Litigation Strategy

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Litigation strategy in constitutional cases is shaped by a single animating principle—a desire to increase the likelihood that a black-robed bureaucrat called a judge will act on behalf of a politically vulnerable applicant to alter or set aside the act of a popularly accountable official. Although the degree of tension that exists between democratic political theory and constitutional litigation varies widely depending on the nature of the case and the attributes of the forum—a police brutality case litigated before an elected state judge poses no threat to democratic decision making; an equal protection challenge to an act of Congress argued before an appointed, life-tenured, federal judge poses a more direct conflict—constitutional cases generally involve persons who are unable to secure redress through more conventional appeals to the political process. Litigation strategy in constitutional cases is designed to increase the potential that a judicial forum will rule in favor of such politically disfavored plaintiffs.

Sustained constitutional litigation in the United States has involved many sets of litigants, including abolitionists versus slaveholders in the period prior to the civil war; radical reconstructionists versus southern revisionists in the period immediately following the Civil War; business corporations versus populist reformers during the first third of the twentieth century; and civil libertarians versus majoritarians during the modern era. Although the political goals of the participants have varied widely, the strategic choices of the contestants have remained remarkably stable, involving five areas: choice of forum; selection of parties; articulation of theories of recovery; choice of tactics; and articulation of antidemocratic apologia.

Choice of forum is the most important strategic decision for a constitutional litigator. In choosing a forum, a constitutional litigator must choose between state and federal court; between a judge and jury; and sometimes between one judge and another. The outcome of many, if not most, constitutional cases turns as much on the wisdom of those strategic choices as on the intrinsic merits of the cases.

Because a constitutional plaintiff is generally seeking to trump a decision that enjoys the imprimatur of democratic decision making, the institutional capacity of the forum to render sustained anti-(or, at least, counter-) majoritarian doctrine is critical to the success of any constitutional litigation campaign. Judges who are themselves elected by the political majority or who are otherwise closely tied to the political process are least likely to enunciate sustained countermajoritarian doctrine. Judges who enjoy maximum political insulation are, on the other hand, in a position to ignore the short-term political consequences of their unpopular decisions. It would, for example, have been impossible for elected judges to have effectively enforced the fugitive slave clause in the pre-Civil War North on behalf of southern slaveholders, or the equal protection clause in the post-World War II South on behalf of black school-children seeking an integrated education.

The search for an insulated judge in constitutional cases has generally led politically vulnerable plaintiffs—whether slaveholders, business corporations, or civil rights activists—to seek a federal judicial forum, for federal judges are appointed and enjoy life tenure. Much of the procedural infighting that characterizes constitutional litigation revolves around attempts by plaintiffs to force claims into insulated federal forums and by defendants to deflect them to more politically accountable state courts.

The search for an insulated forum has led many constitutional litigators to view juries with suspicion. Not surprisingly, a principal litigation strategy of the abolitionist bar was to choreograph disputes about alleged fugitive slaves before free state juries in the hope that juries would decline to enforce the Fugitive Slave Act. (See fugitive slavery.) Modern civil rights lawyers have experienced analogous difficulty in persuading juries to return verdicts in favor of unpalatable plaintiffs whose rights may have been violated by a popularly responsible official.

Finally, the choice of forum involves a decision about the identity of the judge or, in less polite terms, judge-shopping. The identity of the judge in a constitutional case is extremely important for two reasons, one obvious and one less well understood. The obvious reason for judge-shopping involves the judge's politics. Because constitutional cases often turn on a clash of values and because the urgency with which a judge views a constitutional case may well depend on his or her view of the relative importance of the conflicting values, the same case may be decided differently by equally competent judges with differing value systems.

The less obvious reason why judge-shopping is important in constitutional cases involves the judge's technical competence. Victory for the plaintiff in constitutional cases depends upon persuading a judge that constitutional doctrine requires the overturning of a presumptively valid decision by another government official. Unless a judge is equipped to understand and evaluate complex argumentation about the meaning of ambiguous textual provisions and judicial precedent, it will be impossible to persuade the judge that doctrinal factors compel a decision for the plaintiff. Because the inertial advantage in constitutional cases almost always favors government defendants—failure to persuade the judge to act results in perpetuation of the challenged status quo—the inability of a judge to grapple with complex argumentation generally works to the disadvantage of a constitutional plaintiff.

In addition to care in selecting a forum, constitutional litigators expend a good deal of energy on the choice of a plaintiff, seeking to project the most sympathetic and appealing fact pattern. Because the judge's view of the equities may play a substantial role in the outcome of a constitutional case, the capacity of a constitutional plaintiff to evoke sympathy can be crucial. Constitutional lawyers have learned, moreover, that courts respond most favorably to fact patterns that emerge naturally from the interrelationship between a constitutional plaintiff and the government, but balk at being asked to decide artificially constructed test cases.

A difficult decision constitutional litigators face in selecting a plaintiff is whether to bring the case as an individual action involving only named individuals or as a class action on behalf of all similarly situated persons. Militating in favor of class action status is its increased impact. A single class action can provide relief to thousands of people. Class actions, however, have drawbacks. Against the prospect of increased impact must be weighed the risk of loss, for members of a losing class are generally bound by the loss. Moreover, class actions can act as red flags to judges who would be sensitive to the claims of an individual plaintiff but who are reluctant to become involved in litigation seeking institutional change.

The selection of a defendant in a constitutional case also requires careful thought. Most important, the defendant must be capable of providing adequate relief. If injunctive relief is sought, the defendant must be sufficiently senior in the bureaucratic hierarchy to be able to promulgate and implement the changes sought by the action. At the same time, of course, the defendant must be sufficiently involved in the factual dispute giving rise to the lawsuit to justify naming him as an adverse party. If damages are sought, the defendant must have a sufficiently "deep pocket" to pay the judgment. A damage award against a judgment-proof defendant is hardly worth the effort.

One method of dealing with both the need for a high-ranking defendant and the quest for financial solvency is the naming of an entity-defendant such as the City of New York or the United States in addition to the individual defendants. The extremely complicated interplay between rules limiting the extent to which government entities can be sued in constitutional cases and plaintiffs' interest in suing government entities poses one of the serious tactical dilemmas in constitutional litigation.

A final—and less empirically verifiable—concern in selecting a defendant flows from what may be called the "Redneck-Mandarin dichotomy," which seeks to match a defendant and a judge from different educational and social backgrounds in the hope that the judge will be less constrained in exercising vigorous review powers. Although such an assumption is highly speculative, many constitutional litigators believe, for example, that they perceive a difference between many judges' willingness to exercise vigorous review of the actions of low-ranking police officers and the same judges' willingness to review the decisions of police commissioners.

Given the difficulty of overcoming the inertial advantage enjoyed by the government in constitutional cases, strategic considerations often play a role in the articulation of plaintiff's theory of recovery. It is often advisable to proceed by incremental stages and to develop alternatives to the primary constitutional theory. Thus, for example, litigation aimed at the overruling of the separate but equal doctrine enunciated by plessy v. ferguson (1896) proceeded by carefully calibrated constitutional steps designed to develop sufficient momentum to make the final decision in brown v. board of education (1954) possible. It is, however, extremely difficult to execute a sustained litigation campaign over time, for the factors of chance and changing tides of legal analysis are difficult to predict. On the other hand, asking for too much too soon in the absence of a carefully laid doctrinal foundation places an intolerable degree of pressure on even a sympathetic judge.

In an effort to lessen the tension between constitutional litigation and democratic political theory, litigators often seek to articulate a process-based alternative to their principal substantive theory. Thus, litigators attacking first amendment violations often invite the court to seize upon a narrower, process-based claim such as vagueness or overbreadth as the basis for invalidating a statute, rather than confront the substantive question of the legislature's power to enact it at all. Similarly, constitutional litigators often seek to link their constitutional theories with nonconstitutional claims, such as a claim based on a statute or a common law tort. Posing alternative theories of recovery provides a judge with a less dramatic means of protecting a constitutional value while providing effective relief to the plaintiff. Of course, many such alternative theories of recovery are subject to modification by the legislature, but the short-term result is often indistinguishable from success of the constitutional claim.

Although much litigation strategy depends on a perception of the degree to which constitutional law is shaped by value judgments, constitutional lawyers also recognize the extent to which constitutional litigation shapes community values. The process of bringing a constitutional lawsuit is educational as well as remedial. It seeks to expose the judge to a set of facts and a legal reality that would ordinarily be far from his or her consciousness. It seeks to inform the public of the existence of a social problem that, even if not ultimately amenable to constitutional resolution, requires increased public attention. Viewed as a part of the process by which the interests of the politically powerless can be protected in a democracy, constitutional litigation provides a mechanism not only for classic remedial action but for a sharpening of the underlying social issues for ultimate political resolution. Thus, for example, although under current legal standards it is difficult to establish a violation of the constitutional right of a minority community to receive equal municipal services (discriminatory purpose, not merely disparate effect, must be proven), constitutional litigation provides a forum for the dramatization of unequal treatment as a first step to a political resolution. Similarly, although only the most optimistic believed that courts would actually stop the vietnam war because it was supposedly carried on in violation of Article 1, section 8, of the Constitution, the repeated presentation of the issue both shaped public perception of the war and helped pave the way for the passage of the War Powers Resolution which attempted to deal with the legal issue of undeclared war.

Two major constraints limit the use of constitutional litigation as an educational vehicle. First is the ethical obligation to refrain from presenting frivolous or inappropriate claims to a court. Judicial attention is a scarce national resource which must be rationed, and lawyers must be prudent in presenting claims that cannot win. In the absence of a good faith belief in the legal—as opposed to the moral—soundness of a claim, it should not be presented to a court. Moreover, even if a claim is sufficiently substantial to satisfy ethical considerations, tactical considerations often argue against presenting a weak claim for adjudication. Losing a constitutional case risks the enunciation of dangerous precedent and acts to legitimate the challenged activity. Thus, although constitutional litigation plays an educational as well as a remedial role, its educational role should be a by-product of a bona fide attempt to secure a legal remedy.

A significant dilemma in planning and executing litigation strategy in constitutional cases is posed by the potential for conflict between the best interest of a plaintiff and the furtherance of the cause that precipitated the case into court. For example, a plaintiff who has gone to court to vindicate a principle and who poses a powerful test case may be confronted with a settlement offer which, while advantageous to the plaintiff, leaves the legal issue unresolved. Constitutional lawyers, while recognizing this conflict, generally resolve it in favor of the plaintiff and recommend acceptance to their clients, who then make the final decision. Despite the recognition that the interest of the client in a constitutional case should predominate over the advancement of the cause, a disturbing tendency exists on the part of both bench and bar to use a constitutional plaintiff as a convenient vehicle to trigger the enunciation of norms that may benefit society as a whole but which do little for the parties before the Court. William Marbury never did get his commission. (See marbury v. madison.)

Once a constitutional case is underway, three recurring tactical issues arise. Should immediate relief be sought, usually in the form of a preliminary injunction ? Should the case be pursued as an abstract issue of law or should substantial resources be expended in developing the facts? And how broad a remedy should be sought? It is impossible to formulate even a general rule governing these three issues, except that attorneys with weak cases rarely seek preliminary injunctions and that issues of law should not be presented to a potentially hostile court in the absence of clearly established fact, given that a judge's freedom of action is greatest in determining the facts on an ambiguous record.

A parallel tactical issue defendants in a constitutional case face is whether to move to dismiss—and, thus, to assume the truth of the facts alleged in the complaint for the purposes of the motion—or to force plaintiffs to prove their facts by going to trial. Surprisingly, most defendants, in an effort to save time and resources, attempt dismissal motions, which require courts to rule on the theoretical validity of plaintiff's case without requiring plaintiff to establish the facts. Much constitutional law has been made in denying motions to dismiss and thus creating important legal precedents in cases where plaintiffs might have experienced difficulty in proving their allegations.

Finally, in presenting a constitutional case to a judge, a constitutional litigator will often seek to place it within one of three categories posing the least tension with democratic political theory in order to free the judge to exercise vigorous review. If the case involves a member of a discrete and insular minority, constitutional litigators will stress the inability of unpopular or disadvantaged minority groups to protect themselves within the traditional political process, thus invoking the special responsibility of courts to act as a bulwark against majoritarian overreaching. If the case involves significant political values, constitutional litigators will stress the responsibility of courts to guarantee the proper functioning of the democratic process. It is not antidemocratic, they argue, for a court to prevent the majority from refusing to permit the democratic process to function properly. If the case involves a "fundamental" value, like marriage or reproductive autonomy, constitutional litigators will argue that the importance of such values warrants increased judicial protection. This third category involves the most controversial exercises of judicial power, because the selection of "fundamental" values appears subjective.

Ultimately, litigation strategy in constitutional cases, even at its most sophisticated, can exert only a relatively weak influence on the outcome. The adjudication of issues that impinge on deeply held values and in many other systems would be relegated solely to the political process is an inherently unpredictable phenomenon. No other area of law fits Tolstoy's vision of history so well as the claim of constitutional lawyers to be able to influence the ocean on which they most often bob like corks.

Burt Neuborne


Cover, Robert M. 1975 Justice Accused: Anti-Slavery and the Judicial Process. New Haven, Conn.: Yale University Press.

Greenburg, Jack 1977 Judicial Process and Social Change: Constitutional Litigation. St. Paul, Minn.: West Publishing Co.

Kluger, Richard 1975 Simple Justice. New York: Knopf. Neuborne, Burt 1977 The Myth of Parity. Harvard Law Review 90:1105.