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How Liberals Can Win by Losing at the Roberts CourtThree strategies for turning a defeat into a (relative) victory.

By Richard L. HasenPosted Monday, Sept. 14, 2009, at 3:31 PM ET

John RobertsAt 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."

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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 7^th 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 7^th 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 2^ndCircuit 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.

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Richard L. Hasen, the William H. Hannon distinguished professor at Loyola Law School, writes the Election Law Blog.

Photograph of John Roberts by Paul J. Richards/AFP/Getty Images.

COMMENTS

General Greene was sent by Washington to take over the reins of the forces in the South during the Revolutionary War. Following in his commander's footsteps, he knew the tightrope involved ... he was outmatched but could not simply do nothing. He had to pick his battles and not leave his forces open to total defeat. Small victories were possible ... live to fight for another day.

You know the drill. The article suggests a few ways to "pick off one of the five conservative." The best way to do this is find common ground. For instance, Justice Scalia supports a clear line standard for confrontation cases -- thus, even if we are dealing with child abuse cases or technical matters like those who do drug tests, he demands that the person be there and directly confront the defendant. In various cases, certain liberal justices supported a weaker test. In fact, in the latter case, there is reason to think former prosecutor Justice Sotomayor would have voted differently than her predecessor. [On precedent grounds, she might vote differently now.]

Thomas was a fifth vote once in an excessive fines case, reflecting his respect for property rights. Kennedy is generally a strong believer in free speech as shown by his early vote (contra Stevens) as to flag burning. It's a bit too early to tell Alito's leanings, but he has shown some support of some middle ground on speech [e.g., in the "bongs 4 Jesus" matter] and free exercise of religion cases. Various justices might allow their state rights views trump their conservative views (Thomas split with Scalia and dissented in the medicinal marijuana case; contra, Kennedy appears to have a special distaste for drug cases).

Twenty-something Supreme Court cases might split 5-4, a majority of cases relatively easy, others easy enough that six or more find reason to join in. Of these, at least a handful provide somewhat creative splits because the justices are not quite as knee-jerk as some might think. This is of limited value, particularly when one or more of the "liberals" turn out to support a conservative path, but it underlines that there often is some means to appeal to both sides. After all, what is more conservative than religion ... and is it not used by Obama as well as anyone?

-- Joe_JP
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Another way for liberals to win by losing is to begin by having the Supreme Court strengthen the 2nd Amendment. This is consistent with the late-20th century strengthening of the 1st Amendment and will make it harder for the Supreme Court to retrench on the 1st.

-- fsilber
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