Wednesday Writs: Chief Justice Roberts All By Himself

Chief Justice John G. Roberts Jr. attends the 59th Presidential Inauguration ceremony in Washington, Jan. 20, 2021. President Joe Biden and Vice President Kamala Harris took the oath of office on the West Front of the U.S. Capitol. (DOD Photo by Navy Petty Officer 1st Class Carlos M. Vazquez II)

L1: I like it when SCOTUS hits us with odd divisions and unexpected alliances. I love a good Sotomayor/Gorsuch team-up for the rights of criminal defendants, or a strategic John Roberts machination. This week, we have a brand new 8-1 that has the Chief standing alone against his brethren and sistren in a case about First Amendment rights on college campuses.

Actually, our case of the week, Uzuegbunam, et. al., v Preczewski, et. al., involves some legal nuances more than any substantive issue about First Amendment rights. The Plaintiff Uzuegbunam is an evangelical Christian who attended Georgia Gwinnett College. He was on campus giving a speech about his faith and handing out literature pertinent to his religion when a campus security guard made him stop, directing him to two “free speech zones” on the campus (which still required a permit.) Uzuegbunam obtained the permit and resumed his public proselytizing, but once again he was asked to stop, this time due to complaints by other students who apparently found his message offensive. He had spoken for only 20 minutes when he was informed that speech which “disturbs the peace and/or comfort of persons” was prohibited in the free speech zones. Under threat of discipline, the plaintiff stopped his speech. Another student sharing his faith, Joseph Bradford, decided not to give a similar public demonstration after learning of Uzuegbunam’s predicament.

Both students sued the college on First Amendment grounds, seeking nominal damages and injunctive relief. The college initially defended their policy, describing Uzuegbunam’s speech as “fighting words”, but ultimately opted to end their policy at the heart of the dispute. The college believed this effectively ended the suit as moot, but the students maintained that their request for nominal damages kept the suit alive, even if injunctive relief was no longer in play. The District Court disagreed and dismissed the case as moot, a decision affirmed by the Eleventh Circuit. The Circuit Court conceded that nominal damages can, in some instances, keep an otherwise moot case alive, but not in this case because the plaintiffs did not seek compensatory damages.

The Supreme Court granted certiorari to determine whether a plaintiff who has suffered a “completed injury” and who 1)establishes injury and 2)makes a showing that the injury is traceable to the defendant’s conduct can show the third prong of standing, the availability of a remedy, by requesting nominal damages. More briefly, the question before the Court is are nominal damages a remedy to a constitutional violation?

Justice Thomas wrote the majority opinion. The Court examined the use of nominal damages as a form of relief in common law. The college argued that nominal damages addressed only ongoing or future injury. The Court illustrated this with an example of a case involving the diversion of water onto the property of another. If a property owner took no action against this type of trespass on his land, he could lose the right to do so at a later date through adverse possession or prescriptive easement. If the landowner could secure a declarative judgment and nominal damages from the court, he could protect his future interest. But the college maintains that nominal damages are not appropriate to remedy a past injury.

Justice Thomas and the majority disagree, citing historic precedent. At one point, actual damages had to be proven in order to sustain a case. Eventually, however, that changed, as Courts recognized that any legally recognized injury causes damage, even if not compensatory, statutorily defined, or punitive. In these cases, nominal damages were awarded, even in the absence of a future or ongoing injury. This was the practice prior to and subsequent to the Constitution. Citing Lord Holt in Ashby v White England in 1703 and Justice Story in the 1838 case of Webb v. Portland Mfg. Company, Thomas points out that the law requires only proof of an injury, not provable damages; “nominal damages are available ‘wherever there is a wrong’.”

The college – and the dissent – next argued that nominal damages are intended for those who have claimed compensatory damages but failed to prove a specific dollar amount. The Court says this is backwards; nominal damages are the default, unless a plaintiff proves a specific dollar figure. The Court concedes that there is some precedent that nominal damages are meant to be purely symbolic. They are damages in name only, hence nominal. But though a few cases have taken that position, “this view is against the weight of the history discussed above, and we have already expressly rejected it.” A person who has been awarded nominal damages has succeeded on the merits of his claim.

Justice Kavanaugh concurred with the majority, writing separately to state his belief that a defendant should be able to accept a judgment against him for nominal damages, “and end the litigation without a resolution on the merits.”

Kavanaugh’s caveat is also mentioned in the dissent by Chief Justice Roberts, among several other things. Roberts first points out that in addition to having no actual damages, the plaintiffs are no longer students at Gwinnett College, and the complained-of policy is no longer in effect. Chief Justice Roberts says there is no longer any relief available to the plaintiffs, and thus their case is moot. He then takes a sort of “slippery slope” argument tact, warning that the majority view will lead to federal courts being overburdened by suits in which the plaintiff seeks a single dollar, and because he “would place a higher value on Article III”, he dissents.

Deciding a moot case, Roberts says, puts the courts in the position of writing advisory opinions, which it is not to do. Uzuegbanum’s status or condition is not effected by an award of nominal damages, in Roberts’ opinion, and is nothing more than an affirmation of the plaintiff’s interpretation of the law. It is no remedy. He says the majority’s opinion turns federal courts into “advice columnists”.

In Chief Justice Roberts’ view, the majority’s reliance on historical common law is misplaced because in this instance, it is incompatible with the “tripartite allocation of power” created by the Constitution. “We likewise should know that a bare request for nominal damages is not justiciable because the plaintiff cannot “benefit in a tangible way from the court’s intervention.” The requirements of Article III are not met merely because a party has asked the Court to declare his or her rights, Roberts says.

Though the majority stated that nominal damages are not intended to be a consolation prize, Chief Justice Roberts believes that is exactly what they are: a consolation for a litigant who has been unable to prove any dollar amount of damages. He is not persuaded by the majority’s reference to Justice Story and Lord Holt in holding that the law requires nothing more that proof of injury. He points out the Lord Holt was the lone dissenter in Ashby (quipping there is “no shame there”) and that Story made contradictory statements elsewhere, and therefore does not give the idea much weight.

Chief Justice Roberts finds the majority’s decision to be an unwise expansion on the power and purview of federal courts:

Five years after Hamilton wrote Federalist No. 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.” (Citation omitted.) 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 damage 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.

L2: Is it expression protected by the First Amendment, or is it revenge porn? Guess what former Rep. Katie Hill thinks?

L3: Chinese authorities charged 47 “democracy advocates” with conspiring to subvert state power – by participating in an election.

L4: The trial of former Minneapolis Police Officer Derek Chauvin is underway. Chauvin is the officer whose knee George Floyd died last summer. It seems the case is likely to boil down to which expert the jury finds more credible. Those in the know fear the prosecution has a big hill to climb.

L5: Florida AG Ashley Moody is suing the Biden Administration over what she describes as “thumbing its nose” at federal law regarding its refusal to deport alleged criminals. “Come on man, do your job!” Moody implored on Fox and Friends.

L6: Trump to GOP: Stop using my name and likeness to raise money! Trump to GOP voters: Give me your money.

L7: Another one bites the dust: Trump’s defamation lawsuit against the New York Times for its characterization of Trump’s relationship with the Russians was dismissed, with the Court finding the former president had proven neither knowledge of falsity nor malice.

L8: Four men spent almost two decades in prison for murder before prosecutors admitted it was a mistake and released them – but not before requiring each of them to sign a promise not to sue. The men did sue, alleging they were coerced into signing the agreements in exchange for freedom. A lower court dismissed the lawsuits, but the Circuit Court reversed. SCOTUS has declined to intervene, paving the way for their suit to proceed.