Posts Tagged ‘Kagan’

The Supreme Court heard oral argument last week in First American Financial Corp. v. Edwards. The case calls on the Supreme Court to address the relationship between Article III standing and federal causes of action for statutory damages. The Federalist Society recently posted my post-argument podcast on the case.

I don’t have a confident prediction about how the Supreme Court will decide the case. But with four Justices virtually certain to find standing (Breyer, Ginsburg, Kagan, and Sotomayor), the challenge for petitioners is to gain the votes of all of the remaining five Justices. (In this sense, the case is like the upcoming health care cases, and many others.)

The decision will depend on whether all five Justices that petitioners need are persuaded that the interest protected by the statute is sufficiently distinct from the interests protected by well-established causes of action that do not require the plaintiff to show consequential harm.


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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.”)

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