June 27, 2012 is a special anniversary for IJ. It marks ten years since the U.S. Supreme Court decided Zelman v. Simmons-Harris, upholding the constitutionality of school choice under the federal Establishment Clause and giving IJ a victory in its first appearance in the Supreme Court. Getting a favorable decision from the Court on this question had been a goal of IJ since we opened our doors in 1991, and the decade since Zelman has seen an explosion of school choice programs. AlthoughZelman represented the first IJ case to reach the Supreme Court, four more IJ cases have followed it there, yielding three more wins and one loss.
Incredibly, IJ has now created Supreme Court precedents under all four of our litigation pillars. Zelman was followed by Swedenburg-v-Kelly, an economic liberty case involving interstate wine sales, that was successfully argued by IJ’s co-founder Clint Bolick. Just this past term, Bill Maurer, executive director of our Seattle state chapter, argued and won the Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett & McComish v. Bennett, significantly advancing our First Amendment Free Speech practice. In another significant first, we also had a victory this term in a second school choice case, Winn v. Garriott, that will make it more difficult for the usual suspects to attack school choice programs under the Establishment Clause, thereby giving IJ two cases, both victories, in one Supreme court term.
IJ’s sole loss in the Supreme Court came in a property rights case, Kelo v. New London, argued by IJ’s longest serving employee, the indomitable Scott Bullock. Although the Supreme Court ruled 5-4 in favor of New London’s taking Susette Kelo’s “little pink house” for transfer to a private developer, IJ largely turned defeat into victory by spearheading legislative efforts to strengthen state protections against such abuse of eminent domain, efforts resulting in stronger protections in 44 states.
The goal of all public interest law firms is to move the law in the direction they desire, and one important measure of success is establishing significant precedents at the Supreme Court. Ten years ago on June 27th, 2002, IJ achieved its first such victory with Zelman, which took away school choice opponents federal constitutional claim. Virtually all subsequent attacks on school choice programs have only cited state constitutional claims. With Zelman, IJ crossed a significant threshold, establishing us a law firm to be reckoned with. Our subsequent record in the Court has confirmed our effectiveness across all four of our litigation pillars, and our successful campaign against eminent domain abuse after Kelo has demonstrated our resilience and ability to turn even defeat into positive legal change.
Dick Komer is an IJ Senior Attorney.