At the recent Supreme Court oral argument in the Citizens United case, about the constitutionality of limits on corporate spending in elections, new Solicitor General Elena Kagan gave a refreshingly honest answer to a question by Chief Justice John Roberts: "If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes."
Across liberal public interest law firms, in the Department of Justice, and at civil rights organizations, that answer surely resonated. The fact is that since Justice Sandra Day O'Connor's departure, as the court has moved sharply to the right, the question for liberals with cases before the Supreme Court often is not whether the left will lose but how it will lose. It turns out that some ways of losing are worse than others. In short: Broad, constitutional holdings that shut down entire lines of cases in all federal and state courts are much worse than narrower rulings that leave open future litigation and put off larger questions for another day. So among liberal advocates, countless hours are spent strategizing over how to lose well at the court.
Here are three strategies of the moment for avoiding a bad loss, taken from my experience with election law cases.
1. Stay out of the Supreme Court, even if you lose in the lower court. Sometimes lower courts reach decisions that cry out for correction. In 2007, for example, Justice Richard Posner wrote an abysmal opinion for a 7th Circuit panel upholding Indiana's strict voter identification law against a constitutional challenge. Judge Posner's opinion belittled the value of the right to vote, and the dissent called the Indiana law "a not-too-thinly-veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic." The plaintiffs, the ACLU, and others appealed the case to the Supreme Court. Seeing Posner's language, and hoping that Justice Anthony Kennedy would join the more liberal justices on the Supreme Court in outrage over the partisanship surrounding these laws, I urged the court to take the case. What a mistake! The court affirmed the 7th Circuit, making the bad law apply to the entire country, and not just a part of it.
A similar dynamic played out with a Vermont campaign finance case. Supporters of the state's strict campaign finance law won in the 2nd Circuit and got the case sent back to the trial court for further proceedings. Challengers to the campaign finance law then petitioned for the Supreme Court to hear the case. Incredibly, the law's supporters joined the call for the case to be heard by the Supreme Court, hoping the court would make it easier for other states to pass tough campaign finance laws. The court obliged the calls for the case to be heard—and then issued a decision siding with the law's challengers, striking down Vermont's contribution and spending limits.
The takeaway lesson is that it is better to lose in a lower court, even though it creates a bad precedent, than to lose in the Supreme Court, which creates a bad—and nationally binding—precedent.