"How Liberals Can Win by Losing at the Roberts Court"

I have written this piece for Slate. It begins:

At the recent Supreme Court oral argument in the Citizens United case, about the constitutionality of limits on corporate spending in elections, new Solicitor General Elena Kagan gave a refreshingly honest answer to a question by Chief Justice John Roberts: "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."

Across liberal public interest law firms, in the Department of Justice, and at civil rights organizations, that answer surely resonated. The fact is that since Justice Sandra Day O'Connor's departure, as the court has moved sharply to the right, the question for liberals with cases before the Supreme Court often is not whether the left will lose but how it will lose. It turns out that some ways of losing are worse than others. In short: Broad, constitutional holdings that shut down entire lines of cases in all federal and state courts are much worse than narrower rulings that leave open future litigation and put off larger questions for another day. So among liberal advocates, countless hours are spent strategizing over how to lose well at the court.

Posted by Rick Hasen at September 15, 2009 08:27 AM