The U.S. Supreme Court will hear a tax case April 17 that SCOTUS veteran Thomas Goldstein said he built “from the ground up.”
Goldstein said in January that in order to get to the Supreme Court he designed a law meant to challenge a decades old Supreme Court ruling, lobbied to get South Dakota to pass the law, and then went to federal court, fully intending to lose.
And the high court is eventually where Goldstein landed.
While the level of effort by Goldstein may be unique, engineered cases have led to some of the most important decisions by the Supreme Court in recent years. Designer cases have teed up issues for the justices including voting rights, affirmative action, and redistricting, and leave less to chance when it comes to procedural hurdles and unpredictable plaintiffs.
The pursuit for a perfect test case isn’t new, Erwin Chemerinsky, of the University of California, Berkeley School of Law, told Bloomberg Law. Public interest lawyers on both the right and the left often seek out plaintiffs and initiate litigation specifically to change the law, Chemerinsky said.
“The NAACP Legal Defense Fund did this to challenge laws requiring segregation,” Chemerinsky said. And the National Right to Work Committee is currently pursuing cases before the court to challenge union funding schemes, he said.
But the practice does seem to be happening more often, Chemerinsky said.
Advocacy “organizations that want to challenge laws almost always try to find sympathetic plaintiffs,” Kermit Roosevelt, of the University of Pennsylvania Law School, Philadelphia, told Bloomberg Law.
“The cases about detention of Japanese-Americans in World War II are examples: Gordon Hirabayashi set out to challenge the curfew, first by publicly violating it and then, when no one arrested him, going to the local FBI office and telling them he was violating it,” Roosevelt said.
And when the American Civil Liberties Union “looked for a plaintiff to challenge the detention in camps, they carefully picked Mitsuye Endo, a former typist for the state of California who didn’t speak Japanese, had never been to Japan, and had a brother in the U.S. Army,” Roosevelt said. “Someone who was indisputably loyal.” Although decided the same day, the Supreme Court ruled in favor of Endo in In re Endo, but against the Japanese-American individual challenging exclusion in Korematsu v. United States.
“Sometimes the defendants are in on it too,” he said. The “suit that gave rise to Plessy v. Ferguson, where the Supreme Court upheld a Louisiana law requiring the racial segregation of railroad cars, was brought by Homer Plessy (chosen in part because he was a light-skinned black who was consigned to the black car because of the ‘drop of blood’ definition of race) against a railroad that also wanted the law invalidated because it reduced their profits,” he said.
One person, in particular, has been remarkably successful at getting test cases to the Supreme Court recently.
Edward Blum, of the Project on Fair Representation, Austin, was at the center of numerous high court disputes targeting voting rights, affirmative action, and redistricting, even though he isn’t a lawyer. Instead, Blum matches plaintiffs with attorneys in an attempt to overturn high court precedent he doesn’t like.
Blum said the key to getting a test case to the Supreme Court is to ensure that the record is engineered from the initial complaint. You want to make sure that there are no procedural hiccups that are going to stand in the way of Supreme Court review, Blum said.
And you have to be ready to lose, he said. You know going into these cases that you are going to be getting an adverse decision from the district and circuit courts, Blum said. The Supreme Court is the only court that can do what you want it to do: overturn precedent, he said.
Because of that, test cases can get to the Supreme Court pretty quickly.
In one case challenging public union funding, the case was argued at the high court less than three years after the complaint was filed in district court. Michael Carvin, a SCOTUS practitioner and Jones Day partner, filed the complaint and eventually argued the case at the high court.
The court ended up splitting 4-4 in that case, but the issue has been teed up for the court again this term.
There’s an enormous amount of groundwork that happens before the complaint is filed, though, Blum said.
It takes a lot of time to find an Abigial Fisher, Blum said, referring to the lead plaintiff in the case that challenged the University of Texas at Austin‘s affirmative action program.
It can take a year or two to find a plaintiff who has had the right kind of injury in order to challenge the law, he said.
One way Blum recruits plaintiffs is on the internet. His organization, Students for Fair Admissions, asks potential plaintiffs to submit their stories regarding university admissions. In 2014, the group used those stories to file two suits challenging affirmative action programs at Harvard and the University of North Carolina.
Blum admitted that the process isn’t typical. Usually the plaintiffs look for the lawyers, not the other way around.
But Chemerinsky said lawsuits brought specifically to reform the law often arise this way.
There’s good reasons why. Getting a sympathetic plaintiff—as many lawyers bringing test cases do—creates a compelling “test for the law or precedent, so it will make the Court think hard” about the issue.
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