On Tuesday, January 12, 2021, the Supreme Court hears oral argument in Uzuegbunam v. Preczewski. The issue the Court will be deciding is whether the government’s post-filing change of an unconstitutional policy moots nominal-damages claims. The case has important implications for litigation involving myriad constitutional rights, and has garnered national attention. Our panel of experts joins us to discuss oral argument and possible outcomes.
Sarah M. Harris, Partner, Williams & Connolly
Justin Sadowsky, Trial Attorney, Council on American-Islamic Relations
Moderator: Casey Mattox, Senior Fellow, Free Speech and Toleration, Charles Koch Institute
Teleforum calls are open to all dues paying members of the Federalist Society. To become a member, sign up on our website. As a member, you should receive email announcements of upcoming Teleforum calls which contain the conference call phone number. If you are not receiving those email announcements, please contact us at 202-822-8138.
Dean Reuter: Welcome to Teleforum, a podcast of The Federalist Society's Practice Groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of Practice Group Teleforum calls, become a Federalist Society member today at fedsoc.org.
Micah Wallen: Welcome to The Federalist Society's Teleforum conference call. This afternoon's topic is a Courthouse Steps Oral Argument Teleforum on the case argued this morning, Uzuegbunam v. Preczewski. My name is Micah Wallen, and I am the Assistant Director of Practice Groups at The Federalist Society.
As always, please note that all expressions of opinion are those of the experts on today's call.
Today, we are fortunate to have with us Sarah Harris, who's a Partner at the Supreme Court and appellate practice at Williams & Connolly. We also have Justin Sadowsky, who's an Attorney for Council on American-Islamic Relations. And our Moderator today is Casey Mattox, who's a Senior Fellow of Free Speech and Toleration at the Charles Koch Institute, as well as a Vice-President for legal and judicial strategy at Americans For Prosperity.
After our speakers and panel have their opening remarks and discussion, we will then open up the floor for our live audience Q&A. Thank you all for sharing with us today. And, Casey, the floor is yours.
Casey Mattox: Great. Thank you, Micah. My name is Casey Mattox, and I will give you just a bit of a rundown of the background on this case. And then we will kick off a discussion on why this case is important, why you should care, and essentially how we think oral argument went, what the themes are coming out of the argument.
So back in 2016, Georgia Gwinnett College officials stopped a young man named Chike Uzuegbunam from speaking on his campus about his faith. He had gone out close to the library and decided he wanted to discuss his faith. And they stopped him and told him he couldn't do that because the school had a speech zone policy that limited expression of that kind to about one percent of the campus and even then, only about ten percent of the week. So it was a very limited space, basically one patio on the campus that could be used for the purposes of free expression.
So Chike followed their orders. He reserved a time to go to the speech zone and speak about his faith. But when he did that, just within a few minutes, two other officers approached him, demanded to see his card, his permission to be able to speak in the speech zone. And then they told him that, in fact, he had actually engaged in disorderly conduct because he had disturbed the peace and tranquility of other people in that speech zone because of the content of his speech.
Again, everyone agrees that it was simply religious speech. It wasn’t anything more than that or in a different tone. So as a result, he was unable to speak about his faith anywhere on campus. And without that permit, he was banned from speaking then in any of the campus speech zones.
So ADF challenged the policy. As a matter of fact, at the time, this is before I was in my current role. So I was the director of the Alliance Defending Freedom Center for academic freedom. So I was involved in filing that lawsuit. We challenged those policies in federal court. The first response from the Georgia Attorney General's Office representing Georgia Gwinnett College was to argue in part that no constitutional violation had occurred. And as a matter of fact, his speech was not even protected because they argued that religious speech on a college campus was tantamount to fighting words.
They later withdrew that motion to dismiss, decided to change their policy several months later, and ultimately, having changed their policy and more broadly permitting free speech on the campus, then filed a motion to dismiss arguing that the case is now moot, that the policies had been resolved and there was nothing else for the Court to do.
That was then appealed. So the district court granted that motion to dismiss. It went to the Eleventh Circuit which, in an unpublished opinion, upheld the decision dismissing the case on mootness grounds. And the argument was essentially that if you only have nominal damages -- so when we filed the case -- when Chike filed the case, the claim was filed both for injunctive relief to stop the policy from happening going forward but also for a one dollar nominal damages claim for the violation of his constitutional rights.
The Eleventh Circuit agreed with the District Court that the presence of that nominal damages claim, now that the policies had been changed, was insufficient to prevent the case from being moot, and that's the question that the Supreme Court took up. This is occurring on the backdrop of recent cases where the Court has been presented with similar questions, which I'm sure the panelists will get into.
Georgia argues that fundamentally, there is no Article III controversy in this case, that if there are only nominal damages at issue, that that is insufficient to present an Article III question for a court. And so it therefore lacks jurisdiction.
I'll ask then for -- we can begin with Sarah because I would like for both of you to have the opportunity to explain what your interest in the case is and to talk about the briefs that you filed. Then we can get into some of the questions about the argument itself.
Sarah M. Harris: Great. Well, thank you so much for having me and thanks to all the listeners. I think this is a truly important case even though when you hear that the question presented is whether a claim for nominal damages can keep a case alive, you think it's going to be a dry, civil procedure/Article III type case.
But the reason I think my clients and I are interested in this case -- and we filed an amicus brief on behalf of the ACLU, Americans for Prosperity Foundation, Americans United for Separation of Church and State, and the Institute for Justice, so groups that do not often, I think, come together and align on issues.
But what quickly became apparent was that everyone had a story of litigating a case in which you have the civil rights plaintiff, someone whose constitutional rights were violated. The government then gets sued, you sued for an injunction going forward, but you've also made a claim for nominal damages at least because someone was hurt already. The government changes its policy and says well, what else is there to see here? Can't we get rid of this case?
And so everyone had a story about how they wanted to say no, no, my client has still been hurt. There is a harm in the past. It's their constitutional right. It might not be easy to quantify in monetary terms, but that one dollar of nominal damages is something that reflects much more measurable harms, the loss of your constitutional rights. And you should be able to vindicate that by continuing to litigate your case so that courts will say yes, you suffered this wrong and then you get a dollar as a poor but still very real measure of damage for it. So that's our interest in the case.
And our brief, I should say, argued not only that not all damages keep cases alive but also walked through how many cases this really does come up in that governments do often, for good or bad reasons, choose to change their policies when they're sued and looking at all the situations in which plaintiffs have been allowed to proceed with these cases and why the sky won't fall if that rule remains the rule.
Casey Mattox: Great. Thank you, Sarah. And I should say thank you for representing us at Americans For Prosperity Foundation. We were very, very pleased to be on that brief, so appreciate your great work there.
Justin, would you like to offer the position from CAIR and why this is such a concern, I think, really for a broader array of civil rights lawyers.
Justin Sadowsky: Yeah. So CAIR obviously litigates a lot in the areas of both religious freedom as well as equal protection areas. And I came to CAIR thinking that that's what I'd be mostly doing is First Amendment, Fourteenth Amendment, RFRA, RLIUPA, all the fun religion and equal protection statutes.
And it turns out that being a litigator for a civil rights firm that represents Muslims, and I'm sure it's not different for civil rights firms elsewhere, is you're mostly a standing lawyer. You are constantly dealing with the issue that Sarah was referencing, which is the government says oh, we're no longer going to do this, why are we even discussing this?
And we've had cases where it's not the government's no longer going to do this generally. They're just not going to do it to our particular plaintiff. Texas, in one of our cases, literally amended the law not to get rid of the law the district court found unconstitutional but just to say that the class of plaintiffs that brought the case were exempt from the law.
And, again, that's not unusual. We're constantly fighting those battles. But the brief we wrote along with John Friend, who's a fantastic lawyer who helped us out pro bono on the case, was focused on other reasons why courts won't otherwise be able to hear a case primarily because of mootness if you can't bring a damages action. And in those cases, damages actions would only be available under a concept of nominal damages.
We represent a lot of prisoners, incarcerees in RLUIPA cases. Every year we have a series of cases throughout the country where incarcerees are not being fed a Ramadan diet because of the way prisons and jails operate and the availability of food outside of mealtimes. If they're not being fed a Ramadan diet, they're literally not being fed for 30 days.
We have that case and yet, courts have often held that those cases become moot 30 days later. And 30 days is not enough time to bring a case. So if we don't have a damages case, we don't have a case. but there's no physical injury under the prison litigational format, then we wouldn't have a compensatory damages case.
So you don't have -- if you can't bring the injunctive relief case, you can't bring a damages case without physical injury. Absent physical injury, these cases are just not justiciable. And basically, that means those rights that the Constitution affords, both statutory and constitutional rights that, I guess, Congress and the Constitution affords prisoners of religious faith and who are incarcerated in our prisons and jails, they just don't exist.
And so that's what our brief focused on. And our brief mentions a case called United States v. Sanchez-Gomez and discusses that case. That's in part because it's an issue we deal with. It's in part because our co-council's a learned class action lawyer, which is the government's answer to some of these cases, whether it's just a fleeting thing, is maybe if we bring it as a class action.
But as our brief talks about, bringing a case as a class action really makes those cases a lot more difficult, if not impossible, to be broadened, isn't a solution. And so really, in a lot of these cases, if we don't have the nominal damages claim, we don't have a claim at all.
Casey Mattox: Yeah. And I think it's important to clarify here, and obviously if either of you have a check on this, feel free to say so. But this is not novel, the question about whether or not nominal damages should be sufficient to avoid mootness is not a brand-new thing. Essentially, almost every circuit does this right now. This is the general rule is that nominal damages are sufficient except for in the Eleventh Circuit now.
And so that's the context in which the Court granted cert. There are some questions about -- or more around the edges on the doctrine. But the current default, if you are a litigator, is that nominal damages are going to be sufficient. That may potentially be at least some form of a signal to the way the Court may rule but I think not necessarily.
So let me go ahead and maybe get to that question that everyone is really probably joining this call to hear and give you a chance to give an answer to this question and then your thoughts as to why, both from what you heard today and otherwise. Who do you expect to win? Sarah?
Sarah M. Harris: Sure. So with the caveat that the telephone arguments can be harder to call, I do think that Chike will prevail, and here's the reason two-fold. One is listening to arguments and clues that the justices offer. So while they peppered Kristen Waggoner, who did a fantastic job for Chike, and Hashim Mooppan, who did a wonderful job for the United States, with a lot of questions, a lot of the justices seemed to tip their hand a bit more in Andrew Pinson's argument for Georgia. He's also a fantastic advocate.
But some of the clues that I think can show where the justices were going on this were, for instance, when Justice Kavanaugh, who often tips his hand a little more in these arguments than others, said well, I think you have a lot of things going against you, precedent, common law, common sense, and the fact, as you mentioned Casey, that a lot of these other courts of appeals have already been applying the rule that nominal damages keep the case alive and nothing bad has happened.
Where Justice Gorsuch sort of saying to Andrew that he's worried that Georgia's rule in which you have to have some sort of risk that the harm will recur as a basis for nominal damages might really disadvantage people who -- the very people he would expect nominal damages to help, namely people who don't want to claim more money than they actually want and are happy to settle for a dollar or people who are unwilling to plead compensatory damages and go through the process of, for instance, substantiating emotional harm.
So it was some questions like that, I think, in Georgia's portion in the argument suggest that I guess they have at least seven to eight roads for Chike's position. The one, I think, person that I'm not sure where he stands is the Chief Justice who sounded to me much more sympathetic to Georgia's position.
And the second clue, I think, is simply that both in New York State, Rifle & Pistol from last term in which Justice's Alito, Thomas, and Gorsuch basically said that they think that when you have a constitutional violation and that there were some sort of catch harm, that that is sufficient to save the case from mootness. And I think that would equally apply here.
Casey Mattox: All right, and Justin?
Justin Sadowsky: Yeah. I see the case [inaudible 15:50]. I came into this case expecting Uzuegbunam to prevail, and I didn't hear anything differently. I think Sarah's recitation of Kavanaugh, I think, really nails it down. As she said -- as they both said precedent, common law, and common sense.
And I think by that, they mean in order for the government to prevail in this case, they would have to overcome certain Supreme Court precedents, which is always possible. Supreme Court can revisit their precedents, but they were arguing against a historic common law where going back into constitutional times even -- and we are all originalists now. These claims were capable of going forward, and so they were going to have a hard time selling the originalists on the court that the government should prevail, and these cases should no longer be brought under the lack of a case or controversy.
And then on top of that common sense, which as Casey was saying to me earlier, to really understand the backdrop of this case, you need to take a whole day in standing Article III law, but this Court is constantly struggling with when to allow cases to go forward and when not to allow cases to go forward because maybe the case really is not worth the expense on it. There's not enough at stake to really vindicate those rights. And there are issues with -- and then that goes to sovereign immunity and issues qualified immunity, issues of when attorney's fees can be provided, and some of which were discussed in the backdrop of this case.
But based on the questioning I heard, it confirmed is that this would've been a step too far in terms of shutting the courtroom door. And you really need to -- I really would've needed to hear either the Court either to hear them strongly willing to revisit past precedent or past ideas or to sound a little bit more like a court ready to make a revolutionary shift in the way we think of things.
I didn't hear that, and so I agree with Sarah that I'd be very surprised -- I would suspect 9-0. I think -- I don't know if the Chief, if he had his way, but I doubt the Chief is going to push this hard to have a dissent. It might be one or 7-2. But I expect the 9-0 affirmance.
Casey Mattox: So it seems to me that a lot of people listening --
Justin Sadowsky: Sorry. Sorry, not affirmance, reversal.
Casey Mattox: Right. I think a lot of people listening to the argument -- I think Sarah made the point earlier at the beginning about how challenging it is, really, to read tea leaves on these telephonic arguments because every justice is asking questions of every advocate. One way that you could read the tea leaves before was that if a justice had no questions for anybody else and really peppered one advocate, then you could really get a good sense.
When the justices start asking questions, they're almost never -- even if they agree with you, they're rarely asking questions that are you're right, aren’t you? Tell me more about why you're right. They're asking challenging questions. And it seemed to me that the challenges here were around the outer limits of what this could mean. How do we avoid -- if we side for Chike, how do we avoid doing so in a way that creates other problems? Or is a clear rule that just says nominal damages are sufficient, does that work or are there concerns that we should have?
And I'm curious about your thoughts on where those gray areas may have been, particularly in the arguments for Chike. I know that there are differences sometimes in the way people think about cases where there has been an actual application of the policy versus one in which the policy exists. It threatens you in the sense that the government has a policy that says you are not permitted to do this thing or we will punish you but has not actually been enforced against you.
And I think that I could imagine that being a distinction. And I think from Kavanaugh's question, I think he would probably -- at least there was an implication that he would be more comfortable with less attorney's fees in cases where nominal damages were at issue or nominal damages alone.
Bu, Sarah, let's go back to you. What do you think are some of those gray areas in Chike's position that may make their way into an opinion caveating a victory?
Sarah M. Harris: Sure. So I think there's three areas I think you can find from the way the argument progressed. The first you've already alluded to, which is does it matter whether the law's already been enforced or not? And Justice Thomas asked, I think, at least three questions during argument of both sides about this issue.
And what he's really getting at, I think, is if the law has already been enforced against someone, it's easier to find that there is an injury that has in fact happened, a past injury to remedy. Whereas, I think some of the Court seems a little less comfortable with the idea that there might be some sort of chill on speech or some other rate where you're deterred from exercising the right. Have you really proved that, or are there sufficient breaks on showing that you wanted to do something and you couldn't? Can you still get the Court that way?
And so that's the sort of the first area. I think you could see Justice Thomas was a narrow position perhaps revealing to say that it's very clear that Chike had to have school and policy in force against him, so that's not an issue in this case. The Court could conceivably leave open enough guard rails with respect to policies that haven't been enforced yet.
And then secondly, and sort of relatedly, Justices Breyer, Sotomayor, and Alito had a series of questions about Joseph Bradford, who's the other plaintiff in the case, who did make this sort of chilling claim. He said look, I didn't actually try to go in the speech zone, but I did see what happened to Chike. He was threatened with discipline and expulsion, and so I was intending to engage in similar speech. I was deterred from doing so.
And so a series of questions about whether people in his shoes really do have standing and whether the courts -- I think questions about whether the Court's precedents are really doing enough on that front.
But both Kristen Waggoner and Hashim Mooppan, for the government, I think, pointed out rightly that the courts cases, soon as Anthony left, have pretty reasonably strict criteria about how you actually have to plead a chill. You can't just say yeah, I thought about this speech. That's usually not good enough. And so if the Court wants to tighten on that, they could add some potential language in their opinion. But I don't see that as a huge barrier to Chike prevailing.
And then the third limit, I think is something Justice Kavanaugh did drive home, which is there is a fence in these cases that nominal damages are sort of a stalking horse for attorney's fees. And what you don't want to have happen as a policy matter, perhaps, is you let these plaintiffs proceed with simply nominal damages claims or one dollar and then municipalities or states or state officials or individuals are hit with claims for six figure attorney's fees.
And so Justice Kavanaugh's questions were probing how often does it happen in practice, and do the courts' precedents with respect to prevailing parties entitled to attorney's fees and the way those have been interpreted by courts of appeals perhaps suggest that if you have only nominal damages awarded, you should not get a bonanza of attorney's fees and testing whether that's true in practice.
Casey Mattox: Great. And, Justin, anything else to add on some of the other gray areas or ways that the Court might take a step back from a nice clear nominal damages always work?
Justin Sadowsky: Well, all I would say is I think that's mostly right. I think the Court is going to do a lot of the things Sarah mentioned by reaffirming previous limitations on standing and attorney's fees that they have in other cases. And they're going to focus on focus but not to be inclusive on that as the limiting principle on these compensatory damages claims.
But we heard one thing at oral argument that I think might make it into the opinion, which is what if the defendant just tenders the nominal damages, do they have to do anymore? And I think you might see something where the Court might say if they tender the nominal damages, that might be all the vindication the plaintiff is entitled to.
The plaintiff may not have any entitlement to a specific concession or statement or declaration from the Court. They get their compensatory damages. They can claim it and claim victory because of it, but they might not get a statement or anything more that they might want or as Sarah mentioned attorney's fees.
Casey Mattox: I realize this is really voluntary cessation doctrine. But to what degree do you think it will be relevant to the court or could be relevant to the Court that -- well, let me say it this way. One could imagine this case proceeding where the situation happened with Chike, the lawsuit was filed, and the university's general counsel immediately called counsel and said this is the first time hearing of this, we're going to fix it. And they change their policy the following week, and it's sort of wrapped up, right?
That's not what happened here. You had the school actually file a motion to dismiss on arguing that constitutional rights weren't violated and that followed previous letters that had been sent to the school saying these policies are unconstitutional and here's why. But I wonder how much that might also factor into the nominal damages question that there are nominal damages cases where the university or the defendant has been put on notice, and then there are the ones where it immediately recognizes the flaw in its policy and works to correct it. Do you think that'll matter? And that's for either one of you.
Sarah M. Harris: Yeah, this is Sarah. I think that's an interesting question because going into this argument, one of the themes of Georgia's briefing really was look, if you are worried about the practice of governments perhaps strategically mooting cases, then the voluntary cessation doctrine, i.e. the doctrine where courts look to whether the government's actions seem to be in good faith and whether there's a possibility that they will in fact reinstate their policies down the road, how much did they really repent and recant their policy? That sort of a fix.
And the interesting about argument today was that we didn't hear a lot of that. And I think one reason is because I think the justices were sort of less interested in thinking in a policy sense like how do we deal with this issue of governments acting in good faith or not and much more focused on the question presented which is everyone agrees there's a past harm, what do you do about it? Are nominal damages really a form of damages that suffice to let the lawsuit proceed?
Casey Mattox: Justin, any additional thoughts there?
Justin Sadowsky: Yeah. I think this is mostly going to the Court's preexisting attorney's fees analysis. I think the Supreme Court case is Hensley. I know because I've litigated it. The Fifth Circuit version is Dearmore, but I think the Supreme Court case is Hensley where the Supreme Court basically says that you need to get some relief from the Court before the government's change in policy moots a case would still entitle you to attorney's fees, and I expect anything the Court says to that to go back to that. But I otherwise agree with Sarah.
Casey Mattox: Well, I think the Buchanan decision as well, right? Those are -- like we said at the outset, there's frankly a whole litany of non-First Amendment specific standing and conceived pro-law that underlies this case.
So let's talk about Georgia's position. What were the biggest concerns that you heard with Georgia's position, which -- well, Sarah, I'll let you describe Georgia's position. And then what do you think the biggest concerns that you heard from argument today were?
Sarah M. Harris: Sure. So one of the things Georgia, I think, focused on at argument really is their take on the history and saying that -- they're trying to, I think, appeal to a common sense, perhaps instinct when you hear the word nominal damages which is they're nominal. They don't mean anything. They're basically zero dollars. And they are this sort of dinosaur of remedies because at common law before law and equity merged, when you were just proceeding at law for violation of your personal rights, you might have a trespass, for instance, if someone trampled your lawn.
And that's a very hard harm to quantify, but Georgia's take on that is you suffered something and they're saying under the history, you would get nominal damages not only because you've suffered a technical trespass but because the point of these kinds of violations and nominal damages at common law, they say was to make sure you establish a right to prevent recurrences of those violations going forward.
And so they say now, we have declaratory judgment. That takes care of the situation for perspective relief. That's the judgment piece, and then they also say look, nominal damages at common law, you couldn't just get them if all that happened to you was a violation that might not recur going forward. At best, maybe there is some situations where you claimed compensatory damages throughout the case and you just couldn't prove them, you got nominal damages as a consolation prize.
So that's kind of Georgia's theme throughout the argument. I think it got a little bit of traction with the Chief, as you mentioned, but the main challenges to Georgia came from two fronts. One is Georgia got a fair amount of heat with respect to their take on the history and whether they're really portraying the common law cases correctly. Justice Alito gave Kristen Waggoner for Chike a couple of opportunities to hit back on common law examples that might undercut Georgia's position.
And then second of all, Justices Kagan and Barrett in particularly, with a little bit from Justice Alito too, really pressed Georgia on the idea of look, you're claiming that nominal damages aren't compensatory in any way, but is that really right? What if -- Justice Kagan gave an example of Taylor Swift asking for one dollar after claiming that I believe a radio host sexually assaulted her. She only wanted one dollar, and so the question is sort of is Taylor Swift entitled to one dollar, and if that's just a poor measure of the harm she obviously suffered, why is that not okay for constitutional violations too?
So lots of variations on that theme. And at the end of the argument, questions about if it's just -- if a dollar is compensating you for something and isn't simply full compensation, why isn't that good enough? Why isn't that a fine form of damages?
Casey Mattox: Justin, I'll see if you have anything additional to add there but also wanted to see if you had any -- I believe you wanted to touch on some of the common law history issue that was being raised by the Court.
Justin Sadowsky: Yeah. There was a question that Justice Kagan actually asked the government, Hashim Mooppan, in support of Chike. But I think it really did a good job of highlighting the problem Georgia had which is as part of her question, Justice Kagan broke down nominal damages claims as just three historical categories that gave us the common law.
One is in place of a declaratory claims when you didn't necessarily have a declaratory judgment act or a formal way to get declaratory relief. A second was for claims where you did have damages, but the damages weren't easily calculable. We think of that particular issue in religious freedom cases where how do you calculate the inability to pray in the way you want? It's not like you've suffered emotional distress in the way the law typically thinks of it. You've just suffered the inability to have your religious and constitutional rights.
And then the third way Justice Kagan described these historically were vindicative, the classic frame the dollar bill on the frame way. And Georgia got peppered with questions hitting these categories the entire way. And I agree that Mr. Pinson is a fantastic advocate and did the best he could with, I think, a weak hand.
But general rule of advocacy or any advocacy is you want the solution for you to be simple and straightforward and the solution for the other side to be complicated and difficult. It makes it a lot easier to rule for you and you constantly heard Pinson having to say well, this is a very complicated question. We deal with this on a number of levels, or I can distinguish that in these very narrow ways. And that, I think, was another hint I had that his case was unlikely to succeed.
Casey Mattox: So we've talked some about the Chief seemed to be the most skeptical, and obviously, the Chief Justice has a long history with standing law and has maybe, if anything, that has been one of the issues that sort of most defined his career, much less his time on the bench. But, Sarah, how do you see or what do you think of his questioning and I know you had thought that it's possible that he ends siding with Georgia here. What do you think of his line of questioning?
Sarah M. Harris: So let me just summarize it first in case folks weren't able to tune into all of the argument. The Chief's questions hit on some familiar themes. So his first question for Kristen in behalf of Chike was if you're just throwing in one dollar in a situation where there's no compensable injury and no risk of future violations happening, he says, "Doesn't that make a mockery of Article III?"
Now, justices often play devil's advocate, but he doubled down on this throughout the questioning and says look, you don't just get to vindicate your rights in court. That is not the kind of injury that Article III is meant to protect. You need something concrete. What is the concrete injury that nominal damages are -- like, what are nominal damages doing besides symbolism? So that's his first line of question for her.
And then he picks up on a similar theme in questioning Hashim Mooppan for the government. He says doesn't your position confuse standing and merits? We have to decide if there is a constitutional injury in the first place whether to be seen any, right?
And then he picks up on the idea when questioning Andrew Pinson for Georgia in saying just to be clear, you're not saying nominal damages never suffice but in trying to figure out can he elicit a true -- the limits of Andrew's position in a somewhat sympathetic way and giving Andrew a chance to respond to some of, the common law history.
So taking those three things together, I think some questions about are nominal damages just the technical thing that are supposed to let people stand up in Court and vindicate a somewhat abstract constitutional injuries, I think, from the Chief's framing of it. That may not be even injuries at all depending on how they fair on the merits.
And I think there is, Casey you mentioned, a long history here. And I was just forcefully reminded of the Chief's dissent in a case called Campbell-Ewald from the October 2015 term which is about whether an offer of judgment -- if you offer someone money to settle the case, does that end the case?
And the Chief's dissent is all about the idea that if you're just pursuing a case in order to claim victory or in order to vindicate a legal principle, that is not enough to keep it going. And so he would've said the mere offer of judgment, whether or not it's accepted, should moot the case. And I think there's a real flavor of that here, which is it's just a dollar. What does that really mean? Why do you get to keep going for a symbolic dollar? That doesn’t make a lot of sense. So he may be playing devil's advocate, but I would not be surprised if he dissents here.
Casey Mattox: Well, we're getting toward the end of our time, and I want to make sure we have a grab bag opportunity here for people to flag things that were particularly interesting to them. I will note one thing that I thought was interesting was the Justice Gorsuch question about a 25-cent bus fare and probing about why a 25-cent bus fare would be sufficient to keep a case going but a one-dollar nominal damages claim for violation of constitutional rights would not be.
And I didn't hear -- it seemed to me to highlight that Georgia's argument risked being form over substance and that was a challenging question, I thought, for Georgia. But, frankly, all of that pales considering the fact that we actually got a Taylor Swift question. So who wants to -- I know you've already touched on this area, but, Sarah, if you want to pick that up. Do you want to describe any more, I guess, the Taylor Swift question that actually got picked up by two justices?
Sarah M. Harris: Sure. So I don't know if this is Taylor Swift's first time being mentioned in Supreme Court argument or if she is a repeat player here. But Justice Kagan is clearly up on her pop culture knowledge and was pursuing this line with Justice Barrett throughout the argument, which is look, are nominal damages really compensatory or not?
What about situations in which someone has clearly suffered a harm, for instance, Taylor Swift saying that she was sexually assaulted. She's very wealthy. She doesn't want more than a dollar. She doesn't need more than a dollar. She's just pursuing a dollar because she wants to pursue the case and have recognition that she in fact suffered a harm even if a dollar isn't going to fully compensate her injury.
And so the question for Georgia is well, is that dollar enough to keep the case alive? And Georgia ends up in a situation where they seemed to say no, not really. And then I think they do have some sort of -- there are problems at the end of the argument with respect to Justice Gorsuch then picking up on well, look, how can it be the case that Chike, for instance, suffered a violation of his First Amendment rights and then also perhaps had financial injury in the form of gas money? He drove to campus, so a dollar worth of case.
If you're saying that he has a receipt for the gas money or the bus fare that he took to get to campus and that that is compensation for it actually measured the amount he took, how can you get the dollar for that but not for the constitutional violation if there is a situation where you don't have to get 100 percent of you injury compensated, but you have to get something.
And then Justice Barrett really picks up on this with a series of hypotheticals about statutes that give statutory damages for things like annoying text messages that you didn't receive. And she culminates with a great question in saying look, you're telling me, Georgia, that you can get maybe even one dollar in statutory damages for annoying text messages, but you can't get a dollar because the government violated your First Amendment rights?
And so this really, I think, turned into the theme of questioning for Georgia and full of, I think, very accessible hypotheticals for people to feed on.
Casey Mattox: Justin, anything else to add, I guess, before we open up for questions?
Justin Sadowsky: No. I think that covers it.
Casey Mattox: Good deal. Well, Micah, I think we are ready for whatever you got.
Micah Wallen: All right. Terrific. We'll now move to our first caller.
Bob Fitzpatrick: Hi. This is Bob Fitzpatrick in D.C. Someone said this was a stalking horse for attorney's fees, and I couldn't agree more. I'm an employment lawyer, and I represent typically plaintiffs. So I have some sympathy regarding the issue of attorney's fees.
Someone said they saw 8-1 or 9-0, and there was a lot of talk or some talk about Justice Kavanaugh's comments about attorney's fees. I don't see a basis to reduce fees here. I don't see six, much less nine, agreeing there is a basis to reduce fees. It sounds like, from what I'm hearing, that all of the attorney time seems to have been, the plaintiff attorney time, seems to have been allocated to responding to Georgia's defense until it finally went belly up and said okay, we'll change.
And I can't see Kagan, Sotomayor, and Breyer going along with a reduction in fees. So I wonder if it is not more likely that at the end of the opinion, if they say anything about fees, they just say it's back to the district court judge to decide whether fees should be awarded, and if so, how much?
Casey Mattox: Thanks, Bob. And obviously, that's the normal way that these cases are resolved. The attorney's fees question, at least, is resolved is that there's a pretty wide amount of discretion for the district court on the amount of fees. I think there is, to me, there is a -- that's where it could be significant that Georgia at least initially took the position that the Constitution had not been violated here at all and then ultimately ended up changing that position. That's where it could be significant, but curious as to other peoples' thoughts on the call?
Sarah M. Harris: It's certainly the case that the Supreme Court does not usually decide attorney's fees with respect to a particular case. I think what's much more likely is that the Court will send messages about how to interpret its precedent, like Buchanan, on how to figure out what attorney's fees are appropriate in a case to give district courts more guidance on remand in cases -- in this case and in other ones.
And so I could see in response to some of Justice Kavanaugh's question the Court might emphasize that yes, district courts retain discretion to figure out what sort of attorney's fees should be awarded to the prevailing party and that nominal damages do make one side the prevailing party but that courts should keep in mind that nominal damages maybe a factor that significantly weighs against a large award of attorney's fees or something. That kind of language to give district courts guidance in what the Court's precedents in this area mean.
Justin Sadowsky: The other thing I would say is they may, if they accept this tender argument discussion that happened at oral argument where the government could tender the nominal damages and moot the case, unless they go ahead and change, you know McKinnon, if that happens before there's even the preliminary judgment in the case and you can't have a preliminary monetary judgment. So if there was never any declaratory relief or preliminary injunction, you're talking about before the damages are awarded, then even having fought this hard, the plaintiff in this case wouldn't be the prevailing party and wouldn't be eligible for any fees regardless of how hard they fought and how hard the government fought until this point. It's one of the reasons that McKinnon is such controversial decision that's often criticized by a lot of civil rights organizations.
Bob Fitzpatrick: Thank you all.
Micah Wallen: All right. We'll now move to our next caller in the queue.
Caller 2: Hi. Great discussion today. Question regarding the Eleventh Amendment and what role, if any, that's played in the arguments on this. My recollection is that nominal damages are a bit of an anomaly considered equitable relief in order to get around the Eleventh Amendment. So I’m just curious whether the justices seem to have any interest in tinkering with Eleventh Amendment, perhaps broadening it, perhaps reconsidering how they classify nominal damages, anything along those lines.
Casey Mattox: Thank you. I know that there was an opinion, maybe 15 years or so or more ago, that was not unanimous, where the Court was looking at Hans v. Louisiana which had interpreted the Eleventh Amendment which to put my cards on the table, I'm a radical and think that Hans v. Louisiana should be overturned and that the citizens of the same state should be able to sue that state in federal court.
But I'll open it up to the folks here. Do you think -- what openness do you think there is on the Eleventh Amendment or reconsidering those questions that really underlie why this becomes an issue, I guess.
Sarah M. Harris: Sure. This is Sarah. I don't see that being an issue in this particular case. I think the Court has plenty to work with in terms of the expressions before the Court in terms of how to even conceive of nominal damages and how they relate to mootness doctrine. Is the Court going to be thinking about things like, really, I think are more of a question of qualified immunity in a lot of these case, with respect to is it good for suits against individual officials for nominal damages to be able to proceed and establishing the law in a clear fashion so that government can't keep claiming that they got rid of the policy so there is no clearly established law.
Is that in the back of their minds? Maybe, but it didn't really come up a lot of arguments so I take it from that that it probably isn't weighing on the justices too much for this case.
Casey Mattox: I think that's right.
Justin Sadowsky: I agree with Sarah that it's not likely to come up in this issue. I heard nothing come up in this issue. I think that my personal view is I think I'm skeptical that this Court will do anything with sovereign immunity or qualified immunity, even though I agree they should on both counts. I'm much more in line with what I assume Casey's view are on both those issues.
I do also want to just point out as a civil rights attorney working for a nonprofit that even if with a nominal damages claim, even if Uzuegbunam wins and civil rights places continue to bring nominal damages cases, they still have to deal with both sovereign immunity and qualified immunity, depending on the situation, depending on who you're suing, depending on how the case unfolds. And those are still pretty difficult barriers if you're trying to use that to vindicate constitutional rights on a going forward basis, which civil rights nonprofits often have to do in precisely the situations we talk about in our brief.
Casey Mattox: I think the other thing I would just flag for everyone too that one of the other complicating factors of campus speech, litigation specifically, is that for a student like Chike, you can only be subject to a policy like this for up to four years, right, at least for the typical student. So there's this confined period where the policy actually applies to you and then you leave.
There's an incentive for universities, or at least a disincentive for universities to want to hurry up and address your constitutional question because unlike a normal citizen who might object to a city policy on speaking on the sidewalk, for example, and may live there for the next 50 years, if you are a junior in college and you complain about a university policy, there is a date certain when the school can be pretty confident that you're no longer going to be a problem and you're going to leave.
Not saying that universities completely operate on that basis, but I think that's a reality, at least in some cases, that if you are challenging a policy, you're going to be leaving at some point. So.
Justin Sadowsky: And I'll just add that this is even more -- that is true, but it's even more true in an area that we deal with a lot of which is jails. Jails unlike prisons, their people are usually only awaiting trial for a case without bail or if they're convicted of a misdemeanor, which almost always carries a year or less of time and so those people are coming out even earlier. And so for their claims to be vindicated is even -- no, requires a much faster pace. And the government can almost always wait out the clock in those cases. It's very difficult to bring jail cases.
Casey Mattox: Well, I just greatly appreciate Justin and Sarah. You've taken the time to watch or listen to the argument this morning and prepare and offer your thoughts here. And thank you to The Federalist Society for providing this opportunity, and thank you to Micah for helping us make this happen.
Micah Wallen: And on behalf of The Federalist Society, I'd like to thank all of our experts for the benefit of their valuable time and expertise today. We welcome listener feedback by email at firstname.lastname@example.org. Thank you all for joining us. We are adjourned.
Dean Reuter: Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.