What Does It Mean to Call Your Own Position "Arguable"?

On the always-interesting Balkinization blog, Marty Lederman has an extensive and thoughtful analysis of “The SG’s Remarkable Cert. Petition in Hargan v. Garza, the “Jane Doe” Abortion Case.”  The case, as most readers are probably aware, involved the abortion rights of a 17 year old undocumented (and unaccompanied) minor, who was held in custody in an HHS shelter in Texas.  The ACLU represented “Jane Doe” in her attempt to obtain a lawful abortion in Texas, which requires advance counseling by a physician and cannot not be performed beyond 20 weeks.  After about eight weeks of litigation – described in detail in the Lederman post – the ACLU obtained an en banc ruling from the District of Columbia Circuit Court of Appeals allowing the procedure to go forward, and then an injunctive order from District Judge Tanya Chutkan requiring the shelter to release J.D. for the abortion, which was performed early the following morning. 

The Solicitor General filed the government’s Certiorari Petition nine days after J.D. had already terminated her pregnancy.  Lederman does an excellent job of explaining all of the oddities in the petition, including the perhaps unprecedented suggestion that the Court might take “disciplinary action” against the ACLU lawyers for “what appear to be material misrepresentations and omissions to government counsel designed to thwart this Court’s review.” In brief, the Petition alleges that the ACLU attorneys lulled the government into delaying its cert petition while they surreptitiously facilitated the abortion, thus making it impossible for the government to seek a stay of District Court order. Lederman shows the weakness of the government’s position, which is based on a tendentious reading of a series of emails. Says Lederman, “It’s at best a tempest in a teapot—and perhaps something much more troubling:  a wholly unwarranted accusation of misconduct on the part of opposing counsel.”

Rather than repeat Lederman’s day-by-day (and sometimes hour-by-hour) account of the relevant events, I want to focus on one very strange line in the government’s petition: 

Given the dealings between the parties, respondent’s counsel at least arguably had an obligation to notify the government of this incredibly significant development [the scheduling of the abortion procedure].

In ordinary legal writing, the term “arguable” usually refers to a position that is somewhat better than frivolous, but still without merit.  A judicial opinion, for example, might refer to the losing side’s claims as “arguable,” right before dismissing them.  A brief might allow that the opposing side's interpretation of the law is "arguable" though flatly wrong.  In an intra-office memorandum, a lawyer might advise her partner to pursue all “arguable” claims, including the clear losers, so long as they can be made with a straight face.  In responding to a Rule 11 motion, or to other possible sanctions, a lawyer will contend that his outlandish or unorthodox pleadings nonetheless met the minimum standard of "arguability" under the circumstances. 

Thus, when the government characterizes its own position as “at least arguably” valid, that seems to be at least an admission of weakness, or perhaps an even greater concession.  

Lederman speculates that the cert petition may be "fundamentally a press release, for an audience other than the Justices of the Supreme Court," adding,  "I hope I am mistaken about that—but it's difficult to come up with any other explanation for it."  I would not go that far. The petition is at least arguably meant to be taken seriously.

Disclosure:  I am a long-standing member of the ACLU.

Comments

[Deep State Special Legal Counsel]

Educate me please. The same political officials giving MARCHING ORDERS to these same Justice attorneys stridently defend the Second Amendment and an individual's right to buy an Uzi. The same idea that allows them to make that assertion is the notion of freedom from government intrusion. Why can't they recognize that abortion/woman's health care is the same thing?

[Deep State Special Legal Counsel]

As a follow up, to be crude, the Attorneys drafting this brief could really give two shits about whether a young lady wants an abortion. Its like appellate counsel "forced" to do an appeal brief where there are no issues or a Judge saying "we are here for this?" Like I said, "Marching Orders." Their dragged kicking and screaming so they can get that pay check and not end up like me chasing three bill retail thefts.

[Litowitz]

"Arguable" is similar to what Nietzsche described as the type of justification that is similar to the person who releases the bowling ball and then tries to move it with gesticulations. It's like throwing a gesticulation after the actual reasoning. It's meaningless.

My person pet peeve is "I don't disagree." At my old firm, a partner said this to me, and I responded, "You mean that you agree, correct?" "No," he said, "I just don't disagree." In other words, if I am later proven correct, he can join in the credit, but if I am later proven wrong, he can deny that he was on my side. It's a slimy expression.

[Orin Kerr]

Steven writes: "In ordinary legal writing, the term 'arguable' usually refers to a position that is somewhat better than frivolous, but still without merit."

I have no view of the merits of the brief, as I haven't followed the case or read any of the briefs, but I don't share that impression of the meaning of "arguably." I think "arguably" in ordinarily legal writing means "possibly the case" in a context where whether it is actually the case isn't particularly relevant.

A few examples just from googling around:

1) President Obama called Justice Ginsburg "arguably the toughest justice on the Supreme Court." I don't think he meant that Justice Ginsburg wasn't the toughest, but rather that she might be the toughest.

2) An advertisement for Black's Law dictionary states: "Arguably the most valuable reference tool available to the legal community, Black's Law Dictionary, Eighth Edition (Deluxe) provides more than 43,000 clear, concise, and precise definitions." I don't think they meant to sell the dictionary by saying it's not the most valuable reference tool, but rather by suggesting that it indeed might be.

3) "In San Diego Building Trades Council v. Garmon, 359 U. S. 236, this Court held that the proper administration of the federal labor law requires state courts to relinquish jurisdiction not only over those controversies actually found to be within the jurisdiction of the Labor Board, but also over litigation arising from activities which might arguably be subject to that agency's cognizance. Only such a rule, the Court held, will preserve for the Labor Board its congressionally delegated function of deciding what is and what is not within its domain." Marine Engineers v. Interlake Co., 370 U.S. 173 (1962)

[Matt]

Orin no doubt has a better hand on the legal meaning than I do, but I'll add that, when a philosopher calls a position "arguable", they certainly don't mean to suggest that it is only barely above frivolous - an "arguable" position is one that you can make an argument for. The argument may be better or worse, and people can disagree about that, but it was a surprise to me to see this usage put forward as the main one. I am at least modestly confident that it's not the only reasonable way to understand the term.

[Will]

If the DOJ had said, "We argue that..." followed by or in reference to an argument, they would be asserting merit. To say that something is "at least arguable" is to take no position on it. It is to say, "one could argue, though I am not." A petition is a strange place to make the point that one is not taking a position on one's own case. In that sense, their position as stated is somewhat above frivolous, but lacking (even their own claim of) merit.

[Dave Garrow]

Back to the merits, if I may. I'm as pro-choice as anyone alive, & I was extremely happy that JD was able to obtain the abortion she sought, but I found the allegations narrative in the SG's brief *extremely* troubling, & nothing that Lederman's written (or the ACLU's flippant comments to the NYT) has assuaged my concerns. I for one will not be surprised if Scotus takes some form of action, especially per the Munsingwear option if not actual disciplinary action.