It’s always better to win than to lose, but if one is going to lose, there are better and worse ways of doing so. I am not a political analyst and am much more comfortable parsing precedents than polls, but it seems to me that Virginia’s loss on jurisdictional grounds in Virginia v. Sebelius was a better way for Attorney General Cuccinelli to lose the case than a loss on the merits. There are two reasons. First, it allows the AG to assert that the only federal court to reach the merits of the constitutional challenge ruled in Virginia’s favor. Second, it provides the AG with some amount of solidarity in the loss. The AG’s first news release reacting to the decision correctly points out that the Virginia Health Care Freedom Act–which the Fourth Circuit found insufficient to generate standing–was enacted with bipartisan support. Given that political reality, the depiction of this lawsuit as one man’s crusade is inaccurate. And because the lawsuit was not one man’s crusade, the loss was not one man’s loss. Far better to lose on a jurisdictional ground, when one can describe the decision as an insult to the bipartisan group of legislators who voted to enact the Virginia Health Care Freedom Act, than to lose on the merits and suffer a federal court rebuke of one’s constitutional vision.
(N.B. Thinking about better and worse ways of losing a case reminds me of this comment by then-Solicitor General Kagan in the Citizens United oral argument: “If you are asking me, Mr. Chief Justice, as to whether the government has a preference as to the way in which it loses, if it has to lose, the answer is yes.”)