The first argument I saw at the Supreme Court was then-Solicitor General Elena Kagan’s debut in Citizens United. I was not sure what to expect. I held what I believed was the middle-of-the-road view that the government can regulate campaign finance. But having attended college during the Bush years, I was equally convinced that the government could not ban books or movies. The first argument had made clear that the Court did not think the government could ban books. That the government had not figured out how to walk back that position before the re-argument was startling. To me, the books hypothetical made clear that the real mystery of Citizens United was why the government litigated the case in the first place. Given its inability to draw a line between the facts of the case and banning books, there was no way the government was going to win, much less in front of this Court. Kagan likely saw it, too. Her argument had only just begun when, in response to the Chief, she said: “If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.”
Have a preference about how to lose and make a plan. This must be part of the federal litigation agenda for progressive lawyers, regulators, and legislators for the foreseeable future. While bleak, planning to lose is not about conceding defeat. It’s about laying the groundwork for a brighter future and avoiding precedential barriers to that future.
What does strategic losing look like? It means stepping back from arguments that you believe are right and asking this question: Are there five votes on the Supreme Court that agree with this view? Progressives should familiarize themselves with the outer boundaries of conservative and libertarian thought. While there are many good arguments against these ideas, it’s not enough to rest on neutral principles and good policy. Being right has never been enough to win in court. This is especially true once there is a line a precedent pointing away from justice—just look at Federal Arbitration Act jurisprudence.
Strategic losing aims to contain conservative test cases before they metastasize. An example of what not to do lies in California’s recently-passed a law, SB 826, requiring corporations to include women on their boards. Board diversity is a noble goal, one that may well increase shareholder value (although the empirical evidence here is mixed). But it’s a stupid opportunity that may allow the Court to make bad law. There are at least three doctrines that the Court could use to strike down SB 826, all of which would create durable hurdles to future progressive goals. First is the internal affairs doctrine—the notion that a company’s state of incorporation exclusively governs its internal affairs—which the court could easily constitutionalize under the Commerce Clause. Losing on this ground could hinder future state-led workplace and compliance regulations, but may not dramatically change the legal landscape. Next up is Equal Protection itself. A loss on this front could make it significantly more difficult for states to take any action aimed at remediating sexism. And finally, the biggest cudgel is the First Amendment. It’s not hard to tell a story in which expressive association (as articulated in BSA v. Dale) paired with a vision of corporate personhood (Burwell v. Hobby Lobby) forbids states from requiring corporations to include women on their boards. And if the court were to use the First Amendment to strike down California’s law, what else might fall with it?
In sum, this one law that at best performs progressive values may undermine practical efforts to implement progressive values in the future. Let’s hope that those who must defend SB 826 can find waivers or reach an agreement on the internal affairs doctrine before any court has to wrestle with the Equal Protection or First Amendment issues.
The early days of the new Court call for particular caution. We don’t yet know what certiorari will look like now that there are 4 votes that may hew closely to Republican policy goals. This means that we don’t yet know the court’s appetite for reopening precedent and, more importantly, for striking down state laws. Until we do know, tread lightly. Don’t be the government in Citizens United. If you don’t have five votes, and your client agrees, conceding cases today may be the best way to win tomorrow.