Judicial Strategizing

Copyright 2000 Jon Roland

In my paper, "How stare decisis Subverts the Law",[1] I discussed how legal positions can drift outside the limits imposed by a constitution through the operation of the doctrine of stare decisis and such rules as 50-page limits on briefs. In this paper, I will present tips on how to deliberately subvert the constitution by building a body of case law, and suggest ways such efforts can be countered. Keep in mind that trial opinions are generally not published or citable as precedents, only opinions on appeal, and that appeals courts can generally take only a small proportion of the cases filed, and tend to favor taking those in which there is a conflict among the decision in the lower courts. The federal courts are divided into districts, organized into "circuits" for appeal, and the Supreme Court takes only about 75 cases on appeal each year out of the more than 75,000 cases filed, mainly cases in which different circuits have established conflicting precedents. Law review articles, however, are citable, along with the cases they cite, so that writing and getting law review articles published can overcome the nonpublication of trial court opinions.

Tip 1. Develop a plan that leads to the desired objective by small steps. If you want the courts to sustain a position that they presently will not, don't try to get there in a single long step. That will stimulate political opposition that might succeed in legislatively blocking your objective. Start from positions the courts presently sustain, and plot a series of small steps that lead from where they are to where you want them to go, each of which might go unnoticed and provoke little political opposition. This is not likely to be a single path, but a bundle of mutually supporting paths that lay the basis for the ultimate objective, each consisting of a series of steps that must be taken in a certain order, most or all of which must be completed, until the stage is set for a case that can use them to achieve the objective. This is sometimes called "boiling the frog".

Counter 1. Anticipate the opposing plan, and develop your own. If you can anticipate the opposition objective, and the steps leading to it, you can try to defeat their objective by defeating the steps to it. At the same time, you need to set your own objectives, and the steps of plans leading to them, especially when those steps block the steps of the opposition. "Frog boiling" can work both ways.

Tip 2. Choose your targets carefully. Find a prospective defendant, or create one, that you can defeat at trial and on appeal, on issues that will establish one or more precedents pursuant to the steps in the long-term plan. The following are qualifying attributes:

  1. In a jurisdiction in which both the trial and appellate courts are prejudiced toward the objective position, or in which the judges are susceptible to manipulation, or where one can get the right judge to hear the case.
  2. Unable to afford competent defense, so can get public defender appointed who will deliver him up on the issues sought to get precedents on, or else a private attorney who can be manipulated.
  3. Personally unsympathetic and unattractive, preferably with a criminal record. Membership in a disfavored ethnic, religious, or other group may work. Especially good is a defendant who espouses radical or bizarre legal theories that discredit him, but which he argues well enough to get them mentioned, adversely, in the court opinion. Try him in the media with a steady stream of press releases, interviews, press conferences, friendly journalists, and other methods.
  4. Facts which make the defendant's case weak, but not too weak for him to get an appeal, so that he can be defeated on other issues than the one on which you want to establish a precedent, but strong enough on that issue so that the court will at least mention it in the opinion on appeal, either ruling against him on it, or just dragging that issue down with him by linking it to the other issues.

Counter 2. Pre-empt, if possible, but only defend the defensible. Don't wait for the opposition to prosecute an easy target and get their precedent. Get someone with legal standing and a strong position to initiate an action, perhaps for declaratory relief, on the issues which the opposition seeks to establish as a precedent. If the opposition has already commenced prosecution of a target, first decide if the target is defensible. If not, try to persuade him not to make an appeal that he will lose. If he can be defended, and the resources to do so effectively can be assembled, then it may be worth while doing so if that can make the difference. Otherwise, it may be better to launch a pre-emptive action, perhaps in a different jurisdiction, to create a conflict that will have to be resolved by a higher appeals court.

Tip 3. Don't appeal a loss on appeal — get another win that weakens it. If the defendant wins his appeal, and there is a risk his position might be sustained on further appeal, don't appeal the case. Instead, launch several other cases that can be distinguished from the one lost in so many ways that the value of the lost case as a precedent is effectively neutralized, and eventually buried.[2]

Counter 3. Publicize the good precedent and get it cited favorably in cases and journal articles. Don't let the opposition bury the good precedent or allow it to be ignored. Get it cited in law review articles, legal reports and treatises, briefs, and mentioned in general press articles. If possible, build some wins on it, especially on appeal, perhaps in other jurisdictions, so that any further loss will create a conflict that will make an appeal to the Supreme Court likely. You may be able to get a trial court opinion published and cited if the issue is important, and there was no appeal, and use that cite in other cases.

Tip 4. Bury your strategy in public documents. Don't invite opposition by revealing your objective and plan in public documents, especially in legal briefs. Justify each step as reasonable in itself and not a threat to constitutional compliance.

Counter 4. Expose the opposition strategy in public documents. Make it clear that the proposed small step leads where no one desiring constitutional compliance wants to go.


Notes:

1. Online at http://www.constitution.org/col/0610staredrift.htm

2. A good example of this is U.S. v. Rock Island Armory, Inc., 773 F.Supp. 117 (C.D.Ill.1991). The federal government lost, and since a loss on appeal would have been devastating to its entire system of firearm laws, chose not to appeal it, but rather to win other cases, especially in other circuits, and to establish precedents there that would diminish the influence of this case, which has been cited despite not being an appeal opinion.