July 23, 2019

We often say that IJ litigates cutting-edge cases and that these cases are uphill battles. What does that mean in the real world of courtroom litigation? It means that we frequently litigate about situations that no one else has challenged; we come up with legal theories that no one else has taken to court; and we pursue theories that we think are viable, but that few—if any—others have won. And we are remarkably successful.

But litigating cutting-edge cases also means that we sometimes lose in court. Trial courts, the first courts to hear any case, do often rule in our favor. However, there are many situations where lower courts are unwilling to go out on a limb for a theory that is not well established. As a result, many of our cases must be resolved on appeal.

This plays out in a number of ways. Sometimes, the lower courts will outright acknowledge that the issues should be decided by a higher court. In our case challenging Georgia’s licensing law for lactation consultants, for example, during oral argument, the trial court judge announced that he was hesitant to rule for the government but was issuing his ruling quickly so that “if I’m wrong,” our clients could “do what they need to do” and appeal the case to a higher court. In ruling for our opponents in our challenge to Maine’s prohibition on using tuition scholarships at religious schools, the trial judge wrote: “My decision not to decide the ultimate question the parties and amici pose . . . is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court.

At other times, courts are so wedded to deference to the government that they rule against us without even acknowledging the possibility of reversal. This happened in two of IJ’s recent vending cases, including our challenge to blatant economic protectionism in Chicago—and the draconian means the city of Chicago uses to enforce it. The Illinois Supreme Court handed down a ruling that allows cities to prefer brick-and-mortar restaurants to food trucks, and shamelessly favor them with protectionist laws, and to mandate that all food trucks submit to ongoing GPS tracking so that the city can be sure they cooperate. Portions of this ruling directly contradict U.S. Supreme Court precedent from only a few years ago, and we will be seeking review of the decision.

Read more about the Chicago Food Trucks case.

And even when we lose on appeal, IJ does not give up. When we mounted a property rights challenge to the city of Miami Shores’ prohibition on front yard vegetable gardens, we were unsuccessful in court. But we were so determined to help our clients that we vowed to get the law overturned. We persisted through not one but two Florida legislative sessions, and in June of this year we succeeded in getting a state law passed that freed our clients to finally replant their beloved garden.

Read more about IJ’s case to fight for Hermine Ricketts and Tom Carroll.

In a legal climate where by far the easiest path for judges is to simply defer to the government in constitutional cases, asking courts to take seriously their responsibility to evaluate laws and regulations that violate constitutional liberties can be challenging. But IJ’s commitment to our clients and to the rights of all those like them means that we are going to keep asking—and appealing—until we secure these vital freedoms for all Americans.

Dana Berliner is IJ’s senior vice president and litigation director.

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