Legal News

Legal Liberals Ponder How Best to Lose

By Ashby Jones

Sonia Sotomayor’s voting record on the Supreme Court may ultimately reveal itself to be left of the man she replaced, David Souter. But at least for the immediate future, that fact isn’t likely to give much solace to lawyers on the political left. Although Justice Anthony Kennedy might “cross the aisle” from time to time, he’s more often than not casting his vote with the four more conservative justices.

So, perhaps a bit like Republicans in Congress, for left-leaning Supreme Court advocates, it’s time to hunker down and play defense.

How does that happen? Rick Hasen, an election-law specialist at Loyola Law School, has a piece in Slate on Tuesday which maps out the key strategic points that the liberals might use to try to minimize their losses.

In any event, Hasen’s advice to lawyers who might be thinking about taking a loser of a case case up to the Supremes:

Stay out of the Supreme Court. Do this, Hasen, suggests, even if you lose in the lower court. Case in point, writes Hasen:

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.

Go Narrow: Hasen encourages the left to try to pick off one of the five conservative justices to issue a narrower opinion. “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, continues, Hasen, the 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. “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.”

Pray: More pointedly, that is, pray the liberal justices on the court can weaken conservative opinions from the inside.

Concludes Hasen:

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.

Full post as published by Law Blog - WSJ.com on September 15, 2009 (boomark / email).