma had a “has a strong sovereign interest” in pursuing criminal justice within its borders.
“I defy you to find any statute anywhere that Indian country is part of the state,” Troy A. Eid, a former U.S. attorney for Colorado, told the 10th Circuit conference. He explained the Supreme Court has now called into question whether tribes retain their inherent sovereignty that states must accommodate, or whether states actually have primacy.
Kevin Washburn, dean of the University of Iowa’s law school and a member of the Chickasaw Nation of Oklahoma, countered that approximately one in three American Indian and Alaska Native women are raped. The Castro-Huerta decision would now ensure, in some instances, that state prosecutors could step in to pursue perpetrators.
“If there’s another government that can help with these serious public safety crises in Indian country,” he observed, “I don’t see it as a disaster.”
Benefits and pitfalls of affirmative consent
Aya Gruber, a professor at the University of Colorado’s law school, said the legal system has struggled to hold those who commit sex crimes accountable while not criminalizing conduct that suggests a consensual encounter. She indicated she is skeptical of the notion of “affirmative consent,” in which sex is consensual when there is mutual agreement, and not simply when either partner fails to object.
“If we narrow it down to only an enthusiastic yes, that’s gonna render a whole lot of sex rape under the criminal law,” she said.
Gruber elaborated that cultural norms have made speaking openly about sex difficult, and the “script” for getting consent depends on verbal and nonverbal cues. She noted the discussion of consent largely centers upon interactions between college students, even though sexual assaults are more common in other scenarios — including sex work.
Under affirmative consent, Gruber acknowledged that the mindset of the victim would no longer be put on trial and prosecutors, in theory, could filter out cases they do not believe to be “real rape.” But she warned prosecutorial discretion for sex crimes, as it does in general, could have widely different consequences based on race or socioeconomic status.
The goal in creating a workable system for sex crimes should be “the most amount of justice with the least pain,” she argued.
