IS JUDICIAL RESTRAINT DEAD?
UZUEGBUNAM AND THE COMING FEDERAL JUDICIAL ACTIVISM
This is the second in a series of articles that looks at issues around judicial integrity and a crises of trust in the U.S. justice system.
On March 8, 2021, the Supreme Court reversed a Court of Appeals decision in a holding that could have huge long-term ramifications. The decision does not overturn any laws. It does something much bigger. It upends over 200 years of doctrine and practice by the Courts by declaring that nominal damages can keep a controversy alive. Long term implications are huge.
The Court held that, even when there is no longer a controversy to litigate, and even when there are no compensatory damages to award, the plaintiff can still pursue the lawsuit.
Just as Citizens United had opened the door to big money in elections, and just as Shelby County had re-opened the door to voter suppression, the opinion in Uzuegbunam (pronounced Oo-zah-BUN’-um) could open the door to a new breed of judicial activism, create a shift in the triparty system of checks and balances, and cause serious strain on judicial resources nationwide.
How did this happen? Why did the Court choose this? What happens now?
Educational Supplement
A separate Educational Supplement to “Is Judicial Restraint Dead?” is available. This supplement goes over essential concepts. We will bold face these defined concepts as they appear. The supplement reviews:
I. The Three Primary Limits on Judicial Power
II. The Five Justiciability Doctrines
III. Brandeis’s Principles of Avoidance
IV. Damages
In this article we will focus primarily on the Prohibition Against Advisory Opinions, Standing, and Mootness.
THE CASE — Oo-zah-BUN’-um
Uzuegbunam et al. v. Preczewski et al., 592 U.S. __(2021).
The details of the case are relatively unimportant to the opinion, but the background information is helpful in understanding how we got here.
A public college in Georgia, like many colleges in the country, had provided a controlled environment for students to express themselves. This came in the form of “designated speech areas,” which students could access upon securing a permit. This benefit was accompanied by a policy that prohibited using these free speech zones to say anything that “disturbs the peace and/or comfort of persons(s).” (So much for free speech.) A student at this college acquired the necessary permit and used the free speech area to speak about and distribute materials for their religion. (I am intentionally not disclosing the religion here because, frankly, it shouldn’t matter.) Some students complained and the campus police responded by asking the student to stop their proselytizing, pursuant to the policy against disturbing the peace. The student complied. This had a chilling effect on at least one other student of that denomination (Bradford) who was considering similar activities. A lawsuit was subsequently filed, seeking injunctive relief (making the school stop enforcing the policy) and nominal damages (money of a more-or-less symbolic value). No other damages were sought. The college officials chose to discontinue the challenged policies before the lawsuit could be decided. Normally this would have led to a dismissal of the case on the grounds that the policy change left the students without anything to sue about. The students won without having to go to trial.
What happens next is the issue in this case. While the parties agreed that the policy change rendered the student’s request for injunctive relief moot, the students continued to pursue their claim for nominal damages. The Eleventh Circuit, consistent with past decisions, held that, “while a request for nominal damages can sometimes save a case from mootness, such as where a person pleads but fails to prove an amount of compensatory damages, the students’ pleas for nominal damages alone could not by itself establish standing.”
The QUESTION before the Supreme Court then was: Can an award of nominal damages by itself redress a past injury?
The Eleventh Circuit said “no.” But the Supreme Court reversed the Eleventh Circuit as follows:
HELD: A request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right.
In other words, the former students can proceed with their First Amendment lawsuit against the college and college officials, even though the restrictions that gave rise to the lawsuit have been removed.
THE APPELLATE DECISION
781 Fed. Appx. 824 (2019). U.S. Court of Appeals for the Eleventh Circuit
At the appellate level, the attorneys for Uzuegbunam realized they were in trouble as evidenced by the sloppy additions to their pleadings. In addition to declaratory judgments and injunctions, appellants requested nominal damages; reasonable costs and attorneys’ fees; and “all other further relief to which may be entitled” as well as damages “in an amount to be determined by the evidence and this Court.” (At page 4-5.)
The Appellant clearly realized, too late, that their case was in danger of being declared moot and they tried to tack on these unspecified “monetary damages” in an effort to keep the controversy alive. The Court of Appeals saw through this effort, “rejecting what it characterized as their “after-the-fact contentions” that they in fact sought compensatory damages.” (At page 7.) The court also denied the Appellant’s request to amend their complaint, on the grounds that it is not appropriate to do so in response to a motion to dismiss.
Nevertheless, Uzuegbunam was granted Cert by the Supreme Court.
SCOTUS OPINION (Justice Thomas)
Uzuegbunam et al. v. Preczewski et al. 592 U.S. __(2021).
HELD: A request for nominal damages satisfies the redressability element necessary for Article III standing where a plaintiff’s claim is based on a completed violation of a legal right.
The Opinion, written by Justice Clarence Thomas, summarizes the procedure as follows:
“The District Court dismissed the case, holding that the students’ claim for nominal damages was insufficient by itself to establish standing.
The Eleventh Circuit affirmed. 781 Fed. Appx. 824 (2019). It stated that a request for nominal damages can save a case from mootness in certain circumstances, such as where a person pleases but fails to prove an amount of compensatory damages. But, because the students did not request compensatory damages, their pleas for nominal damages could not by itself establish standing.” Page 3.
We granted certiorari to consider whether a plaintiff who sues over a completed injury and establishes the first wo elements of standing (injury and traceability) can establish the third by requesting only nominal damages. 591 U.S. ___ (2020). We now reverse.” (Uzuegbunam, Opinion at 3.)
This case is about STANDING and DAMAGES and under what conditions a case becomes MOOT.
In order to have standing, the plaintiff must establish a) an injury, b) traceable to the challenged conduct, and c) a remedy that is likely to redress the injury. All parties agree that the first two elements were met. The only questions is whether nominal damages can redress the constitutional violation.
DAMAGES
Justice Thomas traces the history of nominal damages back to English common law, citing a dissent by Lord Holt which argued that “every injury imports a damage,” even when a damage is simply the violation of a legal right; and damages are always available even if the plaintiff “does not lose a penny by reason of the violation.” (Uzuegbunam, Opinion at 5–6.) (Dissent responds specifically to the Holt dissent.)
Thomas admitted this rule was “not universally followed,” but that, “[b]y permitting plaintiffs to pursue nominal damages whenever they suffer a personal legal injury, the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.” (Uzuegbunam, Opinion at 7–8.)
Thomas rejects the idea that compensatory damages must be a condition for receiving nominal damages. “Nominal damages are not a consolation prize for the plaintiff who pleads, but fails to prove, compensatory damages. They are instead the damages awarded by default until the plaintiff establishes entitlement to some other form of damages, such as compensatory damages or statutory damages.” (Uzuegbunam, Opinion at 9.) (Dissent responds specifically to this.)
The compensatory requirement, he claims, “rests on the flawed premise that nominal damages are purely symbolic,” asserting that this premise must be flawed because it contradicts what was “discussed above.” (Uzuegbunam, Opinion at 9.) (Dissent responds specifically to this.)
STANDING
While federal courts do not have jurisdiction to enter a judgment unless it provides a remedy to redress that plaintiff’s injury, Thomas claims that “early courts routinely awarded nominal damages alone,” so long as the plaintiff is “able to maintain a personal interest in the dispute at every stage of litigation.” (Uzuegbunam, Opinion at 10.)
For the purpose of Article III standing, since “every violation [of a right] imports damage,” this means even nominal damage can redress Uzuegbunam’s injury. Quantifying that harm in economic terms is not necessary. (Uzuegbunam, Opinion at 12.)
Thomas counters Dissent’s concern that “the Judiciary will be required to weigh in on legal questions whenever a plaintiff asks for a dollar,” by pointing out that Congress abolished the statutory amount-in-controversy requirement for federal question jurisdiction in 1980. He uses bus fair as an example. (Uzuegbunam, Opinion at 11.) (Dissent responds specifically to this.)
DISSENT (Chief Justice Roberts)
Chief Justice Roberts’ frustration is evident throughout the dissent as, paragraph by paragraph, he blows holes in the Court’s (the holding’s) opinion. So thorough is his rebuttal, and so evidently flawed is the Court’s argument, that it’s difficult not to simply quote the complete dissent.
THE COURT’S ROLE
Roberts provides insight regarding the role of the Judiciary and how this holding will upend centuries of precedent.
- The judiciary, according to Alexander Hamilton in the Federalist, should be the least dangerous and the least capable of annoyance or injury of the three branches of government. While the executive dispenses honors and holds the sword, and while the legislature commands the purse and makes the rules, the judiciary merely judges. (Uzuegbunam, Dissent at 2.)
- This role “is modest only if confined to its proper sphere.” The separation of powers could not exist if, as John Marshall warned, the judicial power “extended to every question under the Constitution or to every question under the laws and treaties of the United States.” (Uzuegbunam, Dissent at 2.)
- Cases and controversies means “cases of a Judiciary nature.” (Uzuegbunam, Dissent at 2.)
- “By insisting that judges be able to provide meaningful redress to litigants, Article III ensures that federal courts exercise their authority only as a necessity in the determination of real, earnest and vital controversy between individuals.” (Uzuegbunam, Dissent at 3.)
- The structure and function of an 18th-centery English court which operated under the crown is significantly different from that organized under a tripartite allocation of power. This country, by design of the Framers, has an independent Judiciary whereas in England the courts operated as “appendages of crown power.” This separation means that we have to protect against trespass on the other branches. (Uzuegbunam, Dissent at 4.)
CASE WAS FLAWED FROM THE BEGINNING
Roberts opened his dissent with a pointed recital of why this case should never have been heard. “There are just a few problems: Uzuegbunam and Bradford are no longer students at the college. The challenged restrictions no longer exist. And the petitioners have not alleged actual damages. The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford “any effectual relief whatever.” (Uzuegbunam, Dissent at 1.)
“There are just a few problems: Uzuegbunam and Bradford are no longer students at the college. The challenged restrictions no longer exist. And the petitioners have not alleged actual damages. The case is therefore moot because a federal court cannot grant Uzuegbunam and Bradford “any effectual relief whatever.”
DAMAGES & MOOTNESS
Roberts slams Thomas’s claim that mootness can be defeated so easily.
- “In the Court’s view, nominal damages can save a case from mootness because any amount of money — no matter how trivial — “can redress a past injury.” But an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to. If nominal damages can preserve a live controversy, then federal courts will be required to give advisory opinion whenever a plaintiff tacks on a request for a dollar.” (Uzuegbunam, Dissent at 1.)
- Moreover, a case is moot if there is no effectual relief available, and to decide a moot case would be to give an advisory opinion, in violation of “the oldest and most consistent thread in the federal law of justiciability.” Roberts later interprets the issuing of advisory opinions as “turning judges into advice columnists.” (Uzuegbunam, Dissent at 3.)
- An award of nominal damages, such as here, does not change the stations or condition of the plaintiffs at all. “The court in such a case is acting not as an Article III court, but as a moot court, deciding cases in the rarified atmosphere of a debating society.” (Uzuegbunam, Dissent at 3.)
- Plaintiffs would be able to avoid mootness by simply adding a claim for nominal damage. The idea that “every violation of a right imports damage,” departs from precedent “definitively and recently held that a plaintiff must allege a concrete injury even where his rights have been violated.” (Uzuegbunam, Dissent at 10.)
- Roberts rejects the Court’s argument that nominal damages provide Article III relief because money changes hands, noting that “[i]f this were the case, attorney’s fees and costs would confer standing at the beginning of a lawsuit and prevent mootness throughout — a proposition we have squarely rejected.” (Uzuegbunam, Dissent at 8–9.)
DAMAGE AS REDRESS
Roberts then rejects Thomas’s claim that nominal damages can redress an injury.
- Redress, by definition, must alleviate the plaintiff’s alleged injury, either by compensation for past harm or prevention of ongoing or future harm. Nominal damages, on the other hand, are not intended to approximate any kind of value. Nominal damages do not perform any remedial function and so they cannot preserve a live controversy where the case is otherwise moot. (See Uzuegbunam, Dissent at 9.)
- Contrary to Thomas’s insistence that nominal damages are not a “consolation prize,” Roberts claims nominal damages were often “awarded as a hook to allow prevailing plaintiffs to at least recover attorney’s fees and costs.” The petitioners in this case sought fees and costs, but no actual damages. (Uzuegbunam, Dissent at 5–6.)
- The Opinion provides “live damages claims” as evidence that the Court should allow nominal damages for “retrospective injuries,” but does not cite any retrospective examples to support this theory. (Uzuegbunam, Dissent at 6–7.)
“The Court insists that not every “request for nominal damages guarantees entry to court.” Yet its holding admits of no limiting principle.”
COMPENSATORY VS NOMINAL DAMAGES
Nominal damages are not compensatory. In fact, nominal damages are not even damages.
- It would be a mistake to equate a small amount of actual damages with the token award of nominal damages, which is what we have in the present case. “Nominal damages are damages in name only.” They are a legal fiction. Yes, the plaintiff could ask for a dollar for compensable harm, but that is not the same as a nominal prayer, and that is not what the plaintiff here asked for anyway. (Uzuegbunam, Dissent at 10.)
- “The Court insists that not every “request for nominal damages guarantees entry to court. Yet its holding admits of no limiting principle.”
- As regards the English reversal of a case that included Lord Holt’s dissent that every injury imports a damage even if there is no actual loss, Roberts claims that the reversal had little if anything to do with the dissent. (Uzuegbunam, Dissent at 7–8.)
“At bottom, the Court relies on a handful of indeterminate sources to justify a radical expansion of judicial power.” (Uzuegbunam, Dissent at page 8.)
“At bottom, the Court relies on a handful of indeterminate sources to justify a radical expansion of judicial power.”
ADVISORY OPINIONS
I will quote, in full, the last two eloquent paragraphs of Roberts’ Dissent, wherein he calls up the original intent of the founders.
“Five years after Hamilton wrote Federalist №78, Secretary of State Thomas Jefferson sent a letter on behalf of President George Washington to Chief Justice John Jay and the Associate Justices of the Supreme Court, asking for advice about the Nation’s rights and obligations regarding the ongoing war in Europe. Washington’s request must have struck him as reasonable enough, since English sovereigns regularly sought advice from their courts. Yet the Justices declined the entreaty, citing “the lines of separation drawn by the Constitution between the three departments of the government.” (3 Correspondence and Public Papers of John Jay 488 (H. Johnston ed. 1891.) For over two centuries, the Correspondence of the Justices has stood as a reminder that federal courts cannot give answers simply because someone asks.
The Judiciary is authorized “to say what the law is” only because “[t]hose who apply [a] rule to particular cases, must of necessity expound and interpret the rule.” Marbury v. Madison, 1 Cranch 137, 177 (1803) (emphasis added). Today’s decision abandons that principle. When a plaintiff brings a nominal damages claim in the absence of past damages or future harm, it is not “necessary to give an opinion upon a question of law.” San Pablo, 149 U. S., at 314. It is instead a “gratuitous” exercise of the judicial power, Simon v. Eastern Ky. Welfare Rights Organization, 426 U. S. 26, 38 (1976), and expanding that power encroaches on the political branches and the States. Perhaps defendants will wise up and moot such claims by paying a dollar, but it is difficult to see that outcome as a victory for Article III. Rather than encourage litigants to fight over farthings, I would affirm the judgment of the Court of Appeals.
THE AMICUS CURIAE
On the surface, there appeared to be overwhelming support for Court’s opinion to allow plaintiffs to continue pursuing a law suit even after the case is effectively moot.
First, the Supreme Court’s 8–1 decision, overturning the appellate court, was a striking show of near unanimity for a Court that has been increasingly split in recent years.
Second, of the 28 amicus curiae briefs, 26 were submitted in favor of the court’s eventual opinion. Religious organizations as well as defenders of civil liberties were all motivated by this new possibility of being heard and getting the Court to address and perhaps advance their respective causes on the merits.
As noted earlier, Uzuegbunam tried, at the last minute, to tack on compensatory damages in an effort to keep the controversy alive. It wasn’t enough to have the college reverse their policy. They wanted to continue the lawsuit and get a larger decision on the merits. That is, essentially, what all these amicus curiae briefs were asking for — the ability to continue suing even after the controversy was resolved.
As for the two amicus curiae briefs that voted to sustain the lower court holding, each of them consisted of groups of government entities, representing both red and blue states, as well as national councils representing mayors and lawyers and finance officers and school boards….
But Appearances Can Be Deceiving.
As for the two amicus curiae briefs that voted to deny Uzuegbunam, each of them consisted of groups of government entities. One was submitted by the District of Columbia, joined by five states, representing both red and blue political leaning. The other was submitted by the National Conference of State Legislators, the Council of State Governments, the National Association of Counties, the National League of Cities, the United States Conference of Mayors, the International City/County Management Association, the International Municipal Lawyers Association, the Government Finance Officers Association, and the National School Boards Association. (Note, the other government agency to submit a brief, the Department of Justice under then President Trump, requested a reversal along with the religious organizations.)
Aside from the above legal arguments around mootness, redressability, and advisory opinions, the National Conference of State Legislatures, et al. (hereinafter referred to as “local governments”), noted as well the following legal and practical concerns.
- Under petitioners’ proposed rule, constitutional litigation will never be moot so long as the plaintiff inserts a boilerplate request for nominal damages. The costs involved in continuing litigation means that local governments stand to lose much more than just a single dollar in nominal damages, sapping “diminishing public resources on litigation long after the restrictions have been lifted or changed.”
- Local governments should not be forced to accept judgments against them in order to avoid protracted and costly litigation over a single dollar. A judgment of a constitutional violation can negatively impact bond ratings, raise insurance costs, impact the ability to receive grants or qualify for other funding programs, erode citizens’ trust in their local government or governing officials.
- Constitutional jurisprudence is extraordinarily complex, and the sheer volume of issues that local governments encounter means that previous caselaw doesn’t always match the issue presented. When government’s respond accordingly, and there is no compensable injury, a federal court advisory opinion is unwarranted.
- “In a dynamic and fact-intensive matter subject to reasonable disagreement . . . when those officials undertake to act in areas fraught with medical and scientific uncertainties, their latitude must be especially broad. Where those broad limits are not exceeded, they should not be subject to second-guessing by an unelected federal judiciary . . .” Quoting Chief Justice Roberts.
- “The public interest is best served by policies that allow government officials to act in real time and to adapt to changing circumstances and the unanticipated consequences of their official acts.” Fear of second-guessing in the form of endless litigation will have a chilling effect on government quick action and decisiveness.
- “This Court’s immunity precedent and the presumption that government officials act in good faith . . . support a finding of mootness in cases like this.”
The brief submitted by the D.C. Circuit, et al., listed similar concerns.
Governments, good governments, are ultimately concerned with the public well-being. The efficient function of these government entities is essential to a well-run democracy. This decision undercuts that.
SO THEN, WHY DID THIS HAPPEN?
The opinion in Uzuegbunam (pronounced Oo-zah-BUN’-um — keep repeating it to yourself) has an obvious attraction for potential plaintiffs who now have another avenue by which to challenge a (cancelled) law. It is less clear why the Justices would go along. For one thing, the justices are backed by over 200 years of judicial interpretation of Article III, with case law, and federal judicial limits, and justiciability doctrines, and principles of avoidance to guide them. For another thing, they are government officials with a supervisory role over the federal courts, and would surely know the burden that such a decision would have on the court system. So, why did they go along with this?
One possibility is that the Justices wanted to increase their ability to provide more interpretive guidance, on the merits, beyond simply determining whether a plaintiff is entitled to damages. Just as plaintiff’s have more opportunities to challenge a controversy, the Court has more opportunities to address the controversy. This might be logical if the Court demonstrated a practice of providing thorough and reasoned guidance to the lower courts as part of their holdings, but that has not been the Supreme Court’s practice over the past few years.
The annual number of merits cases handed down by the Court has dropped to the lowest level since the Civil War. More importantly, the number of shadow dockets — opinions that are unsigned and unreasoned — has increased dramatically, leaving the lower courts confused and frustrated. (See SCOTUS Watch, The Shadow Docket Is Not Hyperbole. March 13, 2021. On Medium.) The Supreme Court isn’t even providing guidance now, what assurances do we have that they will do so if the workload increases?
The other possibility, which I would hope is not true, is that the Justices each have their own respective social agendas that they want the opportunity to explore. This is the seed of judicial activism — manipulation of the cases and controversies to meet your own ends. But, of course, with judicial activism, it’s all fun and games until it’s your philosophy that’s put on the chopping block. That’s true for both sides of the political spectrum, but it would be especially puzzling for liberal justices given the circumstances that they are a) outnumbered in their own Court, and b) outnumbered throughout the federal court system (given the inability of the Obama administration to get candidates through the Republican Senate and the subsequent flurry with which the Trump administration was able to fill those vacancies). Unless, of course, the liberal justices know something we don’t. (E.g. the possibility of growing the Supreme Court to, perhaps, 12 justices, or that the new justices are not as conservative as assumed.)
I am in Roberts’ camp and view this opinion as an unmitigated disaster. Some day the truth will come out and the story will be told about how this decision came about. Meanwhile, time will tell just how big a mess this will be for all of us.
MAHALO MUCHO!!!
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