Tuesday, January 19, 2016

Litigation Strategies Again: What Lessons Do We Learn From Winning?

by Neil H. Buchanan

In my Dorf on Law post last Tuesday, I questioned the conventional wisdom among left-leaning legal strategists who frequently express concern about moving "too far, too soon" in trying to achieve progressive social change.  That concern is most frequently offered in resistance to bringing legal challenges on issues that are presumed to be somehow unripe in the minds of the public and/or the judiciary, such that (the logic goes) it is in various ways the wiser course to take a go-slow -- or simply a "maybe later, if we're lucky" -- approach.  As I noted in that post, I will write a post this summer in which I investigate how this logic applies to the question of animal rights.  Here, I want to discuss the relevant issues in a broader sense.

As I acknowledged in last Tuesday's post, and as I will explain in more detail below, there is an undeniable logic to the idea that rash attempts to achieve social change in an unwelcoming environment can be counterproductive.  My ultimate point, however, was not that this logic is wrong, but simply that the go-to example to which cautious liberals usually point actually does not work.  Progress on abortion rights was almost certainly not, contrary to the views of Justice Ginsburg and others, ultimately harmed by Roe v. Wade.  As I noted, the claim that the anti-abortion movement was created and/or energized by Roe is quite difficult to square with history, and a counterfactual history in which religious conservatives somehow fail to organize to oppose pro-choice legislation at the state level is rather implausible.  (Readers should also re-read the Verdict column by Professor Dorf that I discuss in that post.)

People who invoked the Roe example to counsel patience on same-sex marriage thought that the courts (and, just as importantly, the country) could not accept gay marriage so soon.  Winning, they said, would ultimately result in avoidable setbacks.  Such warnings have turned out to be spectacularly wrong.  The Court's predictable 5-4 decision was preceded by nearly unanimous agreement among district and appellate courts, and the public's rapid acceptance of the reality of SSM has been so complete that attempts by people like Mike Huckabee and Ted Cruz to stir up anti-gay backlash have been notably unsuccessful.  Even in the Republican presidential campaign, where appealing to the most conservative base voters is essential, SSM is at best an afterthought.

I thus concluded that, although advocates of the go-slow approach might well be right at any given moment on any given issue, they need a new poster child.  In addition to making a logical argument that the public is not yet ready for rapid change on Issue A at Time X, it would be helpful to say, "And remember when we foolishly tried to move forward on Issue B?  Let's avoid that mistake this time."  Essentially, I asked last Tuesday what that real-world cautionary tale might be, given that Roe does not actually fit the bill and Obergefell seems to have turned out so well.  Logic is great, but there is almost always a quite plausible logical chain that can lead to the opposite strategic conclusion.  Vivid examples matter.

This is a worthwhile discussion, because it is indeed important not to become overconfident simply because risky strategies sometimes pay off.  An economic historian once pointed out to me that the Roman Catholic Church and most Protestant denominations agree that their parishioners should be discouraged from gambling, but their reasons differ.  For Catholics, he said, the worry is, "What if they lose?  The families will starve, and social ruin will follow."  For Protestants, on the other hand, the worry is, "What if they win?  They will learn the wrong lesson and come to believe that hard work is not necessary, and social ruin will follow."  These and related concerns, I think, bear on the strategic questions that I am discussing here.

The Ginsburg critique of Roe is essentially that this is a case where her side won when it would have been better for them to lose -- or, more to the point, not to have tried at all.  She claimed that this was the lesson that SSM proponents failed to understand, and that a win there was likely to lead ultimately to setbacks, compared to the go-slow strategy.

A commenter on last Tuesday's post anticipated an important point here by noting that the ex ante concern about the cases that became Obergefell was not just that the good guys might win and suffer backlash, but also that they might lose.  And what is so bad about losing, in the larger strategic sense?  The idea is apparently that a loss becomes encrusted in a way that makes matters actually worse for future otherwise-meritorious cases, and that it can take a long time to get the Supreme Court to revisit even a terrible decision.  Bowers v. Hardwick seems relevant here, although it is arguable that that case did not actually prevent good things from happening prior to its being overruled nearly three decades later.  I suspect that Bowers did, in fact, come with such a cost, although it is hard to point to anything dramatic that likely would have happened if that case had never reached the Court.

In any event, consider how the go-slow logic would have worked if conservatives had thought in these terms about the two anti-Affordable Care Act cases of the last few years, NFIB v. Sebelius (2012) and King v. Burwell (2015).  On both cases, the go-slow approach would have said that the risks of losing were quite high.  The Commerce Clause-related argument that the government cannot force people to buy things (the so-called Broccoli Argument) was ex ante a joke.  People reasonably imagined that the case might go 8-1 against the conservatives, if all of the justices had remained true to their previous writings.  That case appeared, even to many conservative commentators, to be a fool's errand.

Instead, that issue went 5-4 in favor of the conservatives, with even Kennedy joining in a wholesale conservative rewrite of the Commerce Clause.  Moreover, they even managed to get two of the liberalish justices to join in the part of the opinion that allowed state governments to opt out of the Medicaid expansion.

As with Obergefell, however, an equally important question is whether the conservatives simply had good luck, winning a case that they had no reasonable expectation that they would win.  We all know that some Hail Mary passes are completed, but that does not make it wise to throw caution to the wind on every play.  What is the downside of losing, especially given that the conservatives actually did lose the overall constitutional challenge?  Did this set back the conservative movement, or in any way make it more difficult to advance their other strategies in the future?

If it did, then King v. Burwell never would have seen the light of day.  Only three years after a crushing loss, the ACA was back at the Court, this time based on an even flimsier argument.  The bizarre statutory claim that the ACA was self-negating lost 6-3, allowing the ACA to continue to succeed (even beyond the expectations of its proponents).  And the downside, from the conservative standpoint?  Other than losing that case, it is difficult to see what they lost in any larger sense.  In particular, nothing appears to have become encrusted in a way that makes future victories less likely for conservatives.

Of course, these two examples -- one a loss containing two important wins on sub-issues and the other a humiliating defeat, but neither of which seems to have any strategic downside for the losing activists -- cannot prove that the go-slow approach is never right.  To be clear, I continue to think that it is quite reasonable to fear moving too far, too soon.  The question that I find surprisingly difficult to answer is why I find that logical argument so plausible, given how difficult it is to think of even one dramatic example to which everyone can point.

Or, to put it slightly differently, imagine that the Roe example actually worked in the way that Justice Ginsburg said it works.  At the very least, the onus would then be on the aggressive lawyers in any other context to say, "Yes, bad things happened because of the overeager lawyers in that earlier case.  But this case will be different."  Instead, I think the ambitious we-can-change-the-world-now lawyers are in a position where they can say, "When did a winning a lawsuit make us worse off in the long run, and when did losing a lawsuit do irreversible damage?"

Again, I am not saying that there are no answers to those questions, but given that the voices of caution take their side to be obviously right, one would think that they would already have a long list of examples, and at least one example that everyone acknowledges to be undeniable and game-changing.  Lacking that, two possibilities emerge: (1) There really is not much of a downside to winning or losing a case that was arguably brought too soon, or (2) Impetuous lawyers are going to make big mistakes in the future, because they will think that being on a winning streak is the same thing as being invincible.  If (2) is right, I hope that we can come up with a more convincing argument before it is too late.