Monday, March 08, 2021

Old-School Intentions-and-Expectations Originalism in the Nominal Damages Case

 by Michael C. Dorf

Earlier today, in Uzuegbunam v. Preczewski, the Supreme Court ruled 8-1 to permit legal standing and against the argument that the plaintiffs' claim was moot. The plaintiffs were students at a state college that allegedly violated their First Amendment rights by pretty severely restricting where they could hand out religious literature or even discuss their religious views. But the college repealed the speech-restrictive policy and the plaintiffs had not sought compensatory or punitive damages. They had, however, sought "nominal damages," meaning some token amount of money--typically a single dollar--in recognition that their rights were violated. The question before SCOTUS was whether that request satisfied the constitutional requirement for standing. Under the Court's precedents, to establish standing, a plaintiff must allege (1) injury that is (2) traceable to the defendant's conduct, and (3) redressable by a favorable judgment. As Justice Thomas, who wrote for the majority, explained, there was no question that the plaintiffs satisfied (1) and (2). The issue was whether nominal damages redress an injury. The majority said yes. Chief Justice Roberts, in a lone dissent, thought the answer should be no.

The case leaves open an important question. In his dissent, Roberts says that to mitigate a potential floodgates problem, in future cases a defendant sued only for nominal damages can make the case go away by offering to settle for the nominal amount. He points to Federal Rule of Civil Procedure 68, which allows a defendant to offer a settlement amount and dare the plaintiff not to take it, lest the plaintiff be on the hook for costs that accrue after the settlement offer. Justice Kavanaugh, who joins the Thomas majority opinion, says in a brief concurrence that he nonetheless agrees with the Chief that a defendant sued only for nominal damages can accept the entry of judgment against it and moot the case.

I agree with CJ Roberts and Justice Kavanaugh that the majority opinion is open to the reading they offer, but it is at least a little odd that Justice Thomas doesn't even mention the possibility. Moreover, in stating that nominal damages cases were a kind of early version of the more modern declaratory judgment action, Justice Thomas arguably implies that perhaps a voluntary entry of judgment against the defendant does not redress a plaintiff's wrong as well as actual proof followed by nominal damages--and could thus be rejected. Accordingly, the practical significance of Uzuegbunam remains to be seen.

I won't venture a view as to who has the better of the argument about redress. Instead, I want to focus on the methodology that both the majority and dissent employ: old-school intentions and expectations originalism.

Regular readers of this blog know that I have long been interested in the evolution of originalism from a view that accords dispositive weight to the intentions and expectations of the framers and ratifiers of constitutional provisions into one that accords such weight to the original public meaning of the Constitution's words--insofar as the object of inquiry can be discovered under either approach. Public-meaning originalism is widely regarded as an improvement over its intentions-and-expectations predecessor. Nonetheless, many critics of public-meaning originalism--including me--argue that it is so under-determinate as to be little more than jurisprudential garb for (what usually turn out to be) politically conservative normative views.

I have also argued that although scholars who describe themselves as originalists typically profess public-meaning originalism, jurists continue to practice intentions-and-expectations originalism. Uzuegbunam provides further evidence for that view.

The Court's cases purport to derive the prohibition on advisory opinions and the related doctrines of standing, ripeness, and mootness from the language of Article III extending the judicial power of the United States to "cases" and "controversies." A public-meaning originalist opinion in Uzuegbunam would therefore consult late 18th century dictionaries, corpuses, and perhaps other sources to determine whether a well-informed English speaker in the early Republic would have understood litigation in which the plaintiff sought only nominal damages to be a "case" or "controversy." But just as the expectations of Americans circa 1868 that schools would remain racially segregated is not dispositive of the scope of "equal protection" in the Fourteenth Amendment, so too, for a public-meaning originalist, the concrete expectations of eighteenth-century Americans regarding nominal-damages actions would not be critical to the question in Uzuegbunam, which is this: Do nominal-damages actions fall within the original public meaning of "cases" and "controversies."

Is that how Justice Thomas proceeds in Uzuegbunam? Nope. Nor does Justice Thomas say that the meaning of "cases" and "controversies" is indeterminate with respect to nominal-damages-only cases and that therefore the Court must turn to what originalists sometimes call "construction," a process that comes after interpretation. Justice Thomas simply makes no effort whatsoever even to ask, much less to answer, the threshold semantic question of what the words "cases" and "controversies" meant in 1789.

That is not to say that the Uzuegbunam proceeds in living Constitutionalist mode. On the contrary, the opinion is highly originalist--but it engages in old-school intentions-and-expectations originalism. Justice Thomas extensively canvasses English, colonial, and early post-ratification cases, all with the evident purpose of showing that the framers and ratifiers of the Constitution intended and expected the courts to hear cases in which the plaintiff sought only nominal damages.

Indeed, the opinion proudly announces that it is doing just that. Quoting earlier cases that likewise looked to early practice to determine the scope of Article III, Justice Thomas says: "Article III's restriction of the judicial power to 'Cases' and 'Controversies' is properly understood to mean cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process" (citations and internal quotation marks omitted). Despite the invocation of the constitutional text, that understanding is not about the original meaning of the words. It is rather and quite evidently about what people at the time intended and expected the courts to do. They had those intentions and expectations independently of the constitutional text. They would have had those intentions and expectations if instead of "cases" and "controversies," Article III authorized federal court adjudication in "conflicts," "litigation," "pleas," or any other similar phrases. The text and its meaning are simply irrelevant in this process.

To be sure, as I indicated in the previous paragraph, Justice Thomas cites prior case law for his methodology. Perhaps he is saying that although he would prefer to apply original public meaning, he's bound by stare decisis to apply intentions-and-expectations originalism in this kind of case? Fat chance.

For one thing, Justice Thomas doesn't believe in a very strong doctrine of stare decisis. For another, even originalists who accept stare decisis typically do so only for precedential results; they don't typically say that they are bound to use a nonoriginalist (or the wrong kind of originalist) methodology simply because earlier cases in the same general area did so; and most importantly, Justice Thomas gives no indication that he is even aware that he is using the wrong kind of originalism. He clearly thinks that what he is doing by tracking down the treatment of English, colonial, and early post-ratification nominal-damages-only cases is originalism.

Chief Justice Roberts does more or less the same thing in dissent: He practices intentions-and-expectations originalism while randomly sprinkling some public-meaning originalism fairy dust over his description of his enterprise, perhaps in the subconscious hope that no one will notice the legerdemain. He writes: "We should of course consult founding-era decisions when discerning the boundaries of our jurisdiction, for the Framers sought to limit the judicial power to 'Cases' and 'Controversies,' as those terms were understood at the time."

From the perspective of public-meaning originalist scholars, that's a non sequitur. Founding-era decisions can tell us what the framers and ratifiers intended and expected; they do not necessarily shed any direct light on the meaning of the words "cases" and "controversies."

Of course, there is a connection between original public meaning and original intentions and expectations, often a strong one. In many contexts, what the framers and ratifiers intended and expected reflects the words they used. For that reason, some of the evidence that bears on one kind of originalism can also bear on the other. But the enterprises are not identical, a point that is crucial to originalists' argument that they can have their originalism without sacrificing canonical cases (like Brown v. Board of Education and the modern sex discrimination decisions) that adopt interpretations at odds with the framers' and ratifiers' intentions and expectations.

In one of my prior articles on modern originalism, I described the slippage between the scholars' version and the version practiced by the justices and politicians as a bait and switch. I wrote that the scholars

make originalism respectable by answering objections leveled at 'expectations originalism', but judges, elected officials, and the public misuse the credibility that these scholars lend to originalism more broadly by relying on evidence about the framers' and ratifiers' expected applications in considering concrete cases.

I had in mind there--and said both there and elsewhere--that the move was especially pernicious because it camouflages results reached on ideological grounds. We learn from Uzuegbunam that the bait-and-switch has become so routine for the Justices that they deploy it even in non-ideologically-divisive cases and apparently unwittingly.