Losing Twice
California Lawyer

Losing Twice

Harms of Indifference in the Supreme Court

September 2011

Losing Twice: Harms of Indifference in the Supreme Court
By Emily Calhoun
Oxford University Press, 165 pages, $39.95, hardcover

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As University of Colorado Law School professor Emily M. Calhoun would have it, Betty Dukes lost twice in June when the U.S. Supreme Court tossed her gender bias class action in Wal-Mart Stores Inc. v. Dukes: Not only did she lose on the merits but the loss was made worse by the Court's lack of respect for her "constitutional stature." According to Calhoun, justices should "write opinions that manifest a respect for the equal moral and political agency of losers."

I can almost hear Justice Antonin Scalia scoffing, as he did when discussing Bush v. Gore during an appearance on 60 Minutes: "Get over it!" And indeed, my initial reaction, as I was ploughing through Calhoun's erudite but challenging meditation on the perils of litigating disputes over constitutional rights, was something to the effect that civil rights litigation, like old age, isn't for sissies.

About halfway through the book, however, I began to see her point that "justices owe an obligation to listen to and take serious account of the values and interests identified as important by constitutional losers." This I well understand as a litigator: For clients, being heard and taken seriously can be as important as winning. When a court treats a losing litigant with disrespect, it not only demeans the client, it conveys the sense one party has not had its day in court, which in turn tarnishes the institution itself.

That brings us to judicial legitimacy, which Calhoun calls "a central concern" of her book. Judicial avoidance of harm to constitutional stature "will reassure citizens that the institution is attempting to behave legitimately toward even the losers," and "may be the only way for an institution to sustain legitimacy as society changes over the years."

So what is to be done? At a minimum, she writes, justices owe the loser an "acknowledgment" that "honors the humanity and moral stature of the person harmed." But acknowledgment alone is not enough; justices should also actively ameliorate the harm. Here, Calhoun is vague, offering such bromides as "justices should convey humility in their opinions," should "use language carefully and with a proper ethical orientation," and "should manifest remorse for the necessity of their tragic choice and the consequences for constitutional losers."

One example of ameliorating harm she cites is Lawrence v. Texas, in which Justice Anthony Kennedy addressed supporters of a statute criminalizing homosexual conduct as people holding "profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives."

I'm happy enough when a judge isn't downright nasty to me. But clients deserve more than that, especially at the Supreme Court. Constitutional rights litigants perform a noble function. It well serves the Supreme Court's institutional legitimacy to treat them with respect. When that doesn't happen, and they "lose twice," the Court also loses.

Jon B. Eisenberg is an appellate lawyer in Oakland and principal author of California Practice Guide: Civil Appeals and Writs (The Rutter Group, 2010).

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