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 But the college repealed the speech-restrictive policy and the plaintiffs had not sought compensatory or punitive damages.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.


Asher Steinberg said...

You'll have to count me as skeptical that a more direct path to getting an answer to whether the original meaning of case and controversy covered this sort of action would be to look at a definition of case and controversy in Noah Webster's dictionary, or to see whether anyone ever called this sort of action a "case" in a corpus (what if we find that on the rare occasions when people talked about nominal-damages actions in the Pennsylvania Gazette or something, they called them "choses in action" -- where might that get us?), rather than just seeing whether founding-era courts entertained this kind of action. The question is far too specific to get much help from a dictionary. I don't think it's such an awful leap to think that when people said case or controversy in 1787 they meant the sorts of cases courts were hearing then. At least, without looking at what sorts of cases courts were hearing then, I don't think an originalist understanding of case and controversy is likely to get you anywhere that decides anything. Of course, I take the point that perhaps that's an indictment of the utility of orignalism here, not an argument that they're doing originalism correctly.

One other thing: you seem to read Roberts's opinion as an original expected applications opinion, but as a non-originalist I was happy to see that his dissent wasn't originalist. It seemed to me, actually, that his argument is mainly an interpretation of modern standing doctrine and turned in large part on disregarding the English evidence as uninstructive.

Tom Casagrande said...

I can't help but wonder: (a) whether the Court would even have taken this case if the 1983 claim was a "liberal" civil rights claim (e.g., police misconduct); and (b) whether the result/Justice alignment would have been the same if it did. Maybe I'm too cynical.

Joe said...

I admit to finding originalism tedious and in practice there is a Calvinball approach. The main post here seems to suggest this, if in polite way.

The post also touches upon the substance of the actual issue. I'm not sure really how much is there. For instance, you have the possibility paying a dollar will settle things being left open. I thought the attorney fees issue was important, but the opinion put that aside. And, Roberts left open the idea the litigants here could have found "actual" damages of a tiny amount in some other way.

Plus, the college did change the policy. The Taylor Swift hypo might have pleased certain fans, but how far did that take you? Checking, there she was sued & then countersued for a dollar to allege the other person was the one at fault. The jury found she was right, finding fault on the other side. It is not quite the same thing as this lawsuit and it seems to be a misleading example in that respect.

tjchiang said...

I think your general point is fair but this specific example is not a good one. If we enact a constitutional amendment today limiting federal court jurisdiction to, say, "disputes," then it is perfectly consistent with public meaning orginalism to say that we should look to what types of cases courts understand to be "disputes" within the conventional legal meaning of the word (e.g. an ex parte filing may not be a dispute). The connection between historical practice and original meaning isn't only that people generally intend what they say and say what they intend; it is also that the meaning of words is often better gleaned by reference to actual practice than by abstract verbal formulations. If Congress enacts a law prohibiting the playing of "soccer," we can determine the meaning of the word by reference to the formal FIFA rules of the game, or by looking at the real world and seeing what kinds of games involving kicking a round ball are played and are characterized as "soccer." The latter method is why I would certainly consider a game on a blue surface (a violation of the FIFA rules) that otherwise fit conventional understandings of "soccer" to still fall within the prohibition.

Marty Lederman said...

As you know, Mike, I agree with you on the dueling originalisms point.

On the merits, I wonder whether prhaps both the CJ in dissent and Justice Thomas in the majority are correct about one important thing--and thus wrong about a crucial point on which they agree, concerning the modern Court's standing "test."

The Chief writes that "an award of nominal damages does not alleviate the harms suffered by a plaintiff, and is not intended to." He's right that, isn't he? (Thomas's response that it's a "partial remedy" for actual harm suffered is fairly absurd.)

But Thomas is also right that, since time immemorial, courts have "routinely awarded nominal damages alone" and no one thought "those damages were without legal effect." Based upon this correct understanding, Thomas reasons that such nominal damages "must have provided redress"--because redress for proven injury is a necessary component of Article III standing.

Yet, again, the Chief is right--such nominal damages *don't* provide redress for any proven injury.

So how do we reconcile these apparently irreconcilable correct views?

By realizing that, notwithstanding the modern Court's insistence to the contrary, federal courts *do* have power to entertain suits even when the relief sought wouldn't redress the injury suffered. In other words: Thomas's history shows that the third Lujan requirement for Art. III standing is just mistaken.

Hashim said...

Marty - why do you think it is absurd to treat nominal damages as partial redress? If a pltf suffers only $1 of actual damages (eg, theft of a dollar), an award of a dollar is obviously tangible full redress. And it seems quite obvious that the pltfs here suffered at least a dollar of actual harm - among other things, they plainly suffered emotional distress from the deprivation of their speech rights, and that distress is worth at least a dollar in tangible partial redress, even if they didnt put on evidence to quantify it further. (I'd also say that the ability to speak has inherent value, and thus the deprivation causes inherent damage, such that a $1 is tangible partial redress.)

For that reason, the history at most shows that the founding generation disagreed with you on the debatable point whether money always constitutes tangible redress for past injury (which is why punitive and statutory damages are also ok regardless of likelihood of future injury). That hardly shows that there is no redressability requirement at all in the cases where that requirement typically matters- namely, where the relief provides literally no tangible benefit whatsoever to the pltf (eg, an injunction, or civil penalties paid to the govt rather than the pltf, where there's no likelihood of future violations; or relief entered against only one party where the injury is likely to persist absent relief against some non-party).