“Uh oh” (as I said this morning on Facebook). “Linda Greathouse, longtime Pulitzer Prize-winning Supreme Court correspondent for the New York Times, explains how the theocrats on the Trump court have opened the door to a very narrow brand of fundamentalist bigotry” in Uzuegbunam v. Preczewski:
Anyone who still needs proof of how the Supreme Court is changing need look no further than the single decision the justices handed down this week. The court held that a dispute that had become moot in the usual sense of that word — the problem was resolved before the case even went to trial — could be litigated nonetheless, because there was still something at stake: the one dollar the plaintiffs were seeking as damages for an asserted violation of their First Amendment right to free speech.
The holding was surprising in its generosity to the plaintiffs, as was the 8-to-1 vote, but that’s not what made Uzuegbunam v. Preczewski remarkable. Rather, it was the identity of the lone dissenter: Chief Justice John Roberts.
And my takeaway from her article (which more or less boils down to Katy-bar-the-door):
I don’t think it’s a coincidence that this case involved not just speech, but religious speech. The case was brought to the court by Alliance Defending Freedom, a Christian-right litigating organization best known for representing bakers and other vendors who refuse to do business with same-sex couples celebrating their marriages. Given the reflexive deference that the current Supreme Court majority pays to any claim that comes dressed in religious garb, it’s easy to see the appeal of this case as a vehicle for keeping open the courthouse doors.
“And it’s not hard to see why the court’s liberals, Justices Breyer, Kagan, and Sotomayor, went along for the ride. Religion is not at the top of their agenda, but retaining the ability of people to vindicate all kinds of rights through access to courts certainly is. Still, their acquiescence to this decision presents a puzzle. The Trump administration appointed more than 230 judges to the federal courts. I’m afraid the liberal justices may be living in a time warp if they retain the view they doubtless absorbed in law school that courts are inevitably a rights-seeker’s friend.”
NYT blurb: Linda Greenhouse, the winner of the 1998 Pulitzer Prize, writes on alternate Thursdays about the Supreme Court and the law. She reported on the Supreme Court for The New York Times from 1978 to 2008. She teaches at Yale Law School and is the author most recently of a memoir, “Just a Journalist.” Other books include “The U.S. Supreme Court: A Very Short Introduction”; a biography of Justice Harry A. Blackmun, “Becoming Justice Blackmun”; and “The Burger Court and the Rise of the Judicial Right,” which she co-authored with Michael J. Graetz.
Excerpt from Scotusblog: Amy Howe, “Court revives lawsuit from student seeking nominal damages for free-speech violation at public college,” SCOTUSblog, March 8, 2021 https://www.scotusblog.com/2021/03/court-revives-lawsuit-from-student-seeking-nominal-damages-for-free-speech-violation-at-public-college/.
The Supreme Court on Monday issued a major ruling in a dispute over free speech on the grounds of a public college. By a vote of 8-1 in Uzuegbunam v. Preczewski, the court allowed a Georgia student to proceed with a First Amendment lawsuit against college officials even after the officials abandoned the speech restrictions at issue.
The student, Chike Uzuegbunam, is an evangelical Christian who was handing out religious literature on the campus at Georgia Gwinnett College when a campus police officer told him that he could only distribute literature by reserving one of two designating areas. When Uzuegbunam followed that advice and reserved an area, another police officer told Uzuegbunam that his speech was disturbing other people and therefore violating the college’s ban on “disorderly conduct.”
Uzuegbunam went to federal court, where he contended that the college’s policies violated the First Amendment. After the college changed policies and Uzuegbunam (along with Joseph Bradford, another student who had joined the lawsuit) graduated, the trial court threw out the case. It ruled that although Uzuegbunam had asked for nominal damages – an award that is small or largely symbolic, such as a dollar – in addition to his request for an order blocking the college from enforcing the now-rescinded policies, that was not enough to allow the case to continue. The U.S. Court of Appeals for the 11th Circuit upheld that decision, agreeing that the case was moot – that is, no longer a live controversy. Uzuegbunam went to the Supreme Court, which on Monday reversed.
Roberts was – for the first time since he joined the court in 2005 – the lone dissenting justice. He would have ruled that because the speech restrictions no longer exist and the student had not asked for any “actual damages,” the case was moot – that is, no longer a live controversy. He reasoned that without either actual damages or the threat of injury at some point in the future, an award of nominal damages simply represents a determination by the court “that the plaintiff’s interpretation of the law is correct — nothing more.” Under the Supreme Court’s decision on Monday, Roberts suggested, “federal courts will be required to give advisory opinions whenever a plaintiff tacks on a request for a dollar.”
Although the question came to the court in the context of free speech on campus, it could have much broader implications, as Barrett noted at the oral argument in January. Barrett asked a lawyer for the Department of Justice whether a dispute over a New York City gun law, which the Supreme Court dismissed as moot after the city changed its policy, might have come out the other way if the challengers had sought nominal damages. His answer? Yes.