December 19, 2019 Articles

Framing the Issue: Three Key Ingredients

These three key ingredients will not guarantee success, but their absence almost always foreshadows failure.

By Robert S. Peck

A petition for certiorari must do many things well to achieve success. This is because in a typical year, the Supreme Court of the United States receives between 7,000 and 8,000 petitions for certiorari, but the Court grants review in fewer than 1 percent. In their book, Making Your Case, the late Justice Antonin Scalia and Bryan A. Garner explain that a petition for certiorari must demonstrate that the court below adopted an important rule of law erroneously, “not merely the erroneous application of a rule correctly expressed.” That sentiment finds explicit expression in the Court’s Rule 10. Even when you follow that sage advice, though, you still must do more to assure that your petition rises above the chaff that characterizes even well-written petitions that touch all of the necessary bases.

This article focuses on three key ingredients that are must-haves if your petition will have a chance of succeeding: a compelling issue, a theme, and apparent importance to the justices. The existence of all three will not guarantee success, but their absence almost always foreshadows failure. Incidentally, these guidelines provide useful elements for all appellate briefs. 

A Compelling Issue

Those invested in what happened at trial or at the earlier appellate levels can develop a form of tunnel vision about the issue worth presenting. Despite knowing that the Supreme Court looks askance at error correction, the advocates’ outrage at a plainly erroneous decision causes them to package the issue as an important legal issue because, if not corrected, it implicates the broad administration of justice. Left unaddressed, these petitions suggest, the error will spread like wildfire to infect cases across the country with profound consequences for due process, access to justice, or some constitutionally based concept. They portray a run-of-the-mill but erroneous ruling as exemplifying a widespread misunderstanding of a basic principle of law needing the Court’s intervention.

Sometimes such a ploy will work. More often it will not, particularly when others have sought to do exactly the same thing in the past. Whether the issue, at base, appears pedestrian or seems like precisely the sort of issue that the Supreme Court would entertain, advocates should frame the issue in a compelling manner with compelling language.

For example, it may seem that a petition to overturn a prior, much-criticized precedent would be a natural issue for the Court. Yet, a steady stream of petitions has not caused the Court to reexamine Feres v. United States. 340 U.S. 135 (1950). Feres created a nontextual exception to the Federal Tort Claims Act (FTCA) that immunizes the government for injuries to active-duty members of the armed forces resulting from the negligence of others in the armed forces. Lower-court justices forced to dismiss cases on the basis of Feres, Supreme Court justices that often hold opposing views of issues, and the academy have panned the doctrine and urged its elimination because it “deserves the ‘widespread, almost universal criticism’ it has received.” Johnson v. United States, 481 U.S. 681, 700, 695-96 (1987) (Scalia, J., dissenting) (quotation omitted). Citing that criticism, numerous advocates have sought review of the doctrine, with no success.

The Court’s unwillingness to grant certiorari for a plenary review of Feres suggests that the right case and the right issue need to be narrower and focused on one of the absurd outcomes it creates, rather than framed as a frontal attack on the judge-made rule. Such a case came to me when medical personnel at a military hospital in Colorado committed medical malpractice that resulted in oxygen deprivation of a newborn during delivery and permanent brain injury and severe cerebral palsy for the baby. When the parents sued, the district court granted the government’s motion to dismiss, holding that the baby’s injuries were derivative of the mother’s injury and that Feres applied. The Tenth Circuit, expressing the usual criticism of Feres, affirmed, holding that the baby’s injuries were inseparable from that of her active-duty mother.

The case was argued as a vehicle for overturning Feres, but the sex discrimination inherent in its application was overlooked. Reframing the issue as sex discrimination changed everything. The doctrine discriminated in this application because the child’s ability to invoke the FTCA and receive compensation for the malpractice depended on whether her father or mother belonged to the military. If the father had been an air force captain, the military hospital would still have delivered the child. Yet, if the same medical malpractice had occurred, Feres would not shut out the child’s claims. It was only because the mother was active military and being treated that Feres applied. The Tenth Circuit’s holding that the child’s injuries were part and parcel of the military mother’s injury and thus a single claim opened the door to raising the sex-discrimination issue for the first time in the petition to the Supreme Court. Recognizing the compelling nature of the petition, the Solicitor General’s Office settled the matter rather than chance the end of Feres in this case.

For a case that was dismissed for lack of subject matter jurisdiction and affirmed unanimously on appeal, the result demonstrates the power that reframing the issue can have. As reframed, the justices would no longer view the case as a routine challenge to the Feres doctrine but rather as a case involving issues that the Supreme Court had regularly resolved in favor of the party subject to gender discrimination. And the case would have a natural champion on the Court as the petition for certiorari consciously followed a path pioneered by Justice Ruth Bader Ginsburg in the groundbreaking sex-discrimination cases that she brought before the Supreme Court in the 1970s, which included a case arising from a similar unconstitutional distinction between members of the military based on the gender of their spouse. Frontiero v. Richardson, 411 U.S. 677 (1973). It therefore also pays to know your judicial audience and who might see the case the way that you have portrayed it.

The lesson from this experience is twofold. Find a way of framing an issue that separates it from the residue that populates so much of the appellate docket and the judges’ natural preconceptions. And know your audience.

It is equally important to state the issue in compelling language. Even when an issue is inherently absorbing, a flat rendition of it along the lines of “whether the court of appeals erred in holding that . . .” can rob your effort of its force. In Richmond Newspapers, Inc. v. Virginia, the issue was whether a criminal trial could be closed to the press and public and still be consistent with the Sixth Amendment’s guarantee of a “speedy and public trial.” 448 U.S. 555 (1979). In addition to the obvious importance of the issue, the petition’s “Statement of the Case” rendered it more compelling, stating that when the trial court “clear[ed] the courtroom of all members of the public and press, and direct[ed] that the entire trial be conducted in secret, centuries of faithful adherence under Anglo-American law to the principle of open criminal trials came to an abrupt end.”

Reading that credible depiction of what happened and its consequences in the context of the sweep of constitutional history virtually guaranteed that the Court would review the case and probably whetted the justices’ appetite about how it would be argued. After all, when review is discretionary, the thoroughness and erudition that an advocate brings to the effort also counts.

A Theme

Like Winston Churchill’s pudding without a theme, a legal argument without a theme is indigestible. A theme stitches the disparate aspects of the case into a single narrative that enables the advocate to make a persuasive case. It unifies facts, law, and emotional response into a single common idea that leaves a strong and favorable impression. A consistent theme also allows you to demonstrate that your proposed rule of law is fairer, less complex, or more workable. It therefore better fits within the stream of modern legal thinking and developing precedent. While judges may not recall all of the details of the case, a consistent theme memorably puts the case in perspective and permits even a hazy recollection of its facts to see a desirable path to a result because it renders a case familiar and allows the apt analogies that you invoke to have irresistible force.

In his classic text, Winning on Appeal: Better Briefs and Oral Argument,

Judge Ruggero J. Aldisert quotes Judge Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit dispensing this important advice:

Visualize the whole before you begin. What overriding message is the document going to convey? What facts are essential to the argument? How does the argument take off from the facts? How do different arguments blend together? Better still, if it’s a brief, visualize the way the judge’s opinion should read if it goes your way. (Too many briefs read as if the paralegal summed up all conceivably relevant facts, and then the lawyer took over with the legal arguments, and never the twain doth meet.)

A theme is an opportunity to play off of the decision of the lower court, either to praise its insight or demonstrate its wrongheadedness, respectfully. The theme must credibly acknowledge its own limits, though. If oversold, either because it cannot apply to all like cases or because it does not seem consistent with the developing or existing law, it will find few takers. Yet, when it seems to tie all loose ends together, while cordoning off problematic applications for separate treatment, it has an appeal that makes the judicial task easier and therefore more welcome.

A theme is a form of storytelling. For a Court that is divided among justices who variously pay homage to the text alone, divine congressional intent from legislative history, and exercise judgments based on the practicalities involved, a theme that unites all three approaches in providing a single answer can provide a powerful boost to the need to review the case and reach a favorable result.

In Bank of America Corp. v. City of Miami, the defendant banks successfully sold a theme that decades-old case law had sloppily imparted standing under the Fair Housing Act (FHA) to permit an astonishingly broad array of plaintiffs to bring actions. 137 S. Ct. 1296 (2017). Those earlier holdings, it said, were inconsistent with developing law using zone-of-interests analysis and a recent contrary interpretation of Title VII, which sports the same language about any “aggrieved person.”

At the merits stage, Miami developed a contrary theme to support its standing to bring an FHA action over discriminatory practices that diminished its receipt of property taxes. It demonstrated that the FHA was enacted out of a concern with widespread urban unrest and that Congress deemed fair housing as a key component to resolve that problem. After the Supreme Court recognized municipal standing to enforce the FHA in a 1979 case, Congress enacted amendments that reinforced the importance of litigation other than by the federal government to meet the FHA’s promise because the interim years had been characterized by underenforcement. The House report for the FHA’s 1988 amendments then specifically endorsed the “broad holdings” of the 1979 precedent. The Court subsequently ruled in Miami’s favor on standing. The theme that the Court’s task was to enforce the congressional design and that such design supported only one outcome prevailed as a stronger theme than opposing counsel created.

Apparent Importance

Nearly every case is important to clients, and the familiarity of the refrain of taking the case all the way to the Supreme Court undergirds their desire to vindicate their interests after an adverse decision. However, importance lies in the eye of the beholder—and the justices occupy the position of beholder.

The justices’ prior opinions, particularly concurrences and dissents, often identify issues of great national importance and invite petitions on the subject. When the views of one or more justices support your petition, an explanation of why the case presents an ideal vehicle for resolving the dispute helps establish its importance. At this point, less is required to demonstrate the issue’s importance than why the case presents the issue cleanly and without problems that might cause it to be dismissed as improvidently granted or that require resolution of other questions before reaching the presented issue.

Impact on other litigation or upon an industry that regularly litigates the question can also confirm the issue’s importance. If thousands of cases are brought each year where the issue has dispositive or critical impact, one cannot deny its importance. Although circuit conflicts are the most basic grounds for granting certiorari, intractable conflict among the circuits on a frequently raised issue places a heavy thumb on the scale in favor of review.

A strong dissent in the lower court can also highlight the importance of a case. Emphasizing the points of a dissent that places the case in the stream of litigation can impress the Court with its importance, particularly when penned by a respected judge.

Amicus briefs also provide indicia of importance. When groups whose interests naturally fall within the issue presented support certiorari, the issue’s importance becomes apparent. When absent, serious questions arise about whether the issue deserves exercise of the Court’s discretion to take up the issue. Empirical studies demonstrate that amicus briefs filed at the certiorari stage improve the likelihood of a grant of certiorari. By the same token, briefs in opposition almost never have amicus support. It is difficult to write a brief against certiorari contending that the issue is of such little importance that we bothered to write a brief about it.

Conclusion

No formula guarantees a grant of certiorari. However, when an advocate reframes the issue in compelling language that establishes an appealing and consistent theme, consistent with the importance of the issue, the chances to obtain review rise exponentially.

Robert S. Peck is the president of the Center for Constitutional Litigation PC in Washington, D.C.


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