Turning Losses Into Opportunities For High Court Review

Supreme Court victories are important—and, as our cover story shows, IJ just had our second one this year. But victories like that don’t just happen. Instead, they’re the product of long-term dedication to seizing opportunities whenever they arise. 

And one way to create opportunities is to lose. At IJ, we deliberately view every loss as an opportunity to achieve a bigger victory. It is tempting to view a bad decision from a court as a defeat, as an excuse to rest your head on your desk and have a good cry. But it’s not that. A bad decision from a trial court is an opportunity to get a big win from an appeals court. And a bad decision from an appeals court is an opportunity to put the issue squarely before the Supreme Court. 

Often this magazine covers only the end of that process—the triumphant victory. But much is happening behind the scenes. Take our current Takings Clause work: Longtime readers of Liberty & Law will remember Vicki Baker, the retiree whose Texas home was destroyed by a SWAT team pursuing an unrelated criminal. IJ’s theory is that this sort of destruction is a taking. The government has to pay compensation if it destroys an innocent person’s home to catch a criminal, just as it does if it destroys a home to build a road. We won on that theory at trial—the first victory of its kind nationwide—only to see it reversed on appeal.

Or you may recall the Brinkmann family, who saw their plans to open a hardware store on Long Island thwarted by the town’s sudden decision to condemn their land to build a “passive park” (that is, an empty field). IJ sued (because eminent domain is for “public uses,” not for no use at all), and there, too, an appellate court ruled against us.

But both of those are opportunities. Both cases drew powerful dissents from judges who agreed with IJ’s position, and both now give us a chance to ask the Supreme Court to take up the case.

And similar opportunities arise in other areas, such as our free-speech work. You may, again, recall recent articles about our victories for the First Amendment rights of North Carolina engineer Wayne Nutt or the “death doulas” of Indiana—but amidst those victories, two different appeals courts in the past year have ruled that the simple act of taking or even drawing pictures can be prohibited as unlicensed “surveying.” 

Those losses, too, present an opportunity—one born of the combination of success and failure. Lower courts sharply disagree with one another about how the First Amendment interacts with occupational licensing laws. The cases on each side of that disagreement are overwhelmingly IJ cases, which is a sure sign we’re in the driver’s seat of a truly cutting-edge constitutional debate.  

Of course, asking the Supreme Court to take any case is a longshot; the Court accepts fewer than 1% of the petitions it receives. But that is why IJ’s goals are long term. Even if a specific petition is unsuccessful, it is an opportunity to educate the Justices that there is an ongoing constitutional debate—something that lower-court judges are actively fighting about and that the Court will eventually have to resolve. And IJ will continue seizing opportunities to make sure that we’re on the front lines when it finally does.

Robert McNamara is IJ’s deputy litigation director.