That snarkiest of justices, John Roberts, called The Brethren “advice columnists” in his first and only solo dissent in Uzuegbunam v. Preczewski. The 8-1 opinion, written by Justice Clarence Thomas, held that a claim for nominal damages was sufficient to keep the case and controversy alive even after the defendant pulled the plug on the rules at issue.
“Plaintiff used contentious religious language that, when directed to a crowd, has a tendency to incite hostility,” the college’s lawyers wrote.
But the college soon abandoned its defense of its speech code. Its revised policy, which allowed students to speak anywhere on campus, made the case moot, its lawyers argued in court.
At issue was the dreaded “free speech zone,” where a college would specify some tiny spot where nobody went for a few specified hours on third alternative Thursdays (I’m exaggerating, just a bit here) as the locus where students could express their controversial views and no one would be upset by them. After all, no college wants its students traumatized by hearing unpleasant views.
Justice Thomas on Monday instead relied on English common law to explain the role nominal damages play in the judicial system.
“By permitting plaintiffs to pursue nominal damages whenever they suffered a personal legal injury,” he wrote, “the common law avoided the oddity of privileging small-dollar economic rights over important, but not easily quantifiable, nonpecuniary rights.”
It would be odd, he wrote, if the student could sue for “a wasted bus fare to travel to the free speech zone” but not for nominal damages.
In dissent, Chief Justice Roberts wrote that the majority’s approach represented “a radical expansion of the judicial power.”
By “nominal damages,” Justice Thomas means “a dollar and a dream.” Is that enough to justify the Supreme Court’s hearing a case where the real relief desired has already been achieved?
Justice Clarence Thomas, writing for the majority in the 8-to-1 decision, said a request for even a token sum, typically a dollar, satisfied the Constitution’s requirement that federal courts decide only actual cases or controversies in cases. The fact that the college had withdrawn the speech code challenged in the suit, he wrote, did not make the case moot.
“Despite being small,” Justice Thomas wrote, “nominal damages are certainly concrete.”
In a spirited dissent, Chief Justice John G. Roberts Jr. said the majority’s approach will have the effect of “turning judges into advice columnists.”
C.J. Roberts’ concern is that any litigant can tack on a claim for nominal damages where there are no actual damages suffered or provable, and thus keep the case alive. Of course, there’s nothing to prevent a defendant from handing a dollar to the plaintiff at the doorway and saying “problem solved” either.
“If nominal damages can preserve a live controversy,” he wrote, “then federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.”
On the one hand, a defendant can moot a highly unconstitutional law, rule or act, and thus preclude the court from jurisdiction, by rescinding it when faced with litigation. If so, there is no holding that it’s unlawful or unconstitutional, no precedent to be used later when the same thing happens again. They can also wait until the case is dismissed as moot and then reinstate the same unconstitutional act, forcing someone to go through the expense and burden of relitigating the issue.
But is nominal damages of sufficient seriousness to keep a controversy alive and suck up the time of a federal court, even the Supreme Court, when there are more pressing matters for courts to consider, like the nutritional value of Nutraloaf?
When the case was argued in January, several members of the court referred to what Justice Elena Kagan called “the most famous nominal damages case I know of in recent times, which is the Taylor Swift sexual assault case.”
Ms. Swift, the pop superstar, sued a Denver radio host she said had groped her. She sought $1 in nominal damages.
“I’m not really interested in your money,” Justice Kagan said, describing Ms. Swift’s thinking. “I just want a dollar, and that dollar is going to represent something both to me and to the world of women who have experienced what I’ve experienced.”
If there isn’t any substantive remedy sought or needed, but just the “principle” of the matter, should a dollar be enough to make a federal case of it?
*Tuesday Talk rules apply.
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