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.
2. Try to pick off one of the five conservative justices to issue a narrower opinion. Sometimes, it is impossible to keep a case out of the Supreme Court. For example, one provision of the McCain-Feingold campaign finance law requires a special three-judge court to hear certain constitutional challenges to it, with direct appeal to the Supreme Court. When the Supreme Court gets a case in this way, it has to do something with it, and in one way or another creates precedent that binds all the lower courts. As a result, the court has now heard four cases challenging the constitutionality of McCain-Feingold. (Note to Congress: Next time you pass a liberal law, skip the part about mandatory appeals to the Supreme Court.)
If the left has to litigate a case in the Supreme Court, the name of the game is trying to peel off at least one justice from the bloc of five conservatives—Roberts, Kennedy, Samuel Alito, Antonin Scalia, and Clarence Thomas.
If your target is Chief Justice Roberts, you appeal to the institutional value of judicial minimalism and moderation and to avoiding controversial 5-4 rulings that could damage the reputation of the court. Jeffrey Rosen just made such a pitch in a New York Times op-ed, warning that if the court overturns the corporate spending limits in the Citizens United case, Roberts will look like an activist chief justice, a la Earl Warren. This play for Roberts seemed like it worked in last term's voting rights case. The voting rights community lost that case, but the court did not issue a broad ruling that struck down the underlying civil rights statute, and liberals declared the loss a (relative) victory.
If liberals are appealing to another conservative member of the court, then the key is to show how a narrower ruling would further that particular justice's values, interests, or earlier rulings. Thus, the group Justice at Stake wrote an amicus brief in Citizens United focused on the effect that lifting corporate spending limits would have on judicial elections. Justice Kennedy was a rare fifth vote, in last term's judicial elections case, for requiring judges to recuse themselves when they've benefited from huge campaign spending by a party before them. He has expressed strong concerns that a judge may feel a "debt of gratitude" to those who run independent spending campaigns on his or her behalf. The pitch is that a broad ruling in Citizens United would undo what Justice Kennedy did in the recent case.
3. Pray the liberal justices on the court can weaken conservative opinions from the inside. In the Indiana voter identification case I discussed earlier, the court upheld the state law 6-3. Three of the justices in the majority—Alito, Scalia, and Thomas—signed on to a dreadful opinion that really would have set back voting rights a long way. But their work did not become a majority opinion for the court. Instead, normally liberal Justice John Paul Stevens also voted to uphold the Indiana law, but via a much narrower opinion, joined by Roberts and Kennedy. As a result, there is no majority opinion that clearly binds the lower courts: Instead, the standard going forward is hazy, which is a better result for liberals than a clear conservative result. Though some liberals criticized Justice Stevens for his vote, his opinion actually made things much better from their point of view.
Losing at the Supreme Court is seldom an occasion for celebration. But you can bet that if the Supreme Court decides that Citizens United wins its corporate spending limits challenge on narrow statutory grounds—and not in a broad constitutional reversal of precedent upholding corporate spending limits—there will be a lot of high-fives among supporters of campaign finance reform, from Elena Kagan on down.