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 The fact that the college had withdrawn the speech code challenged in the suit, he wrote, did not make the case moot.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.
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
I think Justice Kavanaugh came close to right in his concurrence when he wrote “… that a defendant should be able to accept the entry of a judgment for nominal damages against it and thereby end the litigation without a resolution of the merits.” Roberts was more elaborate with the defendant’s ability to file an offer of judgment for one dollar. I am not a lawyer, so don’t know if the “without a resolution of the merits” clause is accurate in such situations.
Certainly once a case is down to nominal damages, it should be less expensive to resolve for the nominal damage request than to continue litigating. So the defendants lawyers should be telling their client to settle or make that offer of judgment. And a defendant should do it unless it both amounts to a resolution of the merits and they intend to go back to the practice they have purportedly stopped.
The real purpose of these cases is to get a determination on the merits, so the nominal damages aspect is just a mechanism to keep a case alive even if the underlying issue is mooted. As with so many constitutionality issues, it’s not about money, but the case and controversy clause of the Constitution requires there be an issue to resolve.
If we can have worldwide Internet outrages for nothing at all, surely we can have a federal case for a dollar. I can still remember when a dollar meant something.
Sure, play the age card, old man.
Not a lawyer, but if the SCOTUS did not rule on this, wouldn’t the college be free to reinstate their stupid policy in the future?
They would, as would every other college not a party to this action since there is no holding that says they can’t.
I read CJ Roberts’ dissent as warning the rest of the judiciary that, with this decision, his colleagues have now expanded the trial courts’ workload. I know you’re asking the questions in this here establishment, but does the average person care about the weight of the federal courts’ dockets?
I did as well, but as we know, it’s not easy or cheap to pursue these cases, so the fear of a tidal wave of constitutional claims overwhelming federal court dockets seems a bit overwrought.
Yes…for exactly the reason you specified. It prevents the defendants from saying “just kidding!” and then reinstating the same rule/policy when no one’s looking.
The underlying facts were pretty egregious. The petitioners’ dollar worth of damages has no practical value but the symbolic value is important enough to be considered a redressable injury.
NE
I wonder if the Court would have been better off applying the mootness doctrine exception (capable of repetition yet evading review) rather than nominal damages?
I’m not sure if the court really acknowledges to themselves how long lawsuits take – often years. In some of the Covid “shadow docket” cases they had discussions around that mootness doctrine where it felt to me like some of them were explaining to others that cases take more than just a couple days to resolve.
Nominal damages are enough. You see, my client really really wants a determination on the merits more than any amount of money I can prove he actually lost. He’d actually refuse that Rule 68 offer of judgment for $1 because it means more than $1 to him to get the Court to determine the rights and obligations of the parties if any. Nominal damages aren’t really $1, the amount is arbitrary. Offer me a confession admitting to everything in the complaint + $1 + my extremely reasonable attorney fees and costs and now we’re talking. It’s not about the dollar.
The Court decided the case properly. Federal courts issuing something more akin to declaratory judgments on nominal damages claims rather than money judgments is not plunging our judiciary into the role of “advice columnists”. Time to stop avoiding the controversies and get to actually deciding shit, dear federal judges. That the Court could have employed an exception to mootness as well doesn’t mean the nominal damages analysis was wrong.
So you concur, Justice Kid?
Yes, courts should generally be in the business of deciding questions before them rather than punting on procedural grounds. Money isn’t everything and nominal damages are just a placeholder for “more than nothing”. My bias for plaintiffs might be showing, but I concur. “No harm, no foul” is not the law.
What did Roberts write when a recent New York City gun case was mooted when the city changed the law at the last moment to avoid bigger problems at a national level for anti-gun groups?
First, you get one comment without a real email, but only one. Second, damn fine question. I wondered about that case as well.
He was presumably with the silent majority in the per curiam. Kavanaugh concurred. Alito (with Thomas mostly joining) dissented.
Of course. That’s not really the question.
In the NY gun control case there was no claim for damages. The plaintiff tried to add a damages claim before SCOTUS because the law had already been changed.
So it was the mootness exception or nothing.
An entire post on monotones, and no mention of “capable of repetition, yet evading review”.
Sad.
Ahem.